Exhibit 99.B(h)(6)
AMENDMENT TO AMENDED AND RESTATED
ADMINISTRATION AGREEMENT
AMENDMENT made as of the 30th day of March, 2004, between Laudus Trust (the
"Trust"), a Massachusetts business trust having its principal place of business
at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, and BISYS FUND SERVICES OHIO, INC.
("BISYS"), an Ohio corporation having its principal place of business at 0000
Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, to that certain Amended and Restated
Administration Agreement dated January 1, 2003, as amended (the "Agreement"),
under which BISYS performs certain management and administration services for
the Trust. All capitalized terms used but not defined herein shall have the
meaning given to them in the Agreement.
WHEREAS, the Agreement provides that BISYS shall perform such additional
services as are mutually agreed upon in writing by the parties;
WHEREAS, the Trust desires that BISYS perform certain additional services
for the Trust;
WHEREAS, BISYS is willing to perform the services enumerated in this
Amendment on the terms and conditions set forth in this Amendment; and
WHEREAS, BISYS and the Trust wish to enter into this Amendment to the
Agreement in order to set forth the terms under which BISYS will perform the
services enumerated herein on behalf of the Trust, and to supplement and clarify
certain provisions of the Agreement.
NOW, THEREFORE, in consideration of the covenants herein contained, the
Trust and BISYS hereby agree as follows:
1. COMPLIANCE SERVICES
BISYS will provide the following additional services to assist the Trust in
connection with its obligations under Rule 38a-1 of the Investment Company Act
of 1940:
(a) Perform risk-based testing and an annual assessment of the compliance
procedures of each BISYS service group (i.e., transfer agency, fund accounting,
administration) that provides services to the Trust and of any BISYS affiliate
acting as the Trust's distributor, and provide copies of those compliance
procedures and any amendments thereto as the Trust may require to comply with
Rule 38a-1.
(b) Provide information reasonably requested by the Board of Trustees of
the Trust (the "Board") in connection with the Board's determination regarding
the adequacy and effectiveness of the compliance procedures described in (a)
above.
(c) Provide reports to the Trust's Chief Compliance Officer regarding the
risk-based testing and annual assessment described in (a) above.
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2. SUB-CERTIFICATIONS
To assist the Trust in connection with its obligations under the
Xxxxxxxx-Xxxxx Act of 2002, Rule 30a-2 under the 1940 Act, and related laws
(collectively, "Xxxxxxxx-Xxxxx"), BISYS will internally establish and maintain
its own controls and procedures designed to ensure that information recorded,
processed, summarized, or reported by BISYS on behalf of the Trust and included
in the Trust's reports on Form N-CSR and any other reports required to be
certified pursuant to Xxxxxxxx-Xxxxx (collectively, "Reports") is (i) recorded,
processed, summarized, and reported by BISYS within the time periods specified
in the Commission's rules and forms and the Trust's disclosure controls and
procedures (the "Trust DCPs"), and (ii) communicated to the relevant officers of
the Trust who are required to certify Reports under Xxxxxxxx-Xxxxx ("Certifying
Officers"), in a manner consistent with the Trust DCPs.
Solely for the purpose of providing a Certifying Officer with a basis for
his or her certification of any Report, BISYS will (i) provide a
sub-certification with respect to BISYS's services during any fiscal period in
which BISYS served as a financial administrator to the Trust consistent with the
requirements of the certification required under Xxxxxxxx-Xxxxx and/or (ii)
inform the Certifying Officers of any reason why all or part of such required
certification would be inaccurate. In rendering any such sub-certification,
BISYS may (a) limit its representations to information prepared, processed and
reported by BISYS; (b) rely upon and assume the accuracy of the information
provided by officers (other than employees or officers of BISYS), service
providers, and other authorized agents of the Trust and compliance by such
officers, service providers, and agents with the Trust DCPs; and (c) assume that
the Trust has selected appropriate accounting policies for the Fund(s).
The Trust shall assist and cooperate with BISYS (and shall cause its
officers, service providers, and agents to assist and cooperate with BISYS) to
facilitate the delivery of information requested by BISYS in connection with the
preparation of any Report, so that BISYS may submit a draft of such Report to
the Trust's DCP Committee prior to the date it is to be filed.
3. PROVISION OF EXECUTIVE OFFICERS
(a) AML COMPLIANCE OFFICER. It is understood that the Trust is a financial
institution subject to the law entitled Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
("U.S.A. Patriot") Act of 2001 and the Bank Secrecy Act (collectively, the "AML
Acts"), and is required to comply with the AML Acts and applicable regulations
thereunder (collectively, the "Applicable AML Laws").
