FORM 8300, FINCEN SECTION 314(a) INFORMATION REQUESTS AND
SUSPICIOUS ACTIVITY REPORT AMENDMENT
This Form 8300, FinCEN Section 314(a) Information Requests and Suspicious
Activity Report Amendment (the "Amendment") is made as of April 20, 2007, by and
between Tweedy, Xxxxxx Fund, Inc., a Maryland corporation, (the "Fund") and PFPC
Inc., a Massachusetts corporation ("PFPC").
BACKGROUND:
A. The Fund and PFPC are parties to a Transfer Agency Services Agreement
dated as of May 9, 1997, as amended to date (the "Agreement").
B. The Fund desires that PFPC provide certain monitoring and reporting
services as set forth herein and, subject to the terms of this Amendment,
PFPC is agreeable thereto.
C. The Fund and PFPC desire to amend the Agreement to accommodate the
foregoing.
D. This Background section is hereby incorporated by reference in and made a
part of this Amendment.
TERMS:
Intending to be legally bound, the parties hereby agree that:
1. Form 8300 Services. Schedule A of the Agreement is hereby amended and
supplemented to add the following new provision:
The Fund hereby engages PFPC as its agent to prepare and file on
behalf of the Fund Internal Revenue Service ("IRS")/Financial Crimes
Enforcement Network ("FinCEN") Form 8300 filings and prepare required
notices. PFPC will use reasonable efforts to monitor and track cash,
currency and cash equivalents (as defined by the applicable
regulations) received on behalf of the Fund to assist the Fund to
comply with the requirements of IRC Reg. ss.1-6050I-1(c)(1)(ii). The
Fund acknowledges that it does not accept cash for any transaction. As
agent for the Fund, PFPC will prepare and file IRS/FinCEN Form 8300
and prepare and issue annual notices for the corresponding shareholder
accounts as required by applicable IRS/FinCEN rules. Upon the Fund's
reasonable written request and expense, PFPC will provide copies of
Forms 8300 and related shareholder notices to the Fund. PFPC will be
obligated hereunder to file such Form 8300s and prepare and issue such
notices only to the extent the requisite information is timely
provided to PFPC by the Fund.
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2. FinCEN Requests Under USA PATRIOT Act Section 314(a). Schedule A of the
Agreement is hereby amended and supplemented to add the following new provision:
The Fund hereby engages PFPC to undertake reviews, in response to
FinCEN Section 314(a) Information Requests received by the Fund and
transmitted to PFPC, of the Fund's records that PFPC maintains on
behalf of the Fund. The Fund recognizes that it is responsible under
applicable regulations for responding to Section 314(a) Information
Requests. Nonetheless, unless otherwise instructed by the Fund, PFPC
will conduct a search pursuant to the Section 314(a) request which
will be limited to current accounts, accounts maintained by a named
customer during the preceding 12 months, and transactions conducted by
or on behalf of or with a named customer during the preceding six
months in conformity with FinCEN guidance. When a potential FinCEN
Section 314(a) Information Request match (first and last name or tax
identification number) results from PFPC's established Section 314(a)
review procedures, the match will be referred to the Fund for
reporting to FinCEN, as the Fund may determine to be appropriate. In
addition, for accounts where both the name and social security number
match the account activity will be reviewed and, if PFPC in
coordination with the Fund's AML Compliance Officer, determines the
account and/or activity is suspicious, the item will be referred to
PFPC's SAR Filing Service process for further analysis, and if
appropriate, for preparation and filing of a SAR. PFPC will be
obligated hereunder to undertake reviews relating to FinCEN Section
314(a) Information Requests, notifying the Fund of potential FinCEN
Section 314(a) Information Request matches and reporting related
suspicious activity on Form SAR only to the extent the FinCEN Section
314(a) Information Request is timely provided to PFPC by the Fund.
3. Legal Process. Section [16] of the Agreement is hereby amended and
supplemented to add the following new provision:
The Fund hereby engages PFPC to assist the Fund in complying with
legal process which is defined to include civil and criminal
subpoenas, civil or criminal seizure orders and IRS civil or criminal
notices including notices of lien or levy by reviewing, in its
discretion, customer account activity. While the Fund will respond
directly and produce the information requested, PFPC will review the
process in consultation with the Fund's AML Compliance Officer and, in
its discretion, the customer account activity, to determine if
potentially suspicious activity has occurred. To the extent such
activity is discovered, PFPC, in coordination with the Fund's AML
Compliance Officer, will review the account activity and if it
determines that the account and /or the activity is suspicious, the
item will be referred to PFPC's SAR Filing Service process for further
analysis, and if appropriate, for preparation and filing of a SAR. The
Fund hereby agrees to provide any such legal process to PFPC within 14
days of its receipt.
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4. Suspicious Activity Report AML Services. Schedule A of the Agreement is
hereby amended and supplemented to add the following new provisions:
The Fund hereby engages PFPC as its agent to make the determinations
of and to prepare and file suspicious activity report ("SAR") filings
on behalf of the Fund as described in this Section. PFPC will use
reasonable efforts to (i) determine in coordination with the Fund's
AML Compliance Officer when a Form SAR should be filed as required by
regulations applicable to the Fund, (ii) prepare and file the Form SAR
as agent for the Fund and, maintain documents supporting the SAR,
(iii) if appropriate under regulatory guidance and procedures file a
Joint SAR as agent for the Fund and any other designated financial
institutions and (iv) provide the Fund with a copy of the Form SAR
within a reasonable time after filing. Although PFPC may file a joint
SAR for the Fund and other financial institutions, PFPC shall do so
solely as agent for the Fund, and not as agent for any other financial
institution. To the extent permitted by applicable law or regulation,
PFPC may share information related to the Services hereunder with its
supervising parent entities and financial institutions subject to a
joint SAR filing.
Each party will promptly notify the other party (as permitted by
applicable law) if any further communication is received from the U.S.
Department of the Treasury or any law enforcement agencies regarding
the SAR. The parties will reasonably cooperate and assist each other
in responding to inquiries from the U.S. Department of the Treasury or
law enforcement agencies with respect to the SAR or with respect to
supporting documentation for the SAR requested by any law enforcement
agency.
Unless prohibited by applicable law, each party will use reasonable
efforts to consult with the other party's authorized personnel prior
to contacting law enforcement authorities or filing a SAR.
Notwithstanding the foregoing, each party reserves the sole discretion
to make any such contacts or filings without prior notification or
approval of the other party. If upon consultation, the parties
disagree with a PFPC recommendation to contact law enforcement or file
a SAR, either party may make a notification or file a SAR, as
applicable, independently of the other party.
In addition to any confidentiality obligations set forth in the
Agreement, each party understands and acknowledges the extreme
confidential nature of underlying information concerning SAR filings
("SAR Confidential Information"). Each party agrees to hold all SAR
Confidential Information in strict confidence and to share such SAR
Confidential Information only with, to the extent permitted by
applicable law, (i) the other party, (ii) the Fund's control
affiliates ("control" as defined under Section (2(a)(9) of the
Investment Company Act of 1940), which may include the Fund's
investment adviser, and (iii) if applicable, another financial
institution involved in the transaction, and each of their respective
employees on a need-to-know basis.
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The Fund represents and warrants to PFPC that the Fund has in place a
confidentiality agreement with the Fund's control affiliates and any
other financial institution for which joint SARs may be filed that
require the control affiliates and each such financial institution to
maintain the confidence of SAR Confidential Information as required by
applicable law.
The Fund hereby authorizes PFPC, as its agent, to share information
about potentially suspicious activities, but not the acknowledgment or
copy of any SAR filing, with other financial institutions in
accordance with Section 314(b) of the USA PATRIOT Act. As between PFPC
and the Fund, the Fund will be solely responsible for the timely
filing of any annual notices required by Section 314(b) to allow PFPC
to share such information.
5. Indemnification/Limitation of Liability. Section [10] of the Agreement is
hereby amended and supplemented to add the following new provision:
Notwithstanding anything to the contrary in the Agreement, the Fund
shall indemnify, defend and hold harmless PFPC and its affiliates,
including their respective officers, directors, agents and employees,
from all charges, expenses, assessments, claims and liabilities of any
kind (including, without limitation, attorneys' fees and
disbursements) arising directly or indirectly from any action or
omission to act of PFPC in connection with the provision of services
to the Fund under this Amendment. Neither PFPC, nor any of its
affiliates, shall be indemnified against any liability (or any
expenses incident to such liability) caused by PFPC's or its
affiliates' own willful misconduct in the performance of PFPC's
activities under this Agreement. Notwithstanding anything in this
Agreement to the contrary, (i) neither PFPC nor its affiliates shall
be liable for any consequential, special or indirect losses or
damages, whether or not the likelihood of such losses or damages was
known by PFPC or its affiliates and (ii) PFPC's cumulative liability
to the Fund for all losses, claims, suits, controversies, breaches or
damages for any cause whatsoever (including but not limited to those
arising out of or related to this Agreement) and regardless of the
form of action or legal theory shall not exceed the fees received by
PFPC for the services provided under this Amendment during the twelve
(12) months immediately prior to the date of such loss or damage.
6. Miscellaneous.
(a) Capitalized terms not defined in this Amendment have their
respective meanings as defined in the Agreement.
(b) As compensation for services rendered by PFPC under this
Amendment, the Fund will pay to PFPC such fees and expenses as may
be agreed to from time to time in writing by the Fund and PFPC.
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(c) As hereby amended and supplemented, the Agreement shall remain in
full force and effect. In the event of a conflict between the
terms hereof and the Agreement, this Amendment shall control.
(d) The Agreement, as amended hereby, together with its Exhibits and
Schedules, constitutes the complete understanding and agreement of
the parties with respect to the subject matter hereof and
supersedes all prior communications with respect thereto.
(e) This 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 instrument. The facsimile
signature of any party to this Amendment shall constitute the
valid and binding execution hereof by such party.
(f) If any provision of the Agreement including this Amendment is
found to be invalid, illegal or unenforceable, no other provision
of this contract shall be affected and all other provisions shall
be enforced to the full extent of the law.
(g) This Amendment shall be governed by the laws of the State of
Delaware, without regard to its principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers, as of the day and year first above
written.
TWEEDY, XXXXXX FUND, INC.
By: /s/ X. X. Xxxxxxxxxxx
_______________________________________
Name: X. X. Xxxxxxxxxxx
Title: VP & COO
PFPC INC.
By: /s/ Xxxxxxx XxXxxxxx
_______________________________________
Name: Xxxxxxx XxXxxxxx
Title: Executive Vice President, Senior Managing Director
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