Exhibit (h)(16)
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 December ___, 2006, by
and between Aston Funds, f/k/a ABN AMRO Funds (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 April 1, 2000 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. Section [16] 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. Section 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.
2. FinCEN Requests Under USA PATRIOT Act Section 314(a). Section [16] 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 of accounts and
transactions 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. 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 match will be reviewed according to PFPC's established CIP
exception processing procedures. If the account match is confirmed
using these CIP exception processing procedures, 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, and in its discretion 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. Section [16] 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
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applicable, another financial institution involved in the transaction,
and each of their respective employees on a need-to-know basis. 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 [12] 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.
[FUND CLIENT]
By:
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Name:
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Title:
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PFPC INC.
By:
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Name:
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Title:
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