Exhibit (h)(iv)
AMENDMENT TO
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TRANSFER AGENCY AGREEMENT
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AMENDMENT made as of the 24th day of July, 2002, between Old Westbury
Funds, Inc. (the "Company"), a Maryland corporation having its principal place
of business at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000-0000, 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 November 15, 1999, under which BISYS performs transfer
agency services for the Company (as amended and in effect on the date hereof,
the "Agreement").
WHEREAS, under the Agreement BISYS is designated as the Company's
transfer agent[or sub-transfer agent] and performs the transfer agency services
for the Company 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 Company desires that BISYS perform certain additional
services for the Company related to anti-money laundering and fraud prevention;
WHEREAS, BISYS is willing to perform the services enumerated in this
Amendment on the terms and conditions set forth in this Amendment (the "AML
Services"); and
WHEREAS, BISYS and Company wish to enter into this Amendment to the
Agreement in order to set forth the terms under which BISYS will perform the AML
Services enumerated herein on behalf of the Company, and to supplement and
clarify certain provisions of the Agreement.
NOW, THEREFORE, in consideration of the covenants herein contained, the
Company and BISYS hereby agree as follows:
1. Compliance with Laws/Delegation to BISYS.
The Company 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 Company hereby delegates to BISYS the performance, on
behalf of the Company, of the AML Services set forth in Schedule B to
this Amendment as 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 Company (the "AML Program"). In connection
therewith, BISYS agrees to maintain policies and procedures, and
related internal controls, that are consistent with the Company's AML
Program and the requirement that the Company 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 Company and any
material amendments thereto be submitted to BISYS.
The Company agrees and acknowledges that, notwithstanding the
delegation provided for in the foregoing paragraph, the Company
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
Company, taking into account factors such as its size, location,
activities and risks or vulnerabilities to money laundering.
In connection with the foregoing delegation, the Company also
acknowledges that the performance of the AML Services enumerated in
Schedule B involves the exercise of discretion, which in certain
circumstances may result in consequences to the Company 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 consultation with the Company shall
not be required in connection therewith unless expressly required by
the AML Program, and (ii) the Company instructs BISYS that it may avail
the Company 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 contemplated under the interim final rule of the
Department of the Treasury, 31 CFR 103, effective April 24, 2002 (the
"Interim Final Rule") and the performance by the Company of the
risk-based evaluation of entities holding such accounts, as
contemplated under the Interim Final Rule. The foregoing reference to
the Interim Final Rule shall be deemed to include laws and regulations
adopted subsequent to the Interim Final Rule, if and to to the extent
consistent therewith.
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 Company the amounts set forth on Exhibit C hereto,
reflecting the amounts charged by BISYS for the performance of
delegated services under this Amendment with respect to the Company'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 Company with
such bank or banks as are selected or approved by the Company, as may
be necessary or appropriate from time to time in connection with the
services performed by BISYS. The Company 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 Company
shall provide such bank or banks with all instructions and
authorizations necessary for BISYS to effect such disbursements.
4. Instructions/Procedures.
The Company 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 Company requests that an exception be made from any written
compliance or transfer agency procedures adopted by BISYS, or adopted
by the Company and approved by BISYS (including any requirements of the
Company's 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
Company (other than an employee of BISYS) and delivered to BISYS (an
"Exception"); provided that an Exception concerning the requirements of
the Company's AML Program shall be authorized by the Company'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 Company 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, as
long as BISYS acts in good faith and without willful misconduct, BISYS
shall have no liability for any loss, liability, expenses or damages to
the Company resulting from the Exception, and the Company shall
indemnify BISYS and hold BISYS harmless from any loss, liability,
expenses (including reasonable attorneys fees) and damages resulting to
BISYS therefrom.
The Company 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
amendments shall be delivered to the Company upon request. 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 Company and furnished to BISYS by the Company.
The parties may amend any procedures adopted, approved or set
forth under the Agreement by mutual written agreement as may be
appropriate or practical under the circumstances. BISYS may
conclusively assume that any special procedure which has been approved
by an executive officer of the Company (other than an officer or
employee of BISYS) does not conflict with or violate any requirements
of the Company's Declaration of Company, By-Laws or then-current
prospectuses, or any rule, regulation or requirement of any regulatory
body.
