Exhibit (h) (2) (b)
AMENDMENT NO. 1 TO AMENDED AND RESTATED TRANSFER AGENCY
AND SERVICES AGREEMENT
This Amendment is made as of the 19th day of August, 2002, between Xxxxxx Xxxxxx
Select Fund, Inc., a Maryland corporation (the "Fund") and Xxxxxx Xxxxxx &
Company, Inc. ("Xxxxxx Xxxxxx"), a Tennessee corporation. The parties hereby
amend their Amended and Restated Transfer Agency and Services Agreement dated as
of August 21, 2000 ("Agreement"), as set forth below.
WHEREAS, the Bank Secrecy Act, as amended by the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act (together, the "BSA"), requires the Fund to develop and implement
an anti-money laundering program; and
WHEREAS, the Fund has adopted the anti-money laundering program ("AML Program")
set forth in Schedule 1 hereto, as it may be amended from time to time; and
WHEREAS, the regulations under the BSA permit a mutual fund to contractually
delegate the implementation of a fund's anti-money laundering program to a
service provider; pursuant to that authority, the Fund wishes to delegate the
implementation of certain aspects of its AML Program to Xxxxxx Xxxxxx; and
WHEREAS, Xxxxxx Xxxxxx is willing to perform such services on the terms and
conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing and the mutual promises set
forth below, the parties agree as follows:
1. EFFECTIVENESS OF AGREEMENT. This Agreement shall become effective
immediately as of the date first written above.
2. DELEGATION. The Fund hereby delegates to Xxxxxx Xxxxxx, and Xxxxxx Xxxxxx
hereby accepts, implementation of certain aspects of the Fund's AML
Program, as further set out in the AML Program, including provisions, as
defined therein, relating to: (i) Customer Identification Program and Risk
Assessment; (ii) Suspicious Activity Monitoring and Reporting; (iii)
Record Keeping; and (iv) Training of Xxxxxx Xxxxxx Personnel. Xxxxxx
Xxxxxx further agrees to cooperate with the Fund's Anti-Money Laundering
Compliance Officer with respect to Xxxxxx Xxxxxx'x performance of its
responsibilities under this Agreement.
3. REPRESENTATION AND WARRANTIES BY XXXXXX XXXXXX. Xxxxxx Xxxxxx hereby
represents and warrants that:
a. Xxxxxx Xxxxxx has received a copy of the Fund's AML Program and
undertakes to perform all delegated responsibilities thereunder;
b. Xxxxxx Xxxxxx has adopted and will maintain a written anti-money
laundering program that includes policies and procedures that enable
it to perform its responsibilities under this Agreement;
c. Xxxxxx Xxxxxx has provided a copy of its anti-money laundering
program to the Fund; and
d. Xxxxxx Xxxxxx will pre-clear any material amendment to its
anti-money laundering program with the Fund and will notify the Fund
promptly of all amendments to its program.
4. REPRESENTATION AND WARRANTIES BY THE FUND. The Fund hereby represents and
warrants that:
a. The Fund will promptly provide Xxxxxx Xxxxxx any amendment(s) to the
Fund's AML Program, which will be subject to the terms of this
Agreement upon delivery to Xxxxxx Xxxxxx.
5. REPORTS. Xxxxxx Xxxxxx will provide a copy of the results of any audits,
or of any exam carried out by federal examiners, with respect to its
anti-money laundering program to the Fund.
6. CONSENT TO EXAMINATION. Xxxxxx Xxxxxx hereby consents to: (i) provide to
federal examiners information and records relating to the Fund's AML
Program maintained by Xxxxxx Xxxxxx upon request by federal examiners or
the Fund; and (ii) the inspection of Xxxxxx Xxxxxx by federal examiners
for purposes of the Fund's AML Program.
7. WAIVER. No waiver of any provision of this Agreement shall be binding
unless in writing and executed by the party granting such waiver. Any
valid waiver of a provision set forth herein shall not constitute a waiver
of any other provision of this Agreement and shall not constitute a
permanent or future waiver of such provision.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
XXXXXX XXXXXX & COMPANY, INC. XXXXXX XXXXXX SELECT FUND, INC.
By /s/ Xxxxxxx X. Xxxxxxx By /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director Title: Secretary
