EXHIBIT (h)(1)
TRANSFER AGENCY AGREEMENT
AGREEMENT made this 1st day of August, 2004, between Asset Management
Fund (the "Trust"), a Delaware statutory trust having its principal place of
business at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, 00000, and BISYS Fund
Services Ohio, Inc. ("BISYS"), an Ohio corporation having its principal place of
business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Trust and BISYS entered into a Transfer Agency Agreement
dated September 13, 1999 (the "1999 Agreement"), whereby BISYS agreed to perform
transfer agency services for the Trust, which has continued in effect through
the date hereof;
WHEREAS, the Trust desires that BISYS continue to perform transfer
agency services for the Trust and each investment portfolio of the Trust, as now
in existence and listed on Schedule A hereto, or as hereafter may be established
from time to time (individually referred to herein as the "Fund" and
collectively as the "Funds");
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement; and
WHEREAS, BISYS and Trust wish to enter into a new Agreement in order to
set forth the terms under which BISYS will perform the transfer agency services
set forth herein for the Trust.
NOW, THEREFORE, in consideration of the covenants hereinafter
contained, the Trust and BISYS hereby agree as follows:
1. SERVICES
BISYS shall perform for the Trust the transfer agent services set forth
in Schedule B hereto. BISYS also agrees to perform for the Trust such special
services incidental to the performance of the services enumerated herein as
agreed to by the parties from time to time. BISYS shall perform such additional
services as are provided on an amendment to Schedule B hereof, in consideration
of such fees as the parties hereto may agree.
BISYS agrees to perform the services described herein in accordance
with all applicable laws, rules and regulations (including, where applicable,
Generally Acceptable Accounting Principles) and in accordance with any
reasonable instructions of the Trust and the Trust's Declaration of Trust,
Bylaws, Prospectus and Statement of Additional Information.
BISYS may utilize agents in its performance of its services and, with
prior notice to the Trust, may appoint in writing other parties qualified to
perform transfer agency services reasonably acceptable to the Trust
(individually, a "Sub-Agent") to carry out some or all of its responsibilities
under this Agreement; provided, however, that (i) the Board's approval shall be
required to establish an arrangement in which a Sub-Agent acts as a sub-transfer
agent; and (ii) any agent (including any Sub-Agent) retained by BISYS shall be
the agent of BISYS and not the agent of the Trust, and that BISYS shall be fully
responsible for the acts of such agent (or Sub-Agent) and shall not be relieved
of any of its responsibilities hereunder by the appointment of an
agent (or Sub-Agent). In the event that a Sub-Agent is retained by the Trust
(and/or by BISYS at the request or instruction of the Trust), the foregoing
shall not apply to the extent it is inconsistent with any written agreement(s)
entered into by the parties with respect thereto.
2. FEES
The Trust shall pay BISYS for the services to be provided by BISYS
under this Agreement in accordance with, and in the manner set forth in the
Omnibus Fee Agreement between the Trust and BISYS dated August 1, 2004 (the "Fee
Agreement"). Fees for any additional services to be provided by BISYS pursuant
to an amendment to Schedule B hereto shall be subject to mutual agreement at the
time such amendment to Schedule B is entered into.
3. REIMBURSEMENT OF EXPENSES AND MISCELLANEOUS SERVICE FEES
(a) In addition to paying BISYS the fees set forth in the Fee
Agreement, the Trust agrees to reimburse BISYS for BISYS' reasonable
out-of-pocket expenses (for which no xxxx-up for BISYS overhead expenses shall
be included) in providing services hereunder, including without limitation, the
following:
(i) All freight and other delivery and bonding charges
incurred by BISYS in delivering materials to and from
the Trust and in delivering all materials to
shareholders;
(ii) All direct telephone, telephone transmission and
telecopy or other electronic transmission expenses
incurred by BISYS in communication with the Trust,
the Trust's investment adviser or custodian, dealers,
shareholders or others as required for BISYS to
perform the services to be provided hereunder;
(iii) Sales taxes paid on behalf of the Trust;
(iv) The cost of microfilm or microfiche or other
electronic retention of records or other materials;
(v) Courier (delivery expenses);
(vi) Check processing fees;
(vii) Records retention / storage fees;
(viii) Fulfillment;
(ix) XXX custody and other related fees;
(x) NSCC and related costs;
(xi) Costs of statements and confirmations;
(xii) Costs of tax forms;
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(xiii) Costs of all other shareholder correspondence;
(xiv) Costs of stock computer paper and computer disks;
(xv) Costs of labels and envelopes;
(xvi) Post office boxes; and
(xvii) Any expenses BISYS shall incur at the written
direction of an officer of the Trust thereunto duly
authorized.
(b) In addition, BISYS shall be entitled to receive the following fees:
(i) A fee for managing and overseeing the report, print
and mail functions performed by BISYS' third-party
vendors, not to exceed $.04 per page for statements
and $.03 per page for confirmations; fees for
programming in connection with creating or changing
the forms of statements, billed at the rate of $150
per hour; and costs for postage, preparing and
printing statements, labels, envelopes, checks,
reports, letters, tax forms, proxies, notices or
other forms of printed material which shall be
required for the performance of the services to be
provided hereunder;
(ii) System development fees, billed at the rate of $150
per hour, as approved by the Trust, and all
systems-related expenses, agreed in advance,
associated with the provision of special reports and
services pursuant to Item 8 of Schedule C attached
hereto;
(iii) Fees for development of custom interfaces, billed at
a mutually agreed upon rate;
(iv) Ad hoc reporting fees, billed at a mutually agreed
upon rate;
(v) Interactive Voice Response System fees, charged
according o BISYS' standard rate schedule, and
applicable to the level of service (e.g., basic,
transaction, premium) selected;
(vi) Expenses associated with the tracking of "as-of"
trades, billed at the rate of $50 per hour, as
approved by the Trust; and
(vii) Expenses associated with BISYS' anti-fraud procedures
and the performance of delegated services under the
written anti-money laundering program ("AML Program")
adopted by the Trust.
