Amended and Restated Delegation Amendment
October 2, 2006
Xxxxxxx X. Xxxxxxxxxx
The Xxxx Xxxxx Funds
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Dear Xx. Xxxxxxxxxx:
Each of the investment companies set forth below, including each series thereof
(collectively, the "Fund") and State Street Bank and Trust Company (the
"Transfer Agent") are parties to Transfer Agency and Service Agreements (the
"Agreement(s)") under which the Transfer Agent performs certain transfer agency
and/or record-keeping services for the Fund. A list of the Agreements is
attached to this Delegation Amendment as Schedule X.
In connection with new regulations promulgated pursuant to Section 312 of the
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of2001 (the "USA PATRIOT Act") the Fund has
requested and the Transfer Agent has agreed to amend and restate the original
Delegation Agreement dated as of July 15,2003 in the manner set forth below:
Whereas, the USA PATRIOT Act imposes anti-money laundering requirements on
financial institutions, including investment companies;
Whereas, the Fund recognizes the importance of complying with the USA PATRIOT
Act and the Fund has developed and implemented a written anti-money laundering
program, which is designed to satisfy the requirements of the USA PATRIOT Act,
(the "Fund's Program");
Whereas, the USA PATRIOT Act authorizes the Fund to delegate to a service
provider, including its transfer agent, the implementation and operation of
aspects of the Fund's Program; and
Whereas, the Fund desires to delegate to the Transfer Agent the implementation
and operation of certain aspects of the Fund's Program and the Transfer Agent
desires to accept such delegation. Now Therefore, in consideration of the
foregoing and the mutual covenants and agreements hereinafter contained, the
parties hereby agree to amend the Agreement, pursuant to the terms thereof, as
follows:
1. Delegation; Duties
1.1 The Fund hereby delegates to the Transfer Agent the responsibility for
performing the AML functions and duties described in Exhibit A, attached
hereto. The duties set forth on Exhibit A may be amended, from time to
time, by mutual agreement of the parties upon the execution by both parties
of a revised Exhibit A bearing a later date than the date hereof.
1.2 The Transfer Agent agrees to perform such delegated duties, with respect
to the ownership of shares in the Fund for which the Transfer Agent
maintains the applicable shareholder information in accordance with the
terms and conditions of the Agreement (the "Delegated Duties").
2. Consent to Examination; Reporting and Information.
2.1 In connection with the performance by the Transfer Agent of the Delegated
Duties, the Transfer Agent understands and acknowledges that the Fund
remains responsible for assuring compliance with the USA 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
such compliance. The Transfer Agent hereby: (i) agrees to maintain any
records required by the USA PATRIOT Act in connection with its performance
of the duties set forth on Exhibit A; and (ii) consents to examination
and/or inspection by federal regulators in order that the regulators may
evaluate the Funds' compliance with the Fund's Program, 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.
2.2 Within a reasonable time following the written request of the Fund, the
Transfer Agent shall provide the Fund with a written copy of (i) its
current anti-money laundering ("AML") procedures and (ii) its current
customer identification ("CIP") procedures (collectively, the
"Procedures"), as each relate to the Delegated Duties performed by the
Transfer Agent for the Fund, and (iii) such other information about the
Transfer Agent's performance of the Delegated Duties as the Fund shall
reasonably request; provided, however, the foregoing shall not include the
right to conduct any audit or inspection of the Transfer Agent's
performance of the Delegated Duties. On an annual basis, the Fund may
request that the Transfer Agent certify as to the performance of the
Delegated Duties and the Transfer Agent shall provide the Fund with such
certification substantially in the form attached hereto as Exhibit B.
3. Limitation on Delegation.
3.1 The Fund acknowledges and agrees that in accepting the delegation
hereunder, the Transfer Agent is agreeing to perform only those aspects of
the Fund's Program that have been expressly delegated hereby and is not
undertaking and shall not be responsible for any other aspect of the Fund's
Program or for the overall compliance by the Fund with the USA PATRIOT Act.
Additionally, the parties acknowledge and agree that the Transfer Agent
shall only be responsible for performing the Delegated Duties with respect
to the ownership of shares in the Fund for which the Transfer Agent
maintains the applicable shareholder information.