Subject to the provisions of this of this Section 3(a) and Section 3(c)
below, BISYS agrees to make available to the Trust a person to serve as the
Trust's anti-money laundering compliance officer ("AML Compliance Officer").
BISYS's obligation in this regard shall be met by providing an appropriately
qualified employee or agent of BISYS (or its affiliates) who, in the exercise of
his or her duties to the Trust, shall act in good
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faith and in a manner reasonably believed by him or her to be (i) in the best
interests of the Trust and (ii) consistent with applicable law. Subject to the
relevant terms of the transfer agency or other services agreement under which
BISYS provides certain anti-money laundering services to the Trust, the AML
Compliance Officer will assist the Trust in operating the written anti-money
laundering program adopted by the Trust's Board and provided to BISYS (the "AML
Program"), and shall perform the duties assigned to the AML Compliance Officer
which are set forth in the AML Program.
The Trust shall provide copies of its anti-money laundering compliance
reports and such other books and records of the Trust as the AML Compliance
Officer deems necessary or desirable in order to carry out his or her duties
hereunder on behalf of the Trust. Each party also agrees to provide promptly to
the other party (and to the AML Compliance Officer), upon request, copies of
other records and documentation relating to the compliance by such party with
Applicable AML Laws (in relation to the Trust), and each party also agrees
otherwise to assist the other party (and the AML Compliance Officer) in
complying with the requirements of the AML Program and Applicable AML Laws. Each
party agrees to retain a copy of all documents and records prepared, maintained
or obtained by it relating to shareholders and transactions for a period of at
least five (5) years from the termination of the relationship with each such
shareholder or the date of execution of each such transaction. The foregoing is
not intended to limit any obligation to retain any specified records for any
other period that may be specified in the AML Program or under Applicable AML
Laws.
(b) PROVISION OF CERTIFYING OFFICER(S). Subject to the provisions of this
Section 3(b) and Section 3(c) below, BISYS shall make a BISYS employee available
to the Trust to serve, upon designation as such by the Board, as the Chief
Financial Officer of the Trust, or under such other title to perform similar
functions, and which is a Certifying Officer under Xxxxxxxx-Xxxxx. BISYS's
obligation in this regard shall be met by providing an appropriately qualified
employee of BISYS (or its affiliates) who, in the exercise of his or her duties
to the Trust, shall act in good faith and in a manner reasonably believed by him
or her to be (i) in the best interests of the Trust and (ii) consistent with
applicable law. BISYS shall select, and may replace, the specific employee that
it makes available to serve in the designated capacity as a Certifying Officer,
in BISYS's reasonable discretion, taking into account such person's
responsibilities concerning, and familiarity with, the Trust's operations.
For so long as BISYS provides a Certifying Officer, the Trust and BISYS
shall establish mutually agreeable procedures governing the certification of
Reports by Certifying Officers, and the parties shall comply with such
procedures in all material respects. Such procedures shall include as follows:
(i) The establishment and maintenance by the Trust of a Disclosure
Controls and Procedures Committee (the "DCP Committee") to evaluate
the Trust DCPs in accordance with Rule 30a-3 under the 1940 Act. The
DCP Committee shall include the Chief Financial Officer and such
individuals as may be necessary or appropriate to enable the DCP
Committee to ensure the cooperation of, and to oversee, each of the
Trust's service
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providers and agents that records, processes, summarizes, or reports
information contained in Reports (or any information from which such
information is derived), provided that the DCP Committee shall not
be comprised of a majority of employees or officers of BISYS.
(ii) The requirement for (a) service providers to provide
sub-certifications on internal controls, upon which the Certifying
Officers may rely in certifying Reports, in form and content
reasonably acceptable to the Certifying Officers and consistent with
Xxxxxxxx-Xxxxx, and (b) such sub-certifications to be delivered to
the DCP Committee and the Certifying Officers sufficiently in
advance of the DCP Committee meeting described in (iii) below.
