EX-99.(10)(4)(A) 23 ex104a.htm BELAIR 10Q FILING AMENDMENT TO CUSTODY & TRANSFER AGENCY AGREEMENTS -- Converted by SECPublisher 3.1.0.1, created by BCL Technologies Inc., for SEC Filing

EXHIBIT 10(4)(a)

AMENDMENT TO

CUSTODY AND TRANSFER AGENCY AGREEMENTS

Each of the Custody and Transfer Agency Agreements dated as of the date listed on Appendix A (the “Agreement”) by and between Investors Bank & Trust Company (the “Bank”), a Massachusetts trust company, and the Funds listed on the attached Appendix A (each the “Fund”) are hereby amended as of the date hereof in the manner set forth below:

WHEREAS, the USA PATRIOT Act of 2001 and the regulations promulgated thereunder (collectively, the “USA PATRIOT Act”) imposes anti-money laundering requirements on financial institutions;

WHEREAS, both the Fund and the Bank have developed and implemented written anti-money laundering policies (“AML Programs”), which incorporate customer identification procedures (“CIP”) and Office of Foreign Asset Control (“OFAC”) compliance; designed to satisfy the requirements of the U.S. Department of the Treasury, U.S. Securities and Exchange Commission and the USA PATRIOT Act (the “Act”);

WHEREAS, each party desires to delegate to the other the performance of certain aspects of its AML Program, in accordance with applicable law or regulation, and each desires to accept such delegation;

NOW THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter contained, the parties hereby agree to amend the Agreement pursuant to the terms thereof by adding the following provisions:

1.    Duties:         
 
    1.1    Duties of the Fund. The Fund shall perform the following functions: 
 
        (a)    Notice. The Fund or its agent shall provide notice to the Fund’s 
        prospective account holders that information is being requested pursuant to 
        federal law. 
 
        (b)    Information Collection. The Fund or its agents shall obtain identifying 
        information from each of its customers (each a “CIP Customer”), under applicable 
        laws and regulations, which includes, at a minimum: (i) name, (ii) date of birth (if 
        applicable), (iii) address and (iv) taxpayer identification number or applicable 
        information for non-U.S. persons and equivalent information for entities The 
Fund shall provide the foregoing information promptly to the Bank.
 
        (c)    Identity Verification. The Fund or its agents shall be solely responsible 
        for verifying the CIP Customer identification for all investors in the Funds who 
        are introduced to the Bank and the Fund by the Fund’s agents (i.e. broker dealers) 

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    through appropriate documentary or non-documentary methods. To the extent the 
    Fund’s CIP requires documentary identity verification for any CIP Customer, 
    such as review of government-issued identification cards, the Fund or its agent 
    shall be solely responsible for obtaining and reviewing the appropriate 
    documentation. 
 
    (d)    Recordkeeping. The Fund shall collect or, if applicable, create, and retain 
    the required records documenting the performance of these functions in 
    accordance with, and for the periods required by, applicable law or regulation. 
 
1.2    Duties of the Bank. The Bank shall perform the following functions: 
 
    (a)    OFAC Compliance. The Bank shall screen Fund customers against lists of 
    known or suspected terrorists or terrorist organizations prepared by any federal 
    government agency and referred to the Bank in accordance with the Bank’s CIP 
    Program and all Federal government directives related to such lists. These lists 
    include, but are not limited to, those prepared by the OFAC of the U.S. 
    Department of the Treasury which administers and enforces economic and trade 
    sanctions against targeted foreign countries, terrorism sponsoring organizations 
    and international narcotics traffickers based on U.S. foreign policy and national 
    security goals. In the event that a new or existing CIP Customer matches a name 
    contained on one of the foregoing lists and the Bank cannot resolve such match in 
    accordance with the Bank’s CIP Program, the Bank shall not open such 
    customer’s account, shall freeze such customer’s assets and will immediately 
    inform the Fund’s AML Compliance Officer of the foregoing circumstances who 
    shall take such other action as may be required by applicable law or regulation. 
 
    (b)    Identity Verification for Transfer Customers. The Bank shall be 
    responsible for verifying the CIP Customer information only for those customers 
    who become Fund customers as a result of a direct transfer and not as a result of a 
    transfer initiated by the Fund agents (i.e. broker dealers) on the customer account. 
    A direct transfer results from an existing customer contacting the Bank or the 
    Fund directly. To the extent the Bank’s CIP requires documentary identity 
    verification for any CIP Customer, such as government-issued identification 
    cards, the Fund shall assist the Bank in obtaining the appropriate documentation. 
 
    (c)    Recordkeeping. The Bank will create and retain the required records 
    documenting the performance of the Delegated Functions in accordance with, and 
    for the periods required by, applicable law or regulation. 

2. Certifications. The Bank and the Fund shall certify to each other, on an annual basis, that each has performed the functions each has agreed to perform as set forth above.

2.1    Bank Certification. The Bank shall certify that: 
 
    (a)    it has established and implemented policies, procedures and internal 
    controls reasonably designed to prevent money laundering or the financing of 

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    terrorist activities in connection with the services it provides to the Funds, in order 
    to achieve compliance with the USA Patriot Act (the “Policies”) and this 
    agreement; 
 
    (b)    it has designated an individual or individuals responsible for implementing 
    and monitoring the Policies; 
 
    (c)    it has provided, and will continue to provide, ongoing training for the 
    appropriate personnel with respect to the Policies; 
 
    (d)    its Policies are functioning as intended, it has performed the specified 
    requirements of the Fund’s CIP as requested, and except as may have been 
    previously disclosed to the Fