Exhibit (h)(5)
FORM OF AMENDMENT TO
TRANSFER AGENCY AGREEMENT
AMENDMENT made this 24th day of July, 2002, between THE XXXXXX
XXXXXXXXX TRUST (the "Trust"), a Delaware business trust having its principal
place of business at Five Tower Bridge, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxx
Xxxxxxxxxxxx, 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 between the
Trust and BISYS, under which BISYS performs transfer agency services for the
Trust (as amended and in effect on the date hereof, the "Agreement").
WHEREAS, under the Agreement BISYS is designated as the
Trust's transfer agent and performs the transfer agency services for the Trust
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 Trust desires that BISYS perform certain
additional services for the Trust 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 Trust 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 Trust, and to supplement and
clarify certain provisions of the Agreement.
NOW, THEREFORE, in consideration of the covenants herein
contained, the Trust and BISYS hereby agree as follows:
1. Compliance with Laws / Delegation to BISYS.
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 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 Trust (the "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 5 and 6 of this
Amendment, which require that the AML Program adopted by the Trust and any
material amendments thereto be submitted to BISYS.
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 enumerated in Schedule B
involves the exercise of discretion, which in certain 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, and consultation with the Trust shall not be
required in connection therewith unless expressly required by 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 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 Trust 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 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 Trust 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 Trust'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 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 performed by
BISYS. 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, the Trust shall provide such bank or banks with all instructions and
authorizations necessary for BISYS to effect such disbursements.
4. Instructions / Procedures.
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 adopted by the Trust and approved by BISYS (including any
requirements of the Trust'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 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 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 Trust 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 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.
The Trust 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 Trust 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 Trust and furnished to
BISYS by the Trust.
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 Trust
(other than an officer or employee of BISYS) 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.
5. Representations and Warranties.
The Trust represents and warrants that (a) the Trust has
adopted the written AML Program that has been submitted to BISYS pursuant to
Section 6, and has appointed the Trust's AML Compliance Officer, who is, or who
will be appointed at the next regularly scheduled meeting of the Board of
Trustees of the Trust (the "Board"), an officer of the Trust; (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 Trust
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 Trust's AML Compliance Officer need not
be an officer of the Trust if not required by applicable laws and regulations.
BISYS represents and warrants to the Trust 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 Trust.
The Trust 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 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.
(b) A copy of the Trust'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 Trust 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 Trust provided by, or at the direction of the Trust 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
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 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 Trust, the
AML Compliance Officer, and regulators having jurisdiction over the Trust, to
the books and records maintained by BISYS as the same relates to the services
performed hereunder on behalf of the Trust. 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 Trust.
At least quarterly, BISYS shall provide a report to the Trust
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.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed all as of the day and year first above written.
THE XXXXXX XXXXXXXXX TRUST
By:_____________________________________
Title: _________________________________
BISYS FUND SERVICES OHIO, INC.
By:_____________________________________
Title: _________________________________
SCHEDULE B
TO THE AMENDMENT TO THE
TRANSFER AGENCY AGREEMENT
BETWEEN
THE XXXXXX XXXXXXXXX TRUST
AND
BISYS FUND SERVICES OHIO, INC.
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 U.S.
Treasury Department, 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.
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
THE XXXXXX XXXXXXXXX TRUST
AND
BISYS FUND SERVICES OHIO, INC.
CHARGES FOR THE SERVICES SET FORTH
UNDER SCHEDULE B OF THIS AMENDMENT
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
THE XXXXXX XXXXXXXXX TRUST
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:
.. 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;
.. created the documentation necessary to provide a basis for law
enforcement authorities to trace illicit funds;
.. 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.
