Exhibit (h)(2)
AMENDMENT TO
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TRANSFER AGENCY AGREEMENT
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AMENDMENT made as of the 24th day of July, 2002, between RBC Funds (the
"Company"), a Maryland Corporation having its principal place of business at
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and BISYS FUND SERVICES OHIO, INC.
("BISYS"), an Ohio corporation having its principal place of business at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, to that certain Transfer Agency Agreement
dated January 1, 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 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 the extent consistent therewith.
The provisions of the Agreement concerning record keeping 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.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed all as of the day and year first above written.
By:
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Title:
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BISYS FUND SERVICES OHIO, INC.
By:
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SCHEDULE B
TO THE AMENDMENT TO THE
TRANSFER AGENCY AGREEMENT
BETWEEN
RBC FUNDS
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
RBC FUNDS
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
RBC FUNDS
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:
- 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 Company 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.