EXHIBIT (h)(1)(B)
AMENDMENT TO
TRANSFER AGENCY AGREEMENT
AMENDMENT made as of the 24th day of July, 2002, between the
Asset Management Fund (the "Fund"), a Delaware statutory trust having its
principal place of business at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, XX 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 Transfer Agency Agreement dated August 9, 1999, under which BISYS
performs transfer agency services for the Fund (as amended and in effect on the
date hereof, the "Agreement").
WHEREAS, under the Agreement BISYS is designated as the Fund's
transfer agent and performs the transfer agency services for the Fund that are
enumerated in the Agreement or a Schedule thereto;
WHEREAS, the Agreement provides that BISYS shall perform such
additional services as are mutually agreed upon and provided in an amendment to
the Agreement or its schedules, in consideration of such fees as the parties may
agree upon;
WHEREAS, the Fund desires that BISYS perform certain
additional services for the Fund related to anti-money laundering and fraud
prevention;
WHEREAS, BISYS is willing to perform the services provided for
in this Amendment on the terms and conditions set forth in this Amendment (the
"AML Services"); and
WHEREAS, BISYS and the Fund wish to enter into this Amendment
to the Agreement in order to set forth the terms under which BISYS will perform
the AML Services provided for herein on behalf of the Fund, and to supplement
and clarify certain provisions of the Agreement.
NOW, THEREFORE, in consideration of the covenants herein
contained, the Fund and BISYS agree as follows:
1. Compliance with Laws/Delegation to BISYS.
The Fund 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 is required to 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 Fund hereby delegates to BISYS the performance, on behalf
of the Fund, of the AML Services set forth in Schedule B to this Amendment as it
concerns the shareholder accounts maintained by BISYS pursuant to the 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 the delegated services in accordance with the
anti-money laundering program that has been adopted by the Fund (the "AML
Program"). In connection therewith, BISYS agrees to design, maintain and
implement policies and procedures, and related internal controls, with respect
to the shareholder accounts maintained by BISYS pursuant to the Agreement that
are consistent with the Fund's AML Program and the requirement that the Fund
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 5 and 6 of this Amendment, which require that the
AML Program adopted by the Fund and any material amendments thereto be submitted
to BISYS.
The Fund agrees and acknowledges that it is responsible for
compliance with the Applicable AML Laws, in light of the particular business of
the Fund, taking into account factors such as its size, location, activities and
risks or vulnerabilities to money laundering. In furtherance of such
responsibility BISYS acknowledges that it is obligated to the Fund to design,
maintain and implement policies and procedures, and related internal controls
with respect to the shareholder accounts maintained by BISYS pursuant to the
Agreement as contemplated by the preceding paragraph.
In connection with the foregoing delegation, the Fund also
acknowledges that the performance of the AML Services listed in Schedule B
involves the exercise of discretion, which in certain circumstances may result
in consequences to the Fund 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, and prior consultation with the Fund shall not be
required in connection therewith unless expressly required by the AML Program,
and (ii) the Fund instructs BISYS that it may avail the Fund of any safe harbor
from civil liability that may be available under Applicable AML Laws for making
a disclosure or filing a report thereunder. BISYS shall promptly notify the
Fund's AML Compliance Officer of any action taken with respect to; 1) the
freezing or termination of any shareholder account or funds; or 2) the reporting
of any shareholder transaction or account under any U.S. government agency AML
requirement pursuant to the Fund's AML Program.
Shay Financial Services, Inc. ("Distributor"), is the
distributor of the Fund and a member of the National Association of Securities
Dealers, Inc. In developing and implementing its anti-money laundering program
and procedures, Distributor relies on the representations, warranties and
agreements of BISYS made in this Amendment and upon the BISYS Transfer Agent AML
Program adopted and maintained by BISYS as described in Section 5. BISYS hereby
acknowledges and consents to such reliance by Distributor, which shall be a
third party beneficiary thereof.