(iii) The requirement for the DCP Committee to (a) establish a schedule to
ensure that all required disclosures in any Report, including the
financial statements, are identified and prepared in a timeframe
sufficient for it to review such disclosures, (b) meet prior to the
filing date of each Report to review the accuracy and completeness
of the relevant Report, (c) record its considerations and
conclusions in a written memorandum sufficient for it to adequately
to support conclusions pertaining to Trust DCPs as required by Item
9 of Form N-CSR or other Report, and (d) maintain a record of all
information delivered to or reviewed by the DCP Committee as
described in this section 3(b). In conducting its review and
evaluations, the DCP Committee shall:
(A) review SAS 70 reports pertaining to BISYS and other service
providers, if applicable, or in the absence of any such
reports, consider the adequacy of the sub-certifications
supplied by the service providers;
(B) consider whether there are any significant deficiencies or
material weaknesses in the design or operation of the Trust
DCPs or internal controls over financial reporting that could
adversely affect the Trust's ability to record, process,
summarize, and report financial information, and in the event
that any such weaknesses or deficiencies are identified,
disclose them to the Trust's Certifying Officers, audit
committee, and auditors;
(C) consider whether, to the knowledge of any member of the DCP
Committee, there has been or may have been any fraud, whether
or not material, and, if so, disclose the facts and
circumstances thereof to the Certifying Officers, and the
Trust's audit committee and auditors; and
(D) determine whether there was any change in internal controls
over financial reporting that occurred during the Trust's most
recent fiscal half-year that has materially affected or is
reasonably likely
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to materially affect, the Trust's internal control over
financial reporting.
A Certifying Officer shall have the full discretion to decline to certify a
particular Report that fails to meet the standards set forth in the
certification, and to report matters involving fraud or other failures to meet
the standards of applicable law to the audit committee of the Board.
The Trust shall, in its own capacity, take all reasonably necessary and
appropriate measures to comply with its obligations under Xxxxxxxx-Xxxxx.
Without limitation of the foregoing, except for those obligations which are
expressly delegated to or assumed by BISYS in this Agreement, the Trust shall
maintain responsibility for, and shall support and facilitate the role of each
Certifying Officer and the DCP Committee in, designing and maintaining the
Trust's DCPs in accordance with applicable laws.
(c) EXECUTIVE OFFICERS. It is mutually agreed and acknowledged by the
parties that the Chief Financial Officer contemplated under the provisions of
this Section 3 of this Agreement is an executive officer of the Trust
("Executive Officer"). In addition, the parties agree that the AML Compliance
Officer shall be deemed to be an Executive Officer of the Trust for purposes of
this Section 3(c). The provisions of Sections 3(a) and (b) are subject to the
internal policies of BISYS concerning the activities of its employees and their
service as officers of funds (the "BISYS Policies"). A copy of the BISYS
Policies have been provided to the Trust. The Trust's governing documents
(including its Agreement and Declaration of Trust and By-Laws) and/or
resolutions of its Board shall contain mandatory indemnification provisions that
are applicable to each Executive Officer, that are designed and intended to have
the effect of fully indemnifying him or her and holding him or her harmless with
respect to any claims, liabilities and costs arising out of or relating to his
or her service in good faith in a manner reasonably believed to be in the best
interests of the Trust, except to the extent he or she would otherwise be liable
to the Trust by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his or her office.
The Trust shall provide coverage to each Executive Officer under its
directors and officers liability policy that is appropriate to the Executive
Officer's role and title, and consistent with coverage applicable to officers
holding similar positions of executive management.
In appropriate circumstances, each Executive Officer shall have the
discretion to resign from his or her position, in the event that he or she
reasonably determines that there has been or is likely to be (a) a material
deviation from the BISYS Policies, (b) an ongoing pattern of conduct involving
the continuous or repeated violation of Applicable AML Laws, or (c) a material
deviation by the Trust from the terms of this Agreement governing the services
of such Executive Officer that is not caused by such Executive Officer or BISYS.
In addition, each Executive Officer shall have reasonable discretion to resign
from his or her position in the event that he or she determines that he or she
has not received sufficient cooperation from the Trust or its service providers
to make an informed determination regarding any of the matters listed above.
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Each Executive Officer may, and the Trust shall, promptly notify BISYS of
any issue, matter or event that would be reasonably likely to result in any
claim by the Trust, one or more Trust shareholder(s) or any third party which
involves an allegation that any Executive Officer failed to exercise his or her
obligations to the Trust in a manner consistent with applicable laws (including
but not limited to any claim that a Report failed to meet the standards of
Xxxxxxxx-Xxxxx and other applicable laws).
Notwithstanding any provision of the Administration Agreement or any other
agreement or instrument that expressly or by implication provides to the
contrary:
(i) it is expressly agreed and acknowledged that BISYS cannot ensure
that the Trust complies with Applicable AML Laws, provided that, for
the avoidance of doubt, nothing herein is intended to limit any
duties or obligations BISYS may have under any Transfer Agency
Agreement between BISYS and the Trust; and
(ii) whenever an employee or agent of BISYS serves as an Executive
Officer of the Trust, as long as such Executive Officer acts in good
faith and in a manner reasonably believed to be in the best
interests of the Trust (and would not otherwise be liable to the
Trust by reason of willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of his
or her office), the Trust shall indemnify the Executive Officer and
BISYS and hold the Executive Officer and BISYS harmless from any
loss, liability, expenses (including reasonable attorneys fees) and
damages incurred by them arising out of or related to the service of
such employee or agent of BISYS as an Executive Officer of the
Trust.