4. EFFECTIVE DATE
This Agreement shall become effective as of the date first written
above (the "Effective Date").
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5. TERM
This Agreement shall continue in effect unless earlier terminated by
either party hereto as provided hereunder until August 1, 2007 (the "Initial
Term"). Thereafter, unless otherwise terminated as provided herein, this
Agreement shall be renewed automatically for successive one-year periods
("Rollover Periods"). This Agreement may be terminated only (i) by mutual
agreement of the parties, or (ii) for "cause," as defined below, upon the
provision of sixty (60) days advance written notice by the party alleging cause,
or (iii) on or after February 1, 2006, at the election of either party, by
provision of ninety (90) days advance written notice of termination or (iv)
prior to February 1, 2006, at the election of the Trust, by provision of one
hundred twenty (120) days advance written notice of termination, subject to the
liquidated damages provision set forth below. Written notice of nonrenewal must
be provided at least ninety (90) days prior to the end of the Initial Term or
any Rollover Period, as the case may be.
For purposes of this Agreement, "cause" shall mean (a) a material
breach of this Agreement that has not been remedied for thirty (30) days
following written notice of such breach from the non-breaching party; (b) a
series of negligent acts or omissions or other breaches of this Agreement which,
in the aggregate, constitutes in the reasonable judgment of the Trust's Board of
Trustees, a serious failure to perform satisfactorily BISYS' obligations
hereunder, (c) a final, unappealable judicial, regulatory or administrative
ruling or order in which the party to be terminated has been found guilty of
criminal or unethical behavior in the conduct of its business; or (d) financial
difficulties on the part of the party to be terminated which are evidenced by
the authorization or commencement of, or involvement by way of pleading, answer,
consent or acquiescence in, a voluntary or involuntary case under Title 11 of
the United States Code, as from time to time is in effect, or any applicable
law, other than said Title 11, of any jurisdiction relating to the liquidation
or reorganization of debtors or to the modification or alteration of the rights
of creditors. BISYS shall not terminate this Agreement pursuant to clause (a)
above based solely upon the Trust's failure to pay an amount to BISYS which is
the subject of a good faith dispute, if (i) the Trust is attempting in good
faith to resolve such dispute with as much expediency as may be possible under
the circumstances, and (ii) the Trust continues to perform its obligations
hereunder in all other material respects (including paying all fees and expenses
not subject to reasonable dispute hereunder).
Notwithstanding the foregoing, following any such termination, in the
event that BISYS, in fact continues to perform any one or more of the services
contemplated by this Agreement (or any Schedule or exhibit hereto) with the
written consent of the Trust, the provisions of this Agreement, including
without limitation the provisions dealing with indemnification, shall continue
in full force and effect. Fees and out-of-pocket expenses incurred by BISYS but
unpaid by the Trust upon such termination shall be immediately due and payable
upon and notwithstanding such termination. BISYS shall be entitled to collect
from the Trust, in addition to the fees and disbursements provided by the Fee
Agreement and Section 3 hereof, the amount of all of BISYS' cash disbursements
in connection with BISYS' activities in effecting such termination, including
without limitation, the delivery to the Trust and/or its distributor or
investment adviser and/or other parties of the Trust's property, records,
instruments and documents upon the presentment by BISYS of invoices for such
cash disbursements.
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If for any reason other than mutual agreement of the parties or
"cause," as defined above, during the first eighteen (18) months of the Initial
Term of this Agreement (i.e., until February 1, 2006), BISYS' services are
terminated hereunder, BISYS is replaced as transfer agent, or a third party is
added to perform all or a part of the services provided by BISYS under this
Agreement (excluding any Sub-Agent appointed as provided in Section 1 hereof),
then the Trust shall make a one-time cash payment, in consideration of the fee
structure and services to be provided under this Agreement, and not as a
penalty, to BISYS equal to the balance that would be due BISYS for its services
hereunder during the remainder of such eighteen-month period, assuming for
purposes of calculation of the payment that such balance shall be based upon the
average number of shareholder accounts and fees payable to BISYS monthly during
the twelve (12) months prior to the date that services terminate, BISYS is
replaced or a third party is added.
In the event the Trust or any Fund is merged into another legal entity
in part or in whole pursuant to any form of business reorganization (including
without limitation a purchase of assets) or is liquidated in part or in whole
prior to February 1, 2006, the parties acknowledge and agree that the liquidated
damages provision set forth above shall be applicable only in those instances in
which BISYS is not retained by the other party to such business reorganization
or any successor entity to provide transfer agency services consistent with this
Agreement, including the compensation provision payable hereunder. The one-time
cash payment referenced above shall be due and payable on the day prior to the
first day in which services are terminated, BISYS is replaced or a third party
is added.
