Exhibit 23(h)(1)(d)
AMENDMENT TO
TRANSFER AGENCY AGREEMENT
AMENDMENT made this 25th day of July, 2002, between THE EMPIRE BUILDER TAX
FREE BOND FUND (the "Fund"), a Massachusetts business trust having its principal
place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, and BISYS FUND
SERVICES OHIO, INC. ("BISYS"), a Delaware corporation having its principal place
of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, to that certain Transfer
Agency Agreement dated October 1, 1996 and Amended as of January 1, 2000, under
which BISYS performs transfer agency services for the Fund (as amended and in
effect on the date hereof, the "Agreement").
WHEREAS, BISYS is designated as the Fund's transfer agent under the
Agreement 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 enumerated in this
Amendment (the "AML Services") on the terms and conditions set forth in this
Amendment; 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 enumerated 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 hereby 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 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.
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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 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 maintain policies and procedures, and related internal controls, 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, notwithstanding the delegation
provided for in the foregoing paragraph, the Fund 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 Fund, taking into account factors such as its size,
location, activities and risks or vulnerabilities to money laundering.
In connection with the foregoing delegation, the Fund 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 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 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.
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.
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2. Reimbursement of Expenses and Miscellaneous Service Fees.
In addition to all fees, expenses and miscellaneous charges provided for
under the Agreement, BISYS shall be entitled to receive from the Fund 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 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 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 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 Fund (other than an employee of BISYS)
and delivered to BISYS (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, as long as BISYS acts in good faith and without willful misconduct it
shall have no liability for any loss, liability, expenses or damages to the Fund
resulting from the Exception, and the Fund shall indemnify BISYS and hold BISYS
harmless from any loss, liability, expenses (including reasonable attorneys
fees) and damages resulting to BISYS therefrom.
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 amendments shall be delivered to the
Fund 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 Fund and furnished to BISYS
by the Fund.
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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 Declaration of Trust, By-Laws or
then-current prospectuses, or any rule, regulation or requirement of any
regulatory body.
5. Representations and Warranties.
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, or will appoint at the next regularly scheduled meeting of the Board
of Trustees of the Fund (The "Board") an officer of the Fund as its AML
Compliance Officer, (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 Fund will submit any material amendments to
the AML Program to BISYS for BISYS' review. Any amendment that would have a
material impact on the AML Services to be rendered by BISYS or the
responsibilities of BISYS hereunder shall be subject to approval by BISYS prior
to adoption.
The Fund's AML Compliance Officer need not be an officer of the Fund if
not required by applicable laws and regulations.
BISYS represents and warrants to the Fund that it has adopted and will
maintain a written program concerning the AML 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 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, with the Fund's AML Compliance
Officer included among the officers therein, and any other persons
(who may be associated with the Fund 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 Fund's written AML Program, as defined in Section 1 of
this Amendment, including related Policies and Procedures.
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7. Information Furnished by BISYS.
BISYS has furnished to the Fund the following:
(a) The currently effective BISYS "As-of" Trading Policy.
(b) The written program concerning AML Services rendered by BISYS to its
various clients.
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 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 Fund, the AML
Compliance Officer, and regulators having jurisdiction over the Fund, to the
books and records maintained by BISYS as the same relates to the services
performed hereunder on behalf of the Fund. 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
AML Services at least annually or at such other intervals as may be reasonably
necessary or appropriate.
10. Reports to be Furnished to the Fund.
At least quarterly, BISYS shall provide a report to the Fund containing
the information listed on Scheduled 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
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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.
THE EMPIRE BUILDER TAX FREE
BOND FUND
By: /s/ X. Xxxxx
Vice President
BISYS FUND SERVICES OHIO, INC.
By: /s/ X. Xxxxx
President
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SCHEDULE B
TO THE AMENDMENT TO THE
TRANSFER AGENCY AGREEMENT
BETWEEN
THE EMPIRE BUILDER TAX FREE BOND FUND
AND
BISYS FUND SERVICES OHIO, INC.
SERVICES
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 U.S. Treasury Department,
the Internal Revenue Service or each agency's designated agent, in
each case consistent with the Fund's AML Program.
c. Place holds on transactions in shareholder accounts or freeze assets
in shareholder accounts, as provided in the Fund'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 Fund's AML Program, 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 and Fund operations related to the AML Services.
g. Perform such other related services as are required by the AML
Program.
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SCHEDULE C
TO THE AMENDMENT TO THE
TRANSFER AGENCY AGREEMENT
BETWEEN
THE EMPIRE BUILDER TAX FREE BOND 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 $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.
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SCHEDULE D
TO THE AMENDMENT TO THE
TRANSFER AGENCY AGREEMENT
BETWEEN
THE EMPIRE BUILDER TAX FREE BOND 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:
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 Fund 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.
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