4. FEES
In addition to all fees, expenses and miscellaneous fees or charges
provided for under the Agreement, BISYS shall be entitled to receive from the
Trust the amounts set forth on Schedule A hereto, reflecting the amounts charged
by BISYS for the performance of services and any out-of-pocket expenses in
connection with its performance hereunder, including travel by the Executive
Officers, provided that travel expenses will be subject to the Trust's prior
approval.
5. INFORMATION TO BE FURNISHED BY THE TRUST
(a) The Trust has furnished or shall promptly furnish to BISYS copies of
the Trust's Compliance Program, AML Program and the Trust DCPs, each as amended
and current as of the date of this Agreement.
(b) The Trust shall furnish BISYS written copies of any amendments to, or
changes in, any of the items referred to in Section 5(a) hereof, forthwith upon
such amendments or changes becoming effective. In addition, the Trust agrees
that no amendments will be made to the AML Program, or the Trust DCPs which
might have the effect of changing the procedures employed by BISYS in providing
the services agreed to hereunder or which amendment might affect the duties of
BISYS hereunder unless the
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Trust first obtains BISYS's consent, which consent shall not be withheld
unreasonably, in order to be binding on BISYS hereunder.
(c) BISYS may rely on all documents furnished to it by the Trust and its
agents in connection with the services to be provided under this Agreement,
including any amendments to or changes in any of the items to be provided by the
Trust pursuant to Section 5(a).
6. REPRESENTATIONS AND WARRANTIES
(a) The Trust represents and warrants that (i) the Board has approved and
adopted the AML Program, (ii) the provision of certain officers of the Trust by
BISYS, as provided in Section 3 of this Amendment, has been approved by the
Board, and (ii) each of the individuals nominated by BISYS as the Trust's AML
Compliance Officer or Chief Financial Officer has been, or will be, approved and
appointed as an officer of the Trust by the Board.
(b) BISYS acknowledges and agrees that in connection with its services
under the Agreement and this Amendment that it receives confidential portfolio
holdings information with respect to the Funds. BISYS agrees that it will treat
such portfolio holdings information as Confidential Information in accordance
with Section 25 of the Agreement, and will not use such information as a basis
for trading in securities or making investment decisions.
(c) Each party represents and warrants to the other that this Amendment has
been duly authorized and, when executed and delivered by it, will constitute a
legal, valid and binding obligation of it, enforceable against it in accordance
with its terms, subject to bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting the rights and remedies of
creditors and secured parties.
7. MISCELLANEOUS
(a) This Amendment supplements and amends the Agreement. The provisions set
forth in this Amendment supersede all prior negotiations, understandings and
agreements bearing upon the subject matter covered herein, including any
conflicting provisions of the Agreements or any provisions of the Agreements
that directly cover or indirectly bear upon matters covered under this
Amendment.
(b) Each reference to the Agreement in the Agreement and in every other
agreement, contract or instrument to which the parties are bound, shall
hereafter be construed as a reference to the Agreements as separately amended by
this Amendment. Except as provided in this Amendment, the provisions of the
Agreement remain in full force and effect (including, without limitation, the
term of the Agreement). No amendment or modification to this Amendment shall be
valid unless made in writing and executed by each party hereto.
(c) Paragraph headings in this Amendment are included for convenience only
and are not to be used to construe or interpret this Amendment.
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(d) This Amendment may be executed in counterparts, each of which shall be
an original but all of which, taken together, shall constitute one and the same
agreement.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed all as of the day and year first above written.
LAUDUS TRUST
By: /s/ Xxxx X. Xxxxxxxx
------------------------
Name: Xxxx X. Xxxxxxxx
Title: President
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxx Xxxxxxx
------------------------
Name: Xxxx Xxxxxxx
Title: President
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SCHEDULE A
TO THE AMENDMENT TO THE
ADMINISTRATION AGREEMENT
BETWEEN LAUDUS TRUST
AND BISYS FUND SERVICES, INC.
DATED MARCH 30, 2004
FEES
GENERAL
The fees set forth below are an aggregate fee covering services both to the
Trust and to the Laudus Variable Insurance Trust (the "VI Trust"). The fees
shall be billed monthly and allocated proportionately between the Trust and the
VI Trust based on their relative net assets as of the last business day of the
period to which such xxxx applies. Any out-of-pocket expenses attributable to
both the Trust and the VI Trust shall be similarly allocated.
COMPLIANCE SERVICES
$20,000 per annum
AML OFFICER
$15,000 per annum
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