The parties further acknowledge and agree that, in the event services
are terminated, BISYS is replaced, or a third party is added, as set forth
above, (i) a determination of actual damages incurred by BISYS would be
extremely difficult, and (ii) the liquidated damages provision contained herein
is intended to adequately compensate BISYS for damages incurred and is not
intended to constitute any form of penalty.
6. STANDARD OF CARE; UNCONTROLLABLE EVENTS; LIMITATION OF LIABILITY
BISYS shall use reasonable best efforts to ensure the accuracy of all
services performed under this Agreement, but shall not be liable to the Trust
for any action taken or omitted by BISYS in the absence of bad faith, willful
misfeasance, negligence or reckless disregard by it of its obligations and
duties hereunder. The duties of BISYS shall be confined to those expressly set
forth herein, and no implied duties are assumed by or may be asserted against
BISYS hereunder.
BISYS shall maintain adequate and reliable computer and other equipment
necessary or appropriate to carry out its obligations under this Agreement. Upon
the Trust's reasonable request, BISYS shall provide supplemental information
concerning the aspects of its disaster recovery and business continuity plan
that are relevant to the services provided hereunder. Notwithstanding the
foregoing or any other provision of this Agreement, BISYS assumes no
responsibility hereunder, and shall not be liable for, any damage, loss of data,
delay or any other loss whatsoever caused by events beyond its reasonable
control. Events beyond BISYS' reasonable control include, without limitation,
force majeure events. Force majeure events include natural disasters, actions or
decrees of governmental bodies, and communication lines failures that are not
the fault of either party. In the event of force majeure, computer or other
equipment failures or other events beyond its reasonable control, BISYS shall
follow applicable
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procedures in its disaster recovery and business continuity plan and use all
commercially reasonable efforts to minimize any service interruption.
BISYS shall provide the Trust, at such times as the Trust may
reasonably require, copies of reports rendered by independent public accountants
on the internal controls and procedures of BISYS relating to the services
provided by BISYS under this Agreement.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL BISYS, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR EXEMPLARY, PUNITIVE, SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, EACH OF WHICH IS
HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES
WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
7. LEGAL ADVICE
BISYS shall notify the Trust at any time BISYS believes that it is in
need of the advice of counsel (other than counsel in the regular employ of BISYS
or any affiliated companies) with regard to BISYS' responsibilities and duties
pursuant to this Agreement. After so notifying the Trust, BISYS, at its
discretion, shall be entitled to seek, receive and act upon advice of legal
counsel of its choosing, such advice to be at the expense of the Trust unless
relating to a matter involving BISYS' willful misfeasance, bad faith, gross
negligence or reckless disregard of BISYS' responsibilities and duties
hereunder, and BISYS shall in no event be liable to the Trust or any Fund or any
shareholder or beneficial owner of the Trust for any action reasonably taken
pursuant to such advice.
8. INSTRUCTIONS / CERTAIN PROCEDURES, ETC.
Whenever BISYS is requested or authorized to take action hereunder
pursuant to instructions from a shareholder, or a properly authorized agent of a
shareholder ("shareholder's agent"), concerning an account in a Fund, BISYS
shall be entitled to rely upon any certificate, letter or other instrument or
communication (including electronic mail), reasonably believed by BISYS to be
genuine and to have been properly made, signed or authorized by an officer or
other authorized agent of the Trust (other than BISYS or any of its affiliates
or an officer of the Trust that is an officer or employee of BISYS or any of its
affiliates) or by the shareholder or shareholder's agent, as the case may be,
and shall be entitled to receive as conclusive proof of any fact or matter
required to be ascertained by it hereunder a certificate signed by an officer of
the Trust (other than an officer of the Trust that is an officer or employee of
BISYS or any of its affiliates) or any other person authorized by the Trust's
Board of Trustees (hereafter referred to as the "Board") or by the shareholder
or shareholder's agent, as the case may be.
As to the services to be provided hereunder, BISYS will comply with and
may rely conclusively upon the terms of the Prospectuses and Statement of
Additional Information of the Trust relating to the relevant Funds to the extent
that such services are described therein unless BISYS receives written
instructions to the contrary in a timely manner from the Trust.
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The parties hereto may amend any procedures adopted, approved or set
forth herein by written agreement as may be appropriate or practical under the
circumstances, and BISYS may conclusively assume that any special procedure
which has been approved by an executive officer of the Trust (other than an
officer of the Trust that is an officer or employee of BISYS or any of its
affiliates) does not conflict with or violate any requirements of the Trust's
Declaration of Trust, By-Laws or then-current prospectuses, or any rule,
regulation or requirement of any regulatory body.
BISYS acknowledges receipt of a copy of the Trust's policy related to
the acceptance of trades for prior day processing (the "As-Of Trading Policy")
and agrees to apply the As-Of Trading Policy. The Trust may amend the Trust's
As-of Trading Policy from time to time in its sole discretion, provided that any
amendments that materially affect BISYS services or potential liability shall be
subject to prior approval by BISYS.
The Trust acknowledges and agrees that deviations from BISYS' written
transfer agent compliance procedures may involve a substantial risk of loss. In
the event an authorized representative of the Trust requests that an exception
be made from any written compliance or transfer agency procedures adopted by
BISYS, or any requirements of the AML Program, BISYS may in its sole discretion
determine whether to permit such exception. In the event BISYS determines to
permit such exception, the same shall become effective when set forth in a
written instrument executed by an authorized representative of the Trust (other
than an employee of BISYS) and delivered to BISYS (an "Exception"); provided
that an Exception concerning the requirements of the Trust's AML Program shall
be authorized by the Trust's AML Compliance Officer (as defined in Section 15).
