Exhibit (h)(11)
AMENDMENT No. 1 to the TRANSFER AGENCY AND SERVICE AGREEMENT
This AMENDMENT NO. 1 is made as of June 11, 2002 to that certain
TRANSFER AGENCY AND SERVICE AGREEMENT (together with the exhibits attached here
and thereto, this "Agreement"), dated October 2, 1989 by and between XXXXXXX
MUTUAL FUNDS, INC. (the "Company") and XXXXXXX SERVICE CORPORATION, a
Massachusetts corporation (the "Agent").
WHEREAS, the U.S. Congress has enacted the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, as may be amended from time to time, and all regulations
promulgated pursuant thereto (collectively, the "USA PATRIOT Act") and the Bank
Secrecy Act, as amended, and the regulations promulgated pursuant thereto
(collectively, the "BSA"), to require open-end mutual funds to develop
anti-money laundering compliance programs and procedures ("AML Program");
WHEREAS, the Company has no employees, and account openings and
dealings with shareholders are maintained by the Agent as they relate to the
Company pursuant to the Agreement;
WHEREAS, the Company has adopted an AML Program to comply with the USA
PATRIOT Act and the BSA which require agreements with certain third parties to
be amended; and
WHEREAS, the parties have agreed to amend the Agreement in accordance
with Article 10, Section 10.01 to comply with the Company's AML Program and the
USA PATRIOT Act and the BSA.
NOW, THEREFORE, in consideration of the mutual promises set forth and
for other good and valuable consideration, the parties hereby agree to amend the
Agreement as follows:
1. Article 1, Section 1.02(a)(x) is hereby replaced in its
entirety with the following:
(x) Maintain records of account for and advise the
Company and its Shareholders as to the foregoing,
create and maintain true and complete books and
records as required for the Company by the USA
PATRIOT Act and the BSA, and establish and implement
an Anti-Money Laundering Program, as defined in
Section 352 of the USA PATRIOT Act;
2. Article 6, Section 6.04 is hereby replaced in its entirety
with the following:
6.04. The Agent shall keep records relating to the services
to be performed hereunder, in the form and manner as
it may deem
advisable, provided all records required to be
created and maintained under the USA PATRIOT Act and
BSA shall be in the form and manner prescribed by
U.S. Department of Treasury's Financial Crimes
Enforcement Network ("FinCEN") and the Securities and
Exchange Commission ("SEC"), as the case may be. To
the extent required by Section 31 of the Investment
Company Act of 1940, as amended, (the "Act") and the
Rules thereunder, the Agent agrees that all such
records prepared or maintained by the Agent relating
to the services to be performed by the Agent
hereunder and those records that the Company and the
Agent agree from time to time to be the records of
the Company are the property of the Company and will
be preserved, maintained and made available in
accordance with the USA PATRIOT Act, the BSA, the
Acts, and all rules and regulations promulgated
thereunder Section and Rules, and will be surrendered
promptly to the Company on and in accordance with its
request. Records surrendered hereunder shall be in
machine readable form, except to the extent that the
Agent has maintained such a record only in paper
form.
3. Article 6, Section 6.06 is hereby replaced in its entirety
with the following:
6.06. In case of any requests or demands for the inspection
of the Shareholders records of the Company the Agent
will endeavor to notify the Company and to secure
instructions from an authorized officer of the
Company as to such inspection. The Agent reserves the
right, however, to exhibit the Shareholders records
to any person whenever it is reasonably advised by
its counsel that it may be held liable for the
failure to exhibit the Shareholders records to such
person. Notwithstanding the foregoing, all books and
records shall be made available, for inspection and
copying, to the FinCEN and the SEC as may be
requested pursuant to the USA PATRIOT Act and the
BSA.
4. The following is hereby inserted as a new Section 6.09 to
Article 6:
6.09. The Agent agrees to comply with the provisions of the
USA PATRIOT Act and the BSA, as they relate to the
Company. In addition to the usual and ordinary
services specifically set forth in Article 1, the
Agent shall perform the services necessary to ensure
that the Company is in compliance with the USA
PATRIOT Act and the BSA, including but not limited to
implementing policies and procedures, maintaining
books and records and responding to requests for
information pursuant to the USA PATRIOT Act and the
BSA.
-2-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and year first above written.
[SEAL] XXXXXXX MUTUAL FUNDS, INC.
By: /s/Xxxx Xxxxxxxx
----------------------------
Xxxx Xxxxxxxx
Vice President
[SEAL] XXXXXXX SERVICE CORPORATION
By: /s/Xxxxxxx X. Xxxxxx
---------------------------
Xxxxxxx X. Xxxxxx
President
-3-
