AML AMENDMENT TO TRANSFER AGENCY AND SERVICE AGREEMENT
Arbor Fund (the "Trust") and Xxxxxxx Bank ("Xxxxxxx") are parties to an
agreement dated as of the 31st day of May, 2000 (the "Agreement") under which
Xxxxxxx performs certain transfer agency and/or recordkeeping services for
certain Portfolios (as defined in the Agreement) of the Trust.
In connection with the enactment of the USA PATRIOT Act of 2001 and the
regulations promulgated thereunder (collectively the "Act"), the Trust has
adopted an Anti-Money Laundering ("AML") Program. The Trust, on behalf of the
Portfolios, and Xxxxxxx agree to amend the Agreement to delegate to Xxxxxxx
certain responsibilities in connection with the Act and the Trust's AML Program,
as further set forth below.
1. Adoption of Program; Delegation to Xxxxxxx
(a) The Trust acknowledges that it is a financial institution subject to the Act
and the Bank Secrecy Act (collectively, the "AML Acts"). The Trust has adopted,
on behalf of the Portfolios, and agrees to comply with, a written AML Program
and has appointed an AML Compliance Officer, each of which actions have been
approved by the Board of Trustees of the Trust (the "Board"). Subject to
delegation of certain responsibilities to Xxxxxxx, as provided below, the
Trust's AML Program is reasonably designed to ensure compliance in all material
respects with the AML Acts and applicable regulations adopted thereunder (the
"Applicable AML Laws"), in light of the particular business of the Trust, taking
into account factors such as its size, location, activities and risks or
vulnerabilities to money laundering.
(b) The Trust, on behalf of the Portfolios, hereby delegates to Xxxxxxx the
performance, on behalf of the Portfolios, of the services set forth in Schedule
A to this Amendment (the "AML Services") with respect to the shareholder
accounts maintained by Xxxxxxx pursuant to the greement (including, as and to
the extent set forth in Schedule A, direct accounts; accounts maintained through
FUND/SERV and Networking; and omnibus accounts); and, subject to the terms and
conditions of the Agreement and this Amendment, Xxxxxxx accepts this delegation
and agrees to perform the AML Services in accordance with the Trust's and
Xxxxxxx'x AML Programs and to cooperate with the Portfolios' AML Compliance
Officer (as defined below) in the performance of its responsibilities hereunder.
(c) Notwithstanding this delegation, the Trust, on behalf of the Portfolios,
shall maintain full responsibility for ensuring that its AML Program is and
continues to be reasonably designed to ensure compliance with the Applicable AML
Laws. Xxxxxxx shall maintain policies, procedures and internal controls that are
consistent with the Trust's AML Program and the requirement that the Trust
employ procedures reasonably designed to achieve compliance with the Applicable
AML Laws and the Trust's AML Program.
(d) The Trust recognizes that the performance of the AML Service involves the
exercise of discretion, which in certain circumstances may result in
consequences to the Trust and its shareholders (such as in the case of the
reporting of suspicious activities and the freezing of shareholders). the Trust
authorizes Xxxxxxx to take such actions in the performance of the AML Services
as Xxxxxxx deems appropriate and consistent with the Trust's AML Program and
Applicable AML Laws.
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2. Representations and Warranties; Documents and Information; Access
(a) The Trust represents and warrants that (i) the Trust has adopted a written
AML Program, and has appointed an AML Compliance Officer for the Portfolios;
(ii) the AML Program and the designation of the AML Compliance Officer have been
approved by the Board of Trustees of the Trust (the "Board"); and (iii) the
delegation to Xxxxxxx of the AML Services has been approved by the Board.
(b) Xxxxxxx represents and warrants to the Trust that (1) the Trust has adopted
and will maintain a written program concerning the anti-money laundering
services it provides to its various clients; (2) its policies and procedures are
reasonably adequate for it to provide the AML Services and comply with its
obligations under this Amendment; (3) it shall conduct (or have a third party
conduct) an independent review of its AML Program at least annually and provide
the report of such independent review to the Trust; (4) it shall maintain an
ongoing training program with respect to its own personnel; and (5) it shall
maintain an AML compliance officer to administer the servicing of those aspects
of the Trust's AML Program that have been expressly delegated to Xxxxxxx.