An Exception shall be deemed to remain effective until the relevant instrument
expires according to its terms (or if no expiration date is stated, until BISYS
receives written notice from the Trust that such instrument has been terminated
and the Exception is no longer in effect). Notwithstanding any provision in this
Agreement that expressly or by implication provides to the contrary, as long as
BISYS acts in good faith, BISYS shall have no liability for any loss, liability,
expenses or damages to the Trust resulting from the Exception, and the Trust
shall indemnify BISYS and hold BISYS harmless from any loss, liability, expenses
(including reasonable attorneys fees) and damages resulting to BISYS therefrom.
9. INDEMNIFICATION
The Trust agrees to indemnify and hold harmless BISYS, its employees,
agents, directors, officers and nominees from and against any and all claims,
demands, actions and suits, whether groundless or otherwise, and from and
against any and all judgments, liabilities, losses, damages, costs, charges,
reasonable counsel fees and other expenses of every nature and character arising
out of or in any way relating to BISYS' actions taken or nonactions with respect
to the performance of services under this Agreement or based, if applicable,
upon reasonable reliance on information, records, instructions or requests given
or made to BISYS by the Trust, the investment adviser and on any records
provided by any fund accountant (other than BISYS) or custodian thereof;
provided, however, that BISYS shall not be protected in relying on any
information, records, instructions or requests given or made to or prepared by
BISYS or any affiliate of BISYS or any officer of the Trust that is an officer
or employee of BISYS or any affiliate of BISYS; and provided, further, that this
indemnification shall not apply to actions or
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omissions of BISYS in cases of its own bad faith, willful misfeasance,
negligence or from reckless disregard by it of its obligations and duties; and
further provided that prior to confessing any claim against it which may be the
subject of this indemnification, BISYS shall give the Trust written notice of
and reasonable opportunity to defend against said claim in its own name or in
the name of BISYS.
Notwithstanding the foregoing, BISYS agrees to indemnify and hold
harmless the Trust, its employees, agents, trustees, officers and nominees from
and against any and all actions, suits, demands and claims, whether groundless
or otherwise, and from and against any and all judgments, liabilities, losses,
damages, costs, charges, reasonable counsel fees and other expenses of every
nature and character arising out of or in any way relating to BISYS' bad faith,
willful malfeasance or misfeasance, negligence, or reckless disregard by it of
its obligations and duties with respect to the performance of services under
this Agreement.
The indemnifying party shall be entitled to participate at its own
expense or, if it acknowledges its responsibility to indemnify the other party,
it may elect to assume the defense of any suit brought to enforce any claims
subject to this indemnity provision. If the indemnifying party elects to assume
the defense of any such claim, the defense shall be conducted by counsel chosen
by the indemnifying party and satisfactory to the indemnified party, whose
approval shall not be unreasonably withheld. In the event that the indemnifying
party elects to assume the defense of any suit and retain counsel, the
indemnified party shall bear the fees and expenses of any additional counsel
retained by it. If the indemnifying party does not elect to assume the defense
of a suit, it will reimburse the indemnified party for the reasonable fees and
expenses of any counsel retained by the indemnified party.
10. RECORD RETENTION AND CONFIDENTIALITY
BISYS shall keep and maintain on behalf of the Trust all books and
records which the Trust or BISYS is, or may be, required to keep and maintain
pursuant to any applicable statutes, rules and regulations, including without
limitation Rules 31a-1 and 31a-2 under the 1940 Act relating to the maintenance
of books and records in connection with the services to be provided hereunder.
BISYS further agrees that all such books and records shall be the property of
the Trust and to make such books and records and other information it maintains
available for inspection by the Trust or by the Securities and Exchange
Commission (the "Commission") at reasonable times. BISYS shall otherwise keep
confidential all books and records and other information relating to the Trust
and its shareholders, except when (i) disclosure is required by law, (ii) BISYS
is advised by counsel that it may incur liability for failure to make a
disclosure unless (in cases involving potential exposure to civil liability) the
Trust has agreed to indemnify BISYS against such liability, (iii) BISYS is
requested to divulge such information by duly-constituted authorities or court
process, or (iv) BISYS is requested to make a disclosure by a shareholder or
shareholder's agent with respect to information concerning an account as to
which such shareholder has either a legal or beneficial interest or when
requested by the Trust or the dealer of record as to such account. BISYS shall
provide the Trust with reasonable advance notice of disclosure pursuant to items
(i) - (iii) of the previous sentence, to the extent reasonably practicable. The
provisions of this Section 10 are subject to the provisions of Section 22.
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11. REPORTS
BISYS shall furnish to the Trust and to its properly-authorized
auditors, investment advisers, examiners, distributors, dealers, underwriters,
salesmen, insurance companies and others designated by the Trust in writing,
such reports at such times as are prescribed in Schedule C attached hereto, or
as subsequently agreed upon by the parties pursuant to an amendment to Schedule
C. The Trust agrees to examine each such report or copy within twenty (20) days
and will report or cause to be reported any errors or discrepancies therein. In
the event that errors or discrepancies, except such errors and discrepancies as
may not reasonably be expected to be discovered by the recipient within twenty
(20) days after conducting a diligent examination, are not so reported within
the aforesaid period of time, a report will for all purposes be accepted by and
binding upon the Trust and any other recipient, and BISYS shall have no
liability for errors or discrepancies therein and shall have no further
responsibility with respect to such report except to perform reasonable
corrections of such errors and discrepancies within a reasonable time after
requested to do so by the Trust.
