(h)(5)
ANTI-MONEY LAUNDERING AGREEMENT
This Agreement dated as of September 11, 2006 (the "Agreement") is entered into
by and between Investors Bank & Trust Company, a Massachusetts trust company,
and its affiliates (collectively, the "Bank"), and Xxxxxxx Xxxxxxx Funds, Inc.
(the "Fund").
WHEREAS, the Bank currently serves as administrator and/or custodian to the
Fund;
WHEREAS, the Fund and the Bank have each developed and implemented an
applicable written anti-money laundering ("AML") program (an "AML Program")
that incorporates a customer identification program ("CIP") and is designed to
satisfy the requirements of the U.S. Department of the Treasury, including its
Office of Foreign Assets Control ("OFAC"), the U.S. Securities and Exchange
Commission and the Bank Secrecy Act, as amended by the USA PATRIOT Act of 2001
(the "Acts");
WHEREAS, the Fund desires to delegate to the Bank the performance of certain
aspects of the Fund's AML Program to investors in the Fund ("Fund Customers")
in accordance with applicable law or regulation, and the Bank desires to accept
such delegation;
NOW THEREFORE, subject to the terms and conditions set forth in this Agreement,
Fund and the Bank hereby agree as follows:
1. Duties.
1.1. Duties of the Fund. Fund shall perform the following functions pursuant
to its AML Program with respect to Fund Customers:
(a) Notice. Fund shall provide notice to prospective Fund Customers
that information is being requested to verify their identity in order
to combat money laundering and terrorist financing.
(b) Information Collection. Fund shall obtain the following
identifying information from each Fund Customer, at a minimum: (i)
name, (ii) date of birth (if applicable), (iii) address and (iv)
taxpayer identification number or equivalent for non-U.S. persons and
entities (together, "CIP Information"). The Fund will also facilitate
the collection of any additional information that may be required
pursuant to the Bank's CIP. The Fund shall provide the foregoing
promptly to the Bank.
(c) Recordkeeping. Fund shall collect or, if applicable, create, and
retain the required records documenting the performance of these
functions in accordance with, and for the periods required by,
applicable law or regulation.
1.2. Duties of the Bank. The Bank shall perform the following functions
pursuant to its AML Program with respect to Fund Customers:
(a) Identity Verification. The Bank shall be responsible for verifying
the identity of Fund Customer's in accordance with its CIP through
appropriate documentary or non-documentary methods. To the extent
additional information or documentation is required, the Bank shall
contact the Fund to obtain such information.
(b) OFAC Compliance. The Bank shall screen Fund Customers against
lists of known or suspected terrorists or terrorist organizations
prepared by any U.S. federal government agency and referred to the
Bank in accordance with the Bank's AML Program and all federal
government directives related to such lists. These lists include, but
are not limited to, those prepared by OFAC, which administers and
enforces economic and trade sanctions against targeted foreign
countries, terrorism-sponsoring organizations and international
narcotics traffickers based on U.S. foreign policy and national
security goals. In the event that a new or existing Fund Customer
matches a name contained on one of the foregoing lists and the Bank
cannot resolve such match in accordance with the Bank's AML Program,
the Bank shall freeze such customer's assets and will immediately
inform the Fund's AML Compliance Officer and the appropriate
authorities of the foregoing circumstances.
(c) Transaction Monitoring and Suspicious Activity Reporting. The Bank
will monitor transactions in Fund Customer accounts using a risk-based
approach. Any suspicious activity identified will be reported to the
Bank's AML Compliance Officer who will contact the Fund's AML
Compliance Officer to determine whether to file a Suspicious Activity
Report ("SAR") on behalf of the Fund. If applicable, the Bank's AML
Compliance Officer will then ensure a SAR is properly filed on behalf
of the Bank. Each party will ensure they have appropriate section
314(b) certifications on file to permit such sharing of information.
(d) Recordkeeping. The Bank shall collect or, if applicable, create,
and retain the required records documenting the performance of these
functions in accordance with, and for the periods required by,
applicable law or regulation.
2. Certifications. The Bank and the Fund shall certify to the other, on an
annual basis and in such form as they may mutually agree on, that:
(a) it has established an AML Program which is reasonably designed to
prevent money laundering or the financing of terrorist activities in
accordance with the Acts;
(b) it has designated an individual or individuals responsible for
implementing and monitoring its AML Program;
(c) it has provided, and will continue to provide, ongoing training
for the appropriate personnel with respect to its AML Program;
(d) it provides for periodic, but at a minimum annual, independent
testing of those Policies; and
(e) it has performed the functions it has agreed to perform pursuant
to this Agreement.
3. Miscellaneous.
3.1. Governing Law. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the State of
Massachusetts. In the event of any inconsistency between the terms
of this Agreement and any other prior document or agreement
relating to the Bank's functions with respect to the Funds, the
parties agree that the terms of this Agreement shall control.
3.2 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with
respect to the subject hereof whether oral or written. In the event
any provision of this Agreement shall be held unenforceable or
invalid for any reason, the remainder of the Agreement shall remain
in full force and effect.
3.3. Heading. Headings to sections and subsections in this Agreement are
for the convenience of the parties only and are not intended to be
a part of or to affect the meaning or interpretation hereof.
3.4. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but
such counterparts shall, together, constitute only one instrument.
3.5 Limitation of Delegation. The Bank and the Fund acknowledge and
agree that each is agreeing to perform only those aspects of the
other party's as outlined in this agreement as specified in Section
1 above. The Bank and the Fund are not undertaking and shall not be
responsible for any other aspect of the other party's AML Program
or for the overall compliance with the Acts.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first written above.
INVESTORS BANK & TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Managing Director
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XXXXXXX LOEVNER FUNDS, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: President
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