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4. Expenses.
4.1 In consideration of the performance of the foregoing duties, the Fund
agrees to pay the Transfer Agent for the reasonable administrative expense
that may be associated with such additional duties. The terms of the
Agreement shall apply with respect to the payment of such expense in the
same manner and to the same extent as any other expenses incurred under the
Agreement.
5. Miscellaneous.
5.1 In all other regards, the terms and provisions of the Agreement shall
continue to apply with full force and effect.
5.2. Each party represents to the other that the execution and delivery of this
Amendment has been duly authorized.
5.3. This Delegation Amendment may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same agreement.
[Signature page to follow]
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In Witness Whereof, each of the parties has caused this Amendment to be
executed in its name and behalf by its duly authorized representative as of the
date first above written.
WITNESSED By: STATE STREET BANK AND TRUST COMPANY
/s/Xxxxxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
_____________________ ________________________
Xxxxxx X. Xxxxxx, Executive Vice President
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President, Associate Counsel
WITNESSED By:
/s/ Xxxxxxx Xxxxxxxxxx
----------------------
NAME: Xxxxxxx Xxxxxxxxxx
------------------
Title: Secretary XXXX XXXXX XXXXXXX STREET TRUST, INC.
XXXX XXXXX GLOBAL TRUST, INC.
XXXX XXXXX GROWTH TRUST, INC.
XXXX XXXXX INCOME TRUST, INC.
XXXX XXXXX INVESTORS TRUST, INC.
XXXX XXXXX INVESTMENT TRUST, INC.
XXXX XXXXX LIGHT STREET TRUST, INC.
XXXX XXXXX SPECIAL INVESTMENT TRUST, INC.
XXXX XXXXX TAX-FREE INCOME FUND
XXXX XXXXX VALUE TRUST, INC.
By: Xxxxxxx Xxxx
Xxxxxxx Xxxx
Vice President
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EXHIBIT A
DELEGATED DUTIES
Amended and Restated: October 2,2006
With respect to the ownership of shares in the Fund for which the Transfer Agent
maintains the applicable shareholder information, the Transfer Agent shall:
o Submit all new account and registration maintenance transactions through
the Office of Foreign Assets Control ("OFAC") database and such other lists
or databases of trade restricted individuals or entities as may be required
from time to time by applicable regulatory authorities.
o Submit special payee checks through the OFAC database.
o Review redemption transactions that occur within thirty (30) days of
account establishment or maintenance.
o Review wires sent pursuant to banking instructions other than those on file
with the Transfer Agent.
o Review accounts with small balances followed by large purchases.
o Review accounts with frequent activity within a specified date range
followed by a large redemption.
o On a daily basis, review purchase and redemption activity per tax
identification number ("TIN") within the Funds to determine if activity for
that TIN exceeded the $100,000 threshold on any given day.
o Compare all new accounts and registration maintenance through the Known
Offenders database and notify the Fund of any match.
o Monitor and track cash equivalents under $10,000 for a rolling twelve-month
period and file IRS Form 8300 and issue the shareholder notices required by
the IRS.
o Determine when a suspicious activity report ("SAR") should be filed as
required by regulations applicable to mutual funds; prepare and file the
SAR; notwithstanding the foregoing, the Transfer Agent shall not be
responsible for determining when a SAR should be filed in connection with
customer identification procedures for accounts opened by the Fund or its
distributor and, in such case, the Fund shall give timely notice and
information to the Transfer Agent so that the Transfer Agent may prepare
and file a SAR in such circumstances. Provide the Fund with a copy of the
SAR within a reasonable time after filing; notify the Fund if any further
communication is received from U.S. Department of the Treasury or other law
enforcement agencies regarding the SAR.
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o Compare account information to any FinCEN request received by the Fund and
provided to the Transfer Agent pursuant to USA PATRIOT Act Sec. 314(a).