5. Representations and Warranties.
The Company represents and warrants that (a) the Company has
adopted the written AML Program that has been submitted to BISYS
pursuant to Section 6, and has appointed the Company's AML Compliance
Officer, who is, or who will be appointed at the next regularly
scheduled meeting of the Board of Directors of the Company (the
"Board"), an officer of the Company; (b) the AML Program and the
designation of the AML Officer have been approved by 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 Company 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. The Company's AML Compliance Officer need not be an
officer of the Company if not required by applicable laws and
regulations.
BISYS represents and warrants to the Company that it has
adopted and will maintain a written program concerning the anti-money
laundering services it provides to its various clients, and that its
policies and procedures are reasonably adequate for it to provide the
AML Services and comply with its obligations under this Amendment.
6. Information to be Furnished by the Company.
The Company 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 Company, with the
Company's AML Compliance Officer included among the
officers therein, and any other persons (who may be
associated with the Company 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.
(b) A copy of the Company'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 Company the following:
(a) The currently effective BISYS "As-of" Trading Policy.
(b) The written program concerning anti-money laundering
services rendered by BISYS to its various clients.
8. Privacy.
Nonpublic personal financial information relating to consumers
or customers of the Company provided by, or at the direction of the
Company 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 Company 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 Company. The Company 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 and agrees
to provide BISYS with a copy of that statement annually.
9. Access to be Provided.
BISYS shall grant reasonable access to each of the Company,
the AML Compliance Officer, and regulators having jurisdiction over the
Company, to the books and records maintained by BISYS as the same
relates to the services performed hereunder on behalf of the Company.
Records may be edited or redacted to maintain confidentiality of
materials related to other clients of BISYS. BISYS shall make its
relevant personnel available to meet with the Board concerning the AML
Services at least annually or at such other intervals as may be
reasonably necessary or appropriate.
10. Reports to be Furnished to the Company.
At least quarterly, BISYS shall provide a report to the
Company containing the information listed on Schedule D hereto.
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,
including any conflicting provisions of the Agreement
or any provisions of the Agreement that directly
cover or indirectly bear upon matters covered under
this Amendment.
(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.
OLD WESTBURY FUNDS, INC.
By:________________________________
Title: ____________________________
BISYS FUND SERVICES OHIO, INC.
By:________________________________
SCHEDULE B
TO THE AMENDMENT TO THE
TRANSFER AGENCY AGREEMENT
BETWEEN
OLD WESTBURY FUNDS, INC.
AND
BISYS FUND SERVICES OHIO, INC.
SERVICES
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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 U.S. Treasury Department, the Internal Revenue
Service or each agency's designated agent, in each case consistent with
the Company's AML Program.
c. Place holds on transactions in shareholder accounts or freeze assets in
shareholder accounts, as provided in the Company'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 Company's AML Program, and make the same
available for inspection by (i) the Company's AML Compliance Officer,
(ii) any auditor of the Company's AML Program or related procedures,
policies or controls that has been designated by the Company in
writing, or (iii) regulatory or law enforcement authorities, and
otherwise make said records or other documents available at the
direction of the Company'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 AML Program.
SCHEDULE C
TO THE AMENDMENT TO THE
TRANSFER AGENCY AGREEMENT
BETWEEN
OLD WESTBURY FUNDS, INC.
AND
BISYS FUND SERVICES OHIO, INC.
CHARGES FOR THE SERVICES SET FORTH
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UNDER SCHEDULE B OF THIS AMENDMENT
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One-time set up program cost $5,000.00
(to be billed in June 2002)
Annual program servicing $4,500.00
(to be billed in equal monthly amounts of $375.00)
Systems costs
Early Warning annual fee $575.00
Early Warning per record cost $0.17
for new account* registration review - does not apply to
Network 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
OLD WESTBURY FUNDS, INC.
AND
BISYS FUND SERVICES OHIO, INC.
REPORTS
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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:
o performed good order review for all new and reregistered accounts;
o performed acceptance review for all monetary instruments received;
o administered signature guarantee policy in accordance with prospectus
requirements;
o administered escrow hold policy in accordance with prospectus
requirements;
o verified customer address changes;
o verified customer identification for all new accounts and all name
changes on existing accounts;
o 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;
o monitored all accounts for suspicious activity resulting in the filing
of [x] Form SAR reports during the period;
o 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;
o created the documentation necessary to provide a basis for law
enforcement authorities to trace illicit funds;
o 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 Company falls under the related USA
PATRIOT Act provisions:
o 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
o performed required due diligence on any new correspondent accounts
opened during the period.