As concerns Networking Level III accounts and omnibus
accounts, the AML Services performed by BISYS are subject to a more limited
scope than other accounts, as contemplated under the interim final rule of the
Department of the Treasury, 31 CFR 103,
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effective April 24, 2002 (the "Interim Final Rule") and the performance by the
Fund of the risk-based evaluation of entities holding such accounts, as
contemplated under the Interim Final Rule.
The provisions of the Agreement concerning recordkeeping and
confidentiality are subject to the provisions of this Section.
2. Reimbursement of Expenses and Miscellaneous Service 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 Fund the amounts set forth on Schedule C hereto, reflecting the amounts
charged by BISYS for the performance of delegated services under this Amendment
with respect to the Fund's AML Program.
3. Bank Accounts.
BISYS is hereby granted such power and authority as may be
necessary to establish one or more bank accounts for the Fund with such bank or
banks as are selected or approved by the Fund, as may be necessary or
appropriate from time to time in connection with the services performed by
BISYS. The Fund 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, the
Fund shall provide such bank or banks with all instructions and authorizations
necessary for BISYS to effect such disbursements.
4. Instructions/Procedures.
The Fund acknowledges and agrees that deviations from BISYS'
written transfer agent anti-money laundering compliance procedures may involve a
substantial risk of loss. In the event an authorized representative of the Fund
requests that an exception be made from any written compliance or transfer
agency procedures adopted by BISYS, or adopted by the Fund and approved by BISYS
(including any requirements of the Fund's AML Program), BISYS shall use
reasonable efforts to implement such exception, provided that BISYS may in its
reasonable discretion determine whether to permit such exception. In the event
BISYS permits an exception to a BISYS policy or procedure that had been intended
to protect the Fund from losses due to money laundering or fraud activity, the
same shall become effective when set forth in a written instrument executed by
an authorized representative of the Fund (other than an employee of BISYS) and
delivered to BISYS (any such exception is hereafter referred to as an
"Exception"); provided that an Exception concerning the requirements of the
Fund's AML Program shall be authorized by the Fund's anti-money laundering
compliance officer ("AML Compliance Officer"). 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 Fund that such instrument has been terminated and the Exception is no longer
in effect). Notwithstanding any provision of the Agreement or this Amendment
that expressly or by implication provides to the contrary, if BISYS permits an
Exception requested by the Fund that is intended to further reduce the risk to
the Fund from losses due to money laundering or fraud activity BISYS shall have
no liability for any loss, liability, expenses or damages to the Fund resulting
from its action or inaction in accordance with such Exception as long as BISYS
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acts in good faith and without gross negligence or willful misconduct; and the
Fund shall indemnify BISYS and hold BISYS harmless from any loss, liability,
expenses (including reasonable attorneys' fees) and damages resulting to BISYS
from its action or inaction in accordance with such Exception, other than any
loss, liability or expense resulting from the lack of good faith or from the
willful misconduct of BISYS. If BISYS permits an Exception requested by the Fund
that is not intended to further reduce the risk to the Fund from losses due to
money laundering or fraud activity BISYS shall have no liability for any loss,
liability, expenses or damages to the Fund resulting from its action or inaction
in accordance with such Exception as long as BISYS acts in good faith and
without willful misconduct.
The Fund acknowledges receipt of a copy of BISYS' policy
related to the acceptance of trades for prior day processing (the "BISYS As-Of
Trading Policy"). BISYS may amend the BISYS As-Of Trading Policy from time to
time in its sole discretion. A copy of any such material amendments shall
promptly be delivered to the Fund. BISYS may apply the BISYS As-Of Trading
Policy whenever applicable, unless BISYS agrees in writing to process trades
according to such other as-of trading policy as may be adopted by the Fund and
furnished to BISYS by the Fund.
The parties may amend any procedures adopted, approved or set
forth under the Agreement by mutual written agreement. BISYS may conclusively
assume that any special procedure which has been approved by an executive
officer of the Fund (other than an officer or employee of BISYS) does not
conflict with or violate any requirements of the Fund's Certificate of
Incorporation, By-Laws or then-current prospectus. BISYS shall not be required
to comply with any special procedure requested by an executive officer of the
Fund that BISYS reasonably believes may violate any rule, regulation or
requirement of any regulatory body.