12. RIGHTS OF OWNERSHIP
All computer programs and procedures employed or developed by or on
behalf of BISYS to perform services required to be provided by BISYS under this
Agreement are the property of BISYS. All records and other data except such
computer programs and procedures are the exclusive property of the Trust and all
such other records and data shall be furnished to the Trust in appropriate form
as soon as practicable after termination of this Agreement for any reason.
13. RETURN OF RECORDS
BISYS may at its option at any time, and shall promptly upon the
Trust's demand, turn over to the Trust and cease to retain BISYS' files, records
and documents created and maintained by BISYS pursuant to this Agreement which
are no longer needed by BISYS in the performance of its services or for its
legal protection. If not so turned over to the Trust, such documents and records
shall be retained by BISYS for the time period required by applicable
regulations. At the end of such period, such records and documents shall be
turned over to the Trust unless the Trust authorizes in writing the destruction
of such records and documents.
14. BANK ACCOUNTS
BISYS is hereby granted such power and authority as may be necessary to
establish and maintain one or more bank accounts for the benefit of the Trust
with such bank or banks as are selected or approved by the Trust, as may be
necessary or appropriate from time to time in connection with the services
required to be performed hereunder. The Trust shall be deemed to be the customer
of such bank or banks for all purposes in connection with such accounts. To the
extent that the performance of such services hereunder shall require BISYS to
disburse amounts from such accounts in payment of dividends, redemption proceeds
or for other purposes hereunder, the Trust shall provide such bank or banks with
all instructions and authorizations necessary for BISYS to effect such
disbursements.
15. REPRESENTATIONS AND WARRANTIES OF THE TRUST
The Trust represents and warrants to BISYS that: (a) as of the close of
business on the Effective Date, each Fund which is in existence as of the
Effective Date has authorized unlimited
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shares, and (b) this Agreement has been duly authorized by the Trust and, when
executed and delivered by the Trust, will constitute a legal, valid and binding
obligation of the Trust, enforceable against the Trust 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.
The Trust also represents and warrants that (a) the Trust has adopted
the written AML Program that has been submitted to BISYS, and has appointed an
officer of the Trust as the Trust's anti-money laundering compliance officer
("AML Compliance Officer"), (b) the AML Program (which describes the delegation
of certain services thereunder to BISYS) and the designation of the AML Officer
have been approved by the Board, and (c) the Trust will submit any material
amendments to the AML Program to BISYS that affect services that BISYS performs
for BISYS' review and consent prior to adoption in accordance with Section 20.
16. REPRESENTATIONS AND WARRANTIES OF BISYS
BISYS represents and warrants that: (a) BISYS has been in, and shall
continue to be in compliance in all material respects with all provisions of
law, including Section 17A(c) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), required in connection with the performance of its duties
under this Agreement; (b) the various procedures and systems which BISYS has
implemented with regard to safekeeping from loss or damage attributable to fire,
theft or any other cause of the blank checks, records, and other data of the
Trust and BISYS' records, data, equipment, facilities and other property used in
the performance of its obligations hereunder are adequate and that it will make
such changes therein from time to time as are reasonably required for the secure
performance of its obligations hereunder; and (c) this Agreement has been duly
authorized by BISYS and, when executed and delivered by BISYS, will constitute a
legal, valid and binding obligation of BISYS, enforceable against BISYS in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the right and
remedies of creditors and secured parties.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL REPRESENTATIONS AND
WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING SUITABILITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE (IRRESPECTIVE OF
ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) CONCERNING THE SERVICES OR ANY
GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS AGREEMENT BY BISYS
ARE COMPLETELY DISCLAIMED.
17. INSURANCE
BISYS shall maintain a fidelity bond covering larceny and embezzlement
and an insurance policy with respect to directors and officers errors and
omissions coverage in amounts that are appropriate in light of its duties and
responsibilities hereunder. Upon the request of the Trust, BISYS shall provide
evidence that coverage is in place. BISYS shall notify the Trust should its
insurance coverage with respect to professional liability or errors and
omissions coverage be canceled or reduced. Such notification shall include the
date of cancellation or
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reduction and the reasons therefor. BISYS shall notify the Trust of any material
claims against it with respect to services performed under this Agreement,
whether or not they may be covered by insurance, and shall notify the Trust
should the total outstanding claims made by BISYS under its insurance coverage
materially impair, or threaten to materially impair, the adequacy of its
coverage.
18. INFORMATION TO BE FURNISHED BY THE TRUST AND FUNDS
The Trust has furnished to BISYS, or will furnish upon request, the
following, as amended and current as of the Effective Date:
(a) A copy of the Declaration of Trust of the Trust and of any
amendments thereto, certified by the proper official of the state in which such
Declaration has been filed.
(b) A copy of the Trust's Bylaws and any amendments thereto;
(c) Certified copies of resolutions of the Board covering approval of
this Agreement and authorization for specified officers of the Trust to instruct
BISYS hereunder.
(d) A list of all officers of the Trust, with the Trust's AML
Compliance Officer included among the officers therein, and any other persons
(who may be associated with the Trust or its investment advisor), together with
specimen signatures of those officers and other persons who (except as otherwise
provided herein to the contrary) shall be authorized to instruct BISYS in all
matters.