Provide the Fund with documents/information necessary to respond to
requests under USA PATRIOT Act Sec. 314 (a) within required time frames.
o (i) For accounts that are opened by the Transfer Agent: (i) verify the
identity of any person seeking to open an account with the Fund, (ii)
maintain records of the information used to verify the person's identity
and (iii) determine whether the person appears on any lists of known or
suspected terrorists or terrorists organizations provided to the Fund by
any government agency. The Fund shall complete customer identification
procedures on accounts that are opened by the Fund or its distributor;
provided, however, the Transfer Agent shall run such accounts through one
or more third party databases, as needed, and shall notify the Fund of any
accounts that cannot be verified against such databases. Any accounts
opened by the Fund that require further information for customer
identification shall be referred back to the Fund for further research.
o Shall not establish new accounts for foreign financial institutions in the
Fund without the written (including fax or email) approval of the Fund's
AML Officer. The Transfer Agent shall periodically monitor new accounts and
notify the Fund's AML Officer if any account has been opened for a foreign
financial institution and shall obtain further instruction from the Fund's
AML Officer as to such accounts. If the Fund's AML Officer directs the
Transfer Agent to open an account for a foreign financial institution, the
Transfer Agent shall conduct additional due diligence for the account and
determine a risk-ranking for the account, pursuant to the same procedures
as set forth in the following paragraphs with respect to Existing Accounts.
o Prior to October 2, 2006, provide the Fund with a report of correspondent
accounts opened prior to July 5, 2006 ("Existing Accounts"). Beginning no
later than October 2, 2006, conduct additional due diligence for Existing
Accounts selected by the Fund for further review in accordance with the
following procedures. The Transfer Agent shall attempt to obtain additional
information about the accountholder by sending the accountholder a foreign
financial institution questionnaire and shall notify the Fund's AML
Compliance Officer of each such mailing. For Existing Accounts selected by
the Fund, the Transfer Agent will perform an assessment of the money
laundering risk presented by the Existing Account based on a consideration
of relevant factors in accordance with applicable law and information
provided by the foreign financial institution in a financial institution
questionnaire. After assessing the money laundering risk and determining a
risk-ranking for the Existing Account, the Transfer Agent will notify the
Fund's AML Officer of any such Existing Account with a medium or above
risk-ranking to obtain further instruction from the Fund. In the situation
where due diligence cannot be completed with respect to such Existing
Account, the Transfer Agent will contact the Fund's AML Officer for further
instruction. For any Existing Accounts that are maintained following
initial due diligence review, in addition to its regular monitoring of
accounts for suspicious activities, a periodic review of the account
activity will be performed by the Transfer Agent in order to determine
consistency with information obtained about the type, purpose, and
anticipated activity of the account as detailed in the financial
institution questionnaire. The Transfer Agent shall notify the Fund's AML
Compliance Officer promptly in any case where (i) an accountholder fails to
complete the foreign financial institution questionnaire after forty-five
(45) days from the initial mailing or after thirty (30) days from a
follow-up mailing, (ii) the Transfer Agent detects suspicious activity as a
result of the foregoing procedures, or (iii) the periodic review of account
activity discloses activity
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inconsistent with the type, purpose, or anticipated activity of the
account. In each such case, the Transfer Agent shall determine whether a
SAR should be filed as required by AML regulations applicable to mutual
funds; promptly notify and consult with the Fund's AML Compliance Officer,
and prepare and file the SAR. The Transfer Agent shall provide the Fund
with a copy of each SAR filed within a reasonable time after filing and
shall notify the Fund's AML Compliance Officer promptly if any further
communication is received from U.S. Department of the Treasury or other law
enforcement agencies regarding the SAR.
o Upon request by the Fund, generate periodic reports of Existing Accounts
for review by the Fund for purposes of compliance with USA PATRIOT Act,
Section 312.
In the event that the Transfer Agent detects suspicious activity as a result of
the foregoing procedures, which necessitates the filing by the Transfer Agent of
a SAR, a Form 8300 or other similar report or notice to OF AC or other
regulatory agency, then the Transfer Agent shall also immediately notify the
Fund unless prohibited by applicable Law.