(c) The Trust agrees to furnish Xxxxxxx with such information and documents as
may be reasonably requested by Xxxxxxx from time to time to provide the AML
Services. The Trust agrees to notify Xxxxxxx promptly about any known suspicious
activities related to open accounts.
(d) Xxxxxxx agrees to furnish the Trust its written program concerning
anti-money laundering services rendered by Xxxxxxx to its various clients.
Xxxxxxx agrees to notify the Trust of any change to its anti-money laundering
program that would materially impact the Trust's AML Program.
(e) Xxxxxxx shall grant reasonable access to each of the Trust, the AML
Compliance Officer, and regulators having jurisdiction over the Trust, to the
books and records maintained by Xxxxxxx and related to the AML Services, and
shall permit federal examiners to inspect Xxxxxxx for purposes of the Trust's
AML Program. Xxxxxxx shall make its relevant personnel available to meet or
speak with the Board concerning the AML Services at least annually or at such
other intervals as may be reasonably necessary or appropriate.
4. Expenses
In consideration of the performance of the foregoing duties, the Trust agrees to
pay Xxxxxxx for the reasonable administrative expense and out of pocket costs
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
(a) This Amendment supplements and amends the Agreement. The provisions set
forth in this Amendment supersede all prior negotiations, understandings and
agreement 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
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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) Section and 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.
THE ARBOR FUND
ON BEHALF OF THE PORTFOLIOS XXXXXXX BANK AND TRUST
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxx
------------------------------- ------------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxx
Title: VP Title: Executive Vice President
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SCHEDULE A
AML SERVICES
With respect to the beneficial ownership of, and transactions in, shares in the
Portfolios for which Xxxxxxx maintains the applicable shareholder information,
Xxxxxxx shall:
(a) Review and submit all shareholder financial and non-financial transactions
through the Office of Foreign Assets Control Database (and such other lists or
databases as may be required from time to time by applicable regulatory
authorities), including screening of all shareholder accounts upon changes to
such database.
(b) Screen all shareholder accounts at the request of Financial Crimes
Enforcement Network ("FinCEN") pursuant to Section 314(a) of the PATRIOT Act and
report any positive "hits" to FinCEN.
(c) Monitor shareholder accounts and identify and report suspicious activities
that are required to be so identified and reported, in each case consistent with
the Trust's and Xxxxxxx'x AML Programs.
(d) Place holds on transactions in shareholder accounts or freeze assets in
shareholder accounts, as provided in the Trust's and Xxxxxxx'x AML Programs and
in accordance with the Act and OFAC.
(e) If and to the extent required by applicable law, ensure that shareholder
accounts are not opened until shareholders have been properly identified, their
identifying information has been verified, and all reasonable and practicable
steps have been taken in accordance with applicable law to ensure that such
shareholder's funds are not derived from any illicit activity.
(f) Follow the Portfolios' policy, which may change from time to time, with
respect to the acceptance of cash equivalents, including 3rd party checks.
(g) Follow the Portfolios' policy on accounts held by non-US persons.
(h) Maintain all records or other documentation related to shareholder accounts
and transactions therein that are required to be prepared and maintained
pursuant to the Trust's and Xxxxxxx'x AML Programs, and make the same available
for inspection by (i) the AML Compliance Officer, (ii) any auditor of the
Trust's AML Program or related procedures, policies or controls that has been
designated by the Trust in writing, or (iii) regulatory or law enforcement
authorities, and otherwise make said records or other documents available at the
director of the AML Compliance Officer.
Note: In the event that Xxxxxxx detects suspicious activity or a "positive" hit
as a result of the foregoing procedures, which necessitates the filing by
Xxxxxxx of a suspicious activity report, or other similar report or notice to
FinCEN or to OFAC, then Xxxxxxx shall also immediately notify the AML Compliance
Officer, unless prohibited by applicable law.
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