(e) Two copies of the following (if such documents are employed by the
Trust):
(i) Prospectuses and Statement of Additional Information;
(ii) Distribution Agreement; and
(iii) All other forms commonly used by the Trust or its
Distributor with regard to their relationships and transactions with
shareholders of the Funds.
(f) A certificate as to shares of beneficial interest of the Trust
authorized, issued, and outstanding as of the Effective Date and as to receipt
of full consideration by the Trust for all shares outstanding, such statement to
be certified by the Treasurer of the Trust.
(g) A copy of the Trust's written AML Program, including related
Policies and Procedures.
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19. INFORMATION FURNISHED BY BISYS
BISYS has furnished to the Trust, or will furnish upon request,
evidence of the following:
(a) Approval of this Agreement by BISYS, and authorization of a
specified officer of BISYS to execute and deliver this Agreement.
(b) Authorization of BISYS to act as Transfer Agent for the Trust.
(c) The written program concerning anti-money laundering services
rendered by BISYS to its various clients.
20. AMENDMENTS TO DOCUMENTS
The Trust shall furnish BISYS written copies of any amendments to, or
changes in, any of the items referred to in Section 18 hereof forthwith upon
such amendments or changes becoming effective. In addition, the Trust agrees
that no amendments will be made to the Prospectuses or Statement of Additional
Information of the Trust, or the AML Program, 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 Trust first obtains BISYS' approval of such amendments or changes, which
approval shall not be unreasonably withheld.
21. RELIANCE ON AMENDMENTS
BISYS may rely on any amendments to or changes in any of the documents
and other items to be provided by the Trust pursuant to Sections 18 and 20 of
this Agreement and, subject to the provisions of Section 6 hereof, the Trust
hereby indemnifies and holds harmless BISYS from and against any and all claims,
demands, actions, suits, judgments, liabilities, losses, damages, costs,
charges, reasonable counsel fees and other expenses of every nature and
character which may result from actions or omissions on the part of BISYS in
reasonable reliance upon such amendments and/or changes. Although BISYS is
authorized to rely on the above-mentioned amendments to and changes in the
documents and other items to be provided pursuant to Sections 18 and 20 hereof,
in the event the same relate to services provided by BISYS hereunder, BISYS
shall have no liability for failure to comply with or take any action in
conformity with such amendments or changes unless the Trust first obtains BISYS'
written consent to and approval of such amendments or changes.
22. COMPLIANCE WITH LAWS
Except for the obligations of BISYS set forth in Section 10 hereof, the
Trust assumes full responsibility for the preparation, contents, and
distribution of each prospectus of the Trust as to compliance with all
applicable requirements of the Securities Act of 1933, as amended (the "1933
Act"), the 1940 Act, and any other laws, rules and regulations of governmental
authorities having jurisdiction except that BISYS shall provide the Trust with
any information that it maintains about the Trust's shareholders that the Trust
is required to disclose in its Form N-1A
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registration statement. BISYS shall have no obligation to take cognizance of any
laws relating to the sale of the Trust's shares. The Trust represents and
warrants that all shares of the Trust that are offered to the public are covered
by an effective registration statement under the 1933 Act and the 1940 Act.
The Trust acknowledges that it 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 shall comply
with the AML Acts and applicable regulations adopted thereunder ( collectively,
the "Applicable AML Laws") in all relevant respects, subject to the delegation
of certain responsibilities to BISYS, as provided in the next paragraph below.
The Trust hereby delegates to BISYS the performance, on behalf of the
Trust, of the anti-money laundering services set forth under Item 6 of Schedule
B (the "AML Services") as concerns the shareholder accounts maintained by BISYS
pursuant to this Agreement (including direct accounts; accounts maintained
through FUND/SERV and Networking, to the extent provided below, and omnibus
accounts, to the extent provided below). BISYS agrees to the foregoing
delegation and agrees to perform such services in accordance with the Trust's
AML Program. In connection therewith, BISYS agrees to maintain policies and
procedures, and related internal controls, that are consistent with the Trust's
AML Program and the requirement that the Trust employ procedures reasonably
designed to achieve compliance with the Applicable AML Laws, including the
requirement to have policies and procedures that can be reasonably expected to
detect and cause the reporting of transactions under Section 5318 of the Bank
Secrecy Act. BISYS' obligations under this delegation shall be subject to
Sections 20 and 21, which require that the AML Program and any material
amendments thereto be submitted to BISYS for its review and consent.
The Trust agrees and acknowledges that, notwithstanding the delegation
provided for in the foregoing paragraph, the Trust maintains full responsibility
for ensuring that its AML Program is, and shall continue to be, reasonably
designed to ensure compliance with the Applicable AML Laws, in light of the
particular business of the Trust, taking into account factors such as its size,
location, activities and risks or vulnerabilities to money laundering.
In connection with the foregoing delegation, the Trust also
acknowledges that the performance of the AML Services involves the exercise of
discretion which in some circumstances may result in consequences to the Trust
and its shareholders (such as in the case of the reporting of suspicious
activities and the freezing of shareholder accounts). In this regard, (i) under
circumstances in which the AML Program authorizes the taking of certain actions,
BISYS is granted the discretion to take any such action as may be authorized
under the AML Program, and consultation with Trust shall not be required in
connection therewith unless specifically required under the AML Program, and
(ii) the Trust instructs BISYS that it may avail the Trust of any safe harbor
from civil liability that may be available under Applicable AML Laws for making
a disclosure or filing a report thereunder.