5. Representations and Warranties of the Fund and BISYS.
The Fund represents and warrants that (a) the Fund has adopted
the written AML Program that has been submitted to BISYS pursuant to Section 6,
and has appointed a Compliance Officer under its AML Program, (b) the AML
Program and the designation of the AML Officer have been approved by the Board
of Directors of the Fund (the "Board"), (c) the delegation of certain services
thereunder to BISYS, as provided in Section 1 of this Amendment, has been
approved by the Board, and (d) the Fund will submit any material amendments to
the AML Program to BISYS for BISYS' review. Any amendment that would have a
material impact upon the AML Services to be rendered by BISYS or the
responsibilities of BISYS shall be subject to approval by BISYS prior to
adoption.
BISYS represents and warrants to the Fund that it has adopted
and will maintain a written program concerning the anti-money laundering
services it provides to its various clients (the "BISYS Transfer Agent AML
Program"), and that its policies and procedures in connection therewith are
reasonably adequate for it to provide the AML Services and comply with its
obligations under this Amendment. BISYS agrees that it will implement the BISYS
Transfer Agent AML Program with respect to the shareholder accounts of the Fund
maintained by BISYS pursuant to the Agreement, subject to such modifications as
may be necessary to implement the AML Program of the Fund in accordance with
Section 1 (subject to the approval of BISYS to the extent required by the last
sentence of the preceding paragraph) and subject to such Exceptions
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as may be agreed to pursuant to Section 4. BISYS agrees that it will provide to
the Fund or its AML Compliance Officer annually a copy of the BISYS Transfer
Agent AML Program and that it will provide to the Fund copies of any material
amendments thereto promptly after the adoption thereof.
6. Information to be Furnished by the Fund.
The Fund has furnished to BISYS the following, as amended and
current as of the date of this Amendment:
(a) A list of all officers of the Fund, the Fund's AML
Compliance Officer, and any other persons (who may be
associated with the Fund or its investment advisor),
together with specimen signatures, who (except as
otherwise provided herein to the contrary) shall be
authorized to instruct BISYS in all matters related
to the Fund's AML Program; and
(b) A copy of the Fund's written AML Program, as defined
in Section 1 of this Amendment, including related
Policies and Procedures.
7. Information Furnished by BISYS.
BISYS has furnished to the Fund the following:
(a) The currently effective BISYS "As-Of" Trading Policy;
and
(b) The BISYS Transfer Agent AML Program.
8. Privacy.
Nonpublic personal financial information relating to consumers
or customers of the Fund provided by, or at the direction of the Fund to BISYS,
or collected or retained by BISYS in the course of performing its transfer
agency duties, 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 Fund 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 Fund. The
Fund represents to BISYS that it has adopted a Statement of its privacy policies
and practices as required by the Securities and Exchange Commission's Regulation
S-P.
9. Access to be Provided.
BISYS shall grant reasonable access to each of the Fund and
the AML Compliance Officer, to the books and records maintained by BISYS as the
same relates to the services performed hereunder on behalf of the Fund. BISYS
shall make its relevant personnel available to meet with the Board of Directors
of the Fund concerning the AML Services at least annually or at such more
frequent intervals as may be requested by the Fund. Fund agrees to pay
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for related expenses for such attendance to the extent more frequent than
annual. BISYS agrees to provide federal authorities (such as the Securities and
Exchange Commission) with such information and records as they may request
relating to the Fund's AML Program and hereby consents to the inspection of its
records relating to shareholder accounts of the Fund maintained by BISYS
pursuant to the Agreement and the review of the BISYS Transfer Agent AML
Program, as implemented with respect to the Fund, by federal authorities as part
of their review of the Fund's AML Program.
10. Reports to be Furnished to the Fund
(a) At least quarterly, BISYS shall provide a report to
the Fund containing the information listed on
Schedule D hereto and such other information relating
to BISYS' services hereunder as may be reasonably
requested by the Fund.
(b) Annually, BISYS shall provide the Fund with a report
or summary of the results of the testing of the BISYS
Transfer Agent AML Program as it relates to the Fund.
