Exhibit h.3
FIRST AMENDMENT TO THE
TRANSFER AGENCY AND SERVICE AGREEMENT
PHOENIX-KAYNE FUNDS
FIRST AMENDMENT TO THE
TRANSFER AGENCY AND SERVICE AGREEMENT
PHOENIX-KAYNE FUNDS
THIS FIRST AMENDMENT is made by and between the Phoenix-Kayne Funds
(hereinafter referred to the "Fund"), and Phoenix Equity Planning Corporation
(hereinafter referred to as the "Transfer Agent") and amends the Transfer Agency
and Service Agreement dated as of July 20, 2002 (the "Agreement"), pursuant to
which the Transfer Agent has agreed to provide certain transfer agent and
related services to the Fund.
WHEREAS, The Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) of 2001
(the "Patriot Act") was enacted and regulations have been promulgated thereunder
that impose new anti-money laundering requirements on financial institutions,
including mutual funds;
WHEREAS, The Fund is committed to compliance with the Patriot Act, and
implementing regulations thereunder and, the Fund has developed and implemented
a written anti-money laundering program (the "Program"), which is designed to
satisfy the requirements of the Patriot Act and implementing regulations
applicable to mutual funds;
WHEREAS, The Patriot Act authorizes a mutual fund to delegate to a
service provider, including its transfer agent, the implementation and operation
of the Program;
WHEREAS, The parties mutually desire to amend the Agreement to delegate
the implementation and operation of the Program to the Transfer Agent; and
WHEREAS, The parties further mutually desire to amend the Agreement to
specify their respective roles and responsibilities with respect to Regulation
S-P of the Securities Exchange Commission, the Xxxxxxxx-Xxxxx Act of 2002, and
Rule 38a-1 under the Investment Company Act of 1940, as amended;
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the parties do hereby agree to amend the
Agreement as follows:
1. Article 1, Section 1.02 is hereby amended by changing the existing
subsection (e) in Section 1.02 of the Agreement to subsection (f) and
adding the following as subsection (e) thereto:
The Fund hereby delegates to the Transfer Agent the implementation,
administration and operation of the Fund's anti-money laundering
program, as such anti-money laundering program is adopted by the Fund
and as amended from time to time (the "Program") provided that such
Program and any amendments are promptly provided to the Transfer Agent.
The Fund hereby further authorizes the sub-delegation by the Transfer
Agent of the implementation, administration and operation of certain
aspects of the Fund's Program to State Street Bank and/or its
subdelegatee, Boston Financial Data Services, Inc. ("Boston Financial")
pursuant to that certain Sub-Transfer Agency and Service
Agreement dated June 1, 1994, provided that the Fund has been given
written notice of the terms of such Program subdelegation. The Transfer
Agent agrees to perform all of the duties delegated under this
subsection (e) and to undertake any subdelegation thereof solely in
accordance with terms hereof. The Transfer Agent further agrees that it
will fully cooperate with the designated anti-money laundering
compliance officer (the "AML Compliance Officer") of the Fund in the
discharge of its delegated duties hereunder. The Transfer Agent agrees
to provide to the Fund, its AML Compliance Officer, internal or
external auditors, regulatory authorities or the duly appointed agents
of any of the foregoing (collectively, the "Interested Parties") any
and all necessary reports and information requested by the Fund or any
of the Interested Parties, as the case may be, with respect to the
Transfer Agent's performance of its delegated duties under the Program.
In connection with the performance by the Transfer Agent of the
above-delegated duties, the Transfer Agent understands and acknowledges
that the Fund remains responsible for assuring compliance with the
Patriot Act and that the records the Transfer Agent maintains for the
Fund relating to the Fund's Program may be subject, from time to time,
to examination and/or inspection by federal regulators in order that
the regulators may evaluate the compliance of the Fund with the Patriot
Act. The Transfer Agent hereby consents to such examination and/or
inspection and agrees to cooperate with such federal examiners in
connection with their review. For purposes of such examination and/or
inspection, the Transfer Agent will use its best efforts to make
available, during normal business hours, all required records and
information for review by such examiners.
2. Article 8 is hereby amended by adding the following as Sections 8.06,
8.07, 8.08 and 8.09 thereto:
8.06 The Transfer Agent agrees to cooperate with the Fund and will
facilitate the filing by the Fund and/or its officers and auditors of any and
all certifications or attestations as required by the Xxxxxxxx-Xxxxx Act of
2002, including, without limitation, furnishing such sub-certifications from
relevant officers of the Transfer Agent with respect to the services and
recordkeeping performed by the Transfer Agent under the Agreement as the Fund
shall reasonably request from time to time.
8.07 Upon request, the Transfer Agent agrees to provide its written
policies and procedures pursuant to Rule 38a-1 under the Investment Company Act
of 1940, as amended to the Fund's chief compliance officer for review and the
Fund's board of trustees' approval. The Transfer Agent further agrees to
cooperate with the Fund in its review of such written policies and procedures,
including without limitation furnishing such certifications and
sub-certifications as the Funds shall reasonably request from time to time.
8.08 The Transfer Agent agrees that it shall promptly notify the Fund
in the event that a "material compliance matter" (as such term is defined
pursuant to Rule 38a-1 under the 0000 Xxx) arises with respect the services it
provides under the Agreement.
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8.09 The Transfer Agent shall not, directly or indirectly, disclose or
use any nonpublic personal information regarding the consumers or customers of
the Fund (as the terms "consumer" and "customer" are defined in Rule 3(g) and
3(i), respectively, of Regulation S-P of the Securities and Exchange
Commission), other than to carry out the functions contemplated by this
Agreement, and the Transfer Agent shall establish appropriate administrative,
technical and physical safeguards to protect the security, confidentiality and
integrity of any such nonpublic personal information.
3. Except as expressly amended hereby, all provisions of the Agreement remain
in full force and effect and are unchanged in all other respects. All
initial capitalized terms used but not defined herein shall have such
meaning as ascribed thereto in the Agreement, as amended.
4. This Amendment shall become effective as of the execution date set forth
below.
5. This Amendment may be executed in one or more counterparts, each of which
shall be deemed to be an original and, all of which, when taken together,
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto intending to be legally bound
have caused this Amendment to be executed by their duly authorized officers or
other representatives as of this 28th day of February, 2004.
PHOENIX-KAYNE FUNDS
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Executive Vice President
PHOENIX EQUITY PLANNING CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
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