As concerns Networking Level III accounts and omnibus accounts, the AML
Services performed by BISYS are subject to a more limited scope, as discussed in
the Release concerning the final rule of the Department of the Treasury, 31 CFR
103 and of the Commission, 00 XXX
00
000, entitled Customer Identification Programs for Mutual Funds issued on May 9,
2003 and subsequent guidance issued jointly by such agencies entitled Question
and Answer Regarding the Mutual Fund Customer Identification Program Rule (31
CFR 103.131) issued on August 11, 2003.
23. NOTICES
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such notice
at the following address: if to the Trust, to c/o Shay Assets Management, Inc.
Attn: Xxxxxx X. Xxxxxxx, Xx., at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000; and if to BISYS, at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000; Attn:
President, or at such other address as such party may from time to time specify
in writing to the other party pursuant to this Section.
24. ASSIGNMENT
This Agreement and the rights and duties hereunder shall not be
assignable by either of the parties hereto except by the specific written
consent of the other party. This Section 24 shall not limit or in any way affect
BISYS' right to appoint a Sub-Agent pursuant to Section 1 hereof. This Agreement
shall be binding upon, and shall inure to the benefit of, the parties hereto and
their respective successors and permitted assigns.
25. GOVERNING LAW AND MATTERS RELATING TO THE TRUST AS A DELAWARE STATUTORY
TRUST
This Agreement shall be governed by and provisions shall be construed
in accordance with the laws of the State of Ohio and the applicable provisions
of the 1940 Act or the rules and regulations thereunder. To the extent that the
applicable laws of the State of Ohio, or any of the provisions herein, conflict
with the applicable provisions of the 1940 Act, the 1940 Act shall control. It
is expressly agreed that the obligations of the Trust hereunder shall not be
binding upon any of the Trustees, shareholders, nominees, officers, agents or
employees of the Trust personally, but shall bind only the trust property of the
Trust. The execution and delivery of this Agreement have been authorized by the
Board, and this Agreement has been signed and delivered by an authorized officer
of the Trust, acting as such, and neither such authorization by the Board nor
such execution and delivery by such officer shall be deemed to have been made by
any of them individually or to impose any liability on any of them personally,
but shall bind only the trust property of the Trust as provided in the Trust's
Declaration of Trust.
26. INSTRUCTIONS, APPROVAL OR CONSENT BY THE TRUST; IMPUTATION
Any reference herein to any instructions, approval or consent of the
Trust shall not include any instructions, approval or consent given by any
officer of the Trust that is an officer, employee or agent of BISYS or any
affiliate of BISYS, unless specifically authorized in an agreement by the Trust,
or otherwise by the Board of Trustees of the Trust.
27. ACTIVITIES OF BISYS
The services of BISYS rendered to the Trust hereunder are not to be
deemed to be exclusive. BISYS is free to render such services to others and to
have other businesses and
14
interests. It is understood that Trustees, officers, employees and Shareholders
of the Trust are or may be or become interested in BISYS, as officers, employees
or otherwise and that partners, officers and employees of BISYS and its counsel
are or may be or become similarly interested in the Trust, and that BISYS may be
or become interested in the Trust as a Shareholder or otherwise
28. PRIVACY
Nonpublic personal financial information relating to consumers or
customers of the Trust provided by, or at the direction of the Trust to BISYS,
or collected or retained by BISYS in the course of performing its duties as
transfer agent, shall be considered confidential information. BISYS shall not
give, sell or in any way transfer such confidential information to any person or
entity, other than affiliates of BISYS except at the direction of the Trust or
as required or permitted by law (including Applicable AML Laws). BISYS
represents, warrants and agrees that it has in place and will maintain physical,
electronic and procedural safeguards reasonably designed to protect the
security, confidentiality and integrity of, and to prevent unauthorized access
to or use of records and information relating to consumers or customers of the
Trust. The Trust represents to BISYS that it has adopted a Statement of its
privacy policies and practices as required by the Commission's Regulation S-P
and agrees to provide BISYS with a copy of that statement annually.
29. MISCELLANEOUS
(a) Paragraph headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
(b) This Agreement constitutes the complete agreement of the parties hereto
as to the subject matter covered by this Agreement, and supersedes all prior
negotiations, understandings and agreements bearing upon the subject matter
covered herein, including, without limitation, the 1999 Agreement.
(c) This Agreement 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.
(d) No amendment to this Agreement shall be valid unless made in writing
and executed by both parties hereto.
* * * * *
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
ASSET MANAGEMENT FUND
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: President
16
SCHEDULE A
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN ASSET MANAGEMENT FUND
AND BISYS FUND SERVICES OHIO, INC.
DATED AUGUST 1, 2004
FUNDS
U.S. Government Fund
Intermediate Mortgage Fund
Short U.S. Government Fund
Ultra Short Fund
Adjustable Rate Mortgage (ARM) Fund
Money Market Fund
17
SCHEDULE B
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN ASSET MANAGEMENT FUND
AND BISYS FUND SERVICES OHIO, INC.
DATED AUGUST 1, 2004
TRANSFER AGENCY SERVICES
1. Shareholder Transactions
(a) Process shareholder purchase and redemption orders.
(b) Set up account information, including address, dividend
option, taxpayer identification numbers and wire instructions.