11. 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.
(b) Each reference to the Agreement in the Agreement (as
it existed prior to this Amendment) and in every
other agreement, contract or instrument to which the
parties are bound, shall hereafter be construed as a
reference to the Agreement as 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 both parties hereto.
(c) Paragraph headings in this Amendment are included for
convenience only and are not to be used to construe
or interpret this Amendment.
(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.
ASSET MANAGEMENT FUND
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------------
Title: President
-------------------------
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxxxxx Xxxxx
--------------------------
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SCHEDULE B
TO THE AMENDMENT TO THE
TRANSFER AGENCY AGREEMENT
BETWEEN
ASSET MANAGEMENT FUND
AND
BISYS FUND SERVICES OHIO, INC.
SERVICES
a. Verify shareholder identity upon opening new accounts consistent with
the Applicable AML Laws in effect as of the date of the Amendment, as
referenced in Section 1 of the Amendment.
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 U.S. Treasury Department, the Internal Revenue
Service or other authorized U.S. governmental agencies or each agency's
designated agent, in each case consistent with the Fund's AML Program
and this Amendment and Applicable AML Laws in effect as of the date of
the Amendment as referenced in Section 1 of the Amendment.
c. Place holds on transactions in shareholder accounts or freeze assets in
shareholder accounts, as contemplated by the Fund's AML Program or the
BISYS Transfer Agent AML Program or as required by law enforcement
authorities.
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 Fund's AML Program and the Applicable AML
Laws and similar state laws as made known to BISYS by the Funds, and
make the same available for inspection, by (i) the Fund's AML
Compliance Officer, (ii) any auditor of the Fund's AML Program or
related procedures, policies or controls that has been designated by
the Fund in writing, or (iii) regulatory or law enforcement
authorities, and otherwise make said records or other documents
available at the direction of the Fund's AML Compliance Officer.
f. Arrange for periodic reviews, at least annually, to be performed by
internal auditors or other auditors chosen by BISYS concerning the
BISYS operations related to the AML Services.
g. Perform such other related services as are required by the Fund's AML
Program and the BISYS Transfer Agent AML Program (subject to the
provisions of this Amendment) as in effect from time to time.
SCHEDULE C
TO THE AMENDMENT TO THE
TRANSFER AGENCY AGREEMENT
BETWEEN
ASSET MANAGEMENT FUND
AND
BISYS FUND SERVICES OHIO, INC.
CHARGES FOR THE SERVICES SET FORTH
UNDER SCHEDULE B OF THIS AMENDMENT
One-time set up program cost $8,500.00
(to be billed in June 2002)
Annual program servicing $7,000.00
(to be billed in equal monthly amounts of $583.33)
Systems costs
Early Warning annual fee $575.00
Early Warning per record cost for new account*
registration review--does not apply to Network $0.17
Level III accounts
Equifax--per request cost $5.00
* CHANGES TO ACCOUNT REGISTRATION INFORMATION OR OTHER ACCOUNT-RELATED
INFORMATION MAY RESULT IN CHARACTERIZING THE ACCOUNT AS A "NEW ACCOUNT" FOR
THESE PURPOSES.
SCHEDULE D
TO THE AMENDMENT TO THE
TRANSFER AGENCY AGREEMENT
BETWEEN
ASSET MANAGEMENT FUND
AND
BISYS FUND SERVICES OHIO, INC.
REPORTS
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:
1 administered escrow hold policy in accordance with prospectus
requirements;
2 verified customer address changes;
3 verified customer identification, for all new accounts and all name
changes on existing accounts;
4 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;
5 monitored transactions consistent with the Fund's AML Program and the
BISYS Transfer Agent AML Program or law enforcement authorities
instructions regarding freezing assets, resulting in the freezing of
[x] accounts and transactions;
6 monitored all accounts for suspicious activity resulting in the filing
of [x] form SAR reports during the period;
7 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;
8 created the documentation necessary to provide a basis for law
enforcement authorities to trace illicit funds;
9 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 items will be provided 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.
The report will identify any Exceptions as contemplated in Section 4 of the
Amendment.