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EXHIBIT B
FORM OF ANNUAL AML CERTIFICATION
DATE
Xxxxxxx X. Xxxxxxxxxx
The Xxxx Xxxxx Funds
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Dear Xx. Xxxxxxxxxx:
The registered investment companies listed on Schedule X (together with each
series thereof, individually, the "Fund" and collectively, the "Funds") and
State Street Bank and Trust Company ("State Street") are parties to Transfer
Agency and Service Agreements (collectively, the "Agreements") under which State
Street, through its service provider, Boston Financial Data Services, Inc.
("Boston Financial") performs transfer agency services for the Funds. At the
Funds' request we confirm the following to the Fund as of the date written
above:
1. Boston Financial, pursuant to various U.S. regulations, has established,
and will continue to maintain, an anti-money laundering program designed to
comply with the Bank Secrecy Act, as amended by Title III of the USA
PATRIOT Act, and the rules thereunder for its own organization.
2. Boston Financial maintains anti-money laundering and customer
identification procedures (the "Procedures) for performance of the
delegated duties ("Delegated Duties") as set forth in Exhibit A to the
Delegation Amendment dated July 15, 2003, as the same may be amended or
amended and restated from time to time (the "Delegation Amendment"), in
accordance with the laws and regulations applicable to such Delegated
Duties.
3. Boston Financial confirms that it has performed the Delegated Duties
pursuant to the Procedures in all material respects.
4. Boston Financial confirms that, following a request from the Fund, Boston
Financial will supply the Fund with copies of (i) Boston Financial's own
anti-money laundering policy, (ii) the Procedures and (ii) such other
relevant information regarding the Boston Financial anti-money laundering
policy and the Procedures as the Fund may reasonable request from time to
time.
5. Boston Financial's internal Audit Department audits a portion of the AML
duties delegated to Boston Financial by its clients on an organization-wide
basis (which mayor may not include the specific Delegated Duties performed
for the Fund) at least annually
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for compliance with established anti-money laundering procedures. At least
annually, Boston Financial shall engage an outside accounting firm to provide an
"agreed upon procedures" report (or such successor report provided by such
outside accounting firm) related to its compliance program, including
performance of the AML duties delegated to Boston Financial by its clients on an
organization-wide basis (which mayor may not include the specific Delegated
Duties performed for the Fund). Boston Financial shall furnish the Fund with a
copy of such report when available from the outside accounting firm; provided
that the Fund has complied with any conditions of its release imposed by such
outside accounting firm or Boston Financial.
Sincerely,
Xxxx Xxxx
Chief Compliance Officer
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SCHEDULE X
1. Transfer Agency and Service Agreement between Xxxx Xxxxx Xxxxxxx Street
Trust, Inc. and State Street Bank and Trust Company dated August 13, 1998.
2. Transfer Agency and Service Agreement between Xxxx Xxxxx Global Trust, Inc.
and State Street Bank and Trust Company dated May 15, 1993.
3. Transfer Agency and Service Agreement between Xxxx Xxxxx Focus Trust, Inc.
and State Street Bank and Trust Company dated August 1, 1998. (now Growth
Trust)
4. Transfer Agency and Service Agreement between Xxxx Xxxxx Income Trust, Inc.
and State Street Bank and Trust Company dated as of June 19, 1987.
5. Transfer Agency and Service Agreement between Xxxx Xxxxx Investors Trust,
Inc. and State Street Bank and Trust Company dated September 1, 1993.
6. Transfer Agency and Service Agreement between Xxxx Xxxxx Investment Trust,
Inc. and State Street Bank and Trust Company dated December 30, 1999.
7. Transfer Agency and Service Agreement between Xxxx Xxxxx Light Street
Trust, Inc. and State Street Bank and Trust Company dated November 10,
1998.
8. Transfer Agency and Service Agreement between Xxxx Xxxxx Special Investment
Trust, Inc. and State Street Bank and Trust Company dated December 20,
1985.
9. Transfer Agency and Service Agreement between Xxxx Xxxxx Tax-Free Income
Fund and State Street Bank and Trust Company dated as of July 9, 1991.
10. Transfer Agency and Service Agreement between Xxxx Xxxxx Value Trust, Inc.
and State Street Bank and Trust Company dated April 16, 1982.
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