(c) Issue confirmations in compliance with Rule 10b-10 under the
Securities Exchange Act of 1934, as amended.
(d) Issue periodic statements for shareholders.
(e) Process transfers and exchanges.
(f) Process dividend payments, including the purchase of new
shares, through dividend reimbursement.
2. Shareholder Information Services
(a) Make information available to shareholder servicing unit and
other remote access units regarding trade date, share price,
current holdings, yields, and dividend information.
(b) Produce detailed history of transactions through duplicate or
special order statements upon request.
(c) Provide mailing labels for distribution of financial reports,
prospectuses, proxy statements or marketing material to
current shareholders.
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3. Compliance Reporting
(a) Provide reports to the Securities and Exchange Commission, the
National Association of Securities Dealers, Inc. and the
States in which the Fund is registered or makes notice
filings.
(b) Prepare and distribute appropriate Internal Revenue Service
forms for corresponding Fund and shareholder income and
capital gains.
(c) Issue tax withholding reports to the Internal Revenue Service.
4. Dealer/Load Processing (if applicable)
(a) Provide reports for tracking rights of accumulation and
purchases made under a Letter of Intent.
(b) Account for separation of shareholder investments from
transaction sale charges for purchase of Fund shares.
(c) Calculate fees due under 12b-1 plans for distribution and
marketing expenses.
(d) Track sales and commission statistics by dealer and provide
for payment of commissions on direct shareholder purchases in
a load Fund.
5. Shareholder Account Maintenance
(a) Maintain all shareholder records for each account in the
Trust.
(b) Issue customer statements on scheduled cycle, providing
duplicate second and third party copies if required.
(c) Record shareholder account information changes.
(d) Maintain account documentation files for each shareholder.
6. Anti-Money Laundering Services
(a) Verify shareholder identity upon opening new accounts.
(b) Monitor, identify and report shareholder transactions and
identify and report suspicious activities that are required to
be so identified and reported, and provide other required
reports to the Securities and Exchange Commission, the X.X.
00
Xxxxxxxx Xxxxxxxxxx, the Internal Revenue Service or each
agency's designated agent, in each case consistent with the
Trust's AML Program.
(c) Place holds on transactions in shareholder accounts or freeze
assets in shareholder accounts, as provided in the Trust's AML
Program.
(d) Create documentation to provide a basis for law enforcement
authorities to trace illicit funds.
(e) Maintain all records or other documentation related to
shareholder accounts and transactions therein that are
required to be prepared and maintained pursuant to the Trust's
AML Program, and make the same available for inspection by (i)
the Trust's AML Compliance Officer, (ii) any auditor of the
Trust's AML Program or related procedures, policies or
controls that has been designated by the Trust in writing, or
(iii) regulatory or law enforcement authorities, and otherwise
make said records or other documents available at the
direction of the Trust's AML Compliance Officer.
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SCHEDULE C
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN ASSET MANAGEMENT FUND
AND BISYS FUND SERVICES OHIO, INC.
DATED AUGUST 1, 2004
STANDARD REPORTS
1. Daily Shareholder Activity Journal
2. Daily Fund Activity Summary Report'
(a) Beginning Balance
(b) Transactions
(c) Shareholder Transactions
(d) Reinvested Dividends
(e) Exchanges
(f) Adjustments
(g) Ending Balance
3. Daily Wire and Check Registers
4. Monthly Dealer Processing Reports
5. Monthly Dividend Reports
6. Sales Data Reports for Blue Sky Registration
7. A copy of the most recent report by independent public accountants
describing control structure policies and procedures relating to
transfer agency operations pursuant to AICPA Statement on Auditing
Standards Number 70.
8. Such special reports and additional information that the parties may
agree upon, from time to time.
In addition to the forgoing, following each quarterly period, BISYS
will provide a report to the following effect pertaining to the AML Services
rendered by BISYS hereunder during such quarterly period:
21
>> performed good order review for all new and reregistered accounts;
>> performed acceptance review for all monetary instruments received;
>> administered signature guarantee policy in accordance with prospectus
requirements;
>> administered escrow hold policy in accordance with prospectus
requirements;
>> verified customer address changes;
>> verified customer identification for all new accounts and all name
changes on existing accounts;
>> monitored all purchase transactions made with cash equivalents totaling
in excess of $10,000 resulting in the filing of [x] Form 8300 reports
during the period. The Fund does not accept cash or currency;
>> monitored all accounts for suspicious activity resulting in the filing
of [x] Form SAR reports during the period;
>> reviewed shareholder names against lists of suspected terrorist and
terrorist organizations supplied by various governmental organizations,
such as the Office of Foreign Asset Control resulting in the freezing
and reporting of [x] accounts during the period;
>> reviewed shareholder names in compliance with FinCEN 314(a) requests,
resulting in the reporting of accounts during the period;
>> created the documentation necessary to provide a basis for law
enforcement authorities to trace illicit funds; and
>> maintained all records and other documentation related to shareholder
accounts and transactions required to be prepared and maintained
pursuant to the Fund's anti-money laundering program for all BISYS
transfer agent services.
The following will be provided in such report if the Trust falls under
the related USA PATRIOT Act provisions:
>> performed the required due diligence to help prevent the opening of any
accounts for foreign shell banks during the period either directly or
through correspondent accounts; and
>> performed required due diligence on any new correspondent accounts
opened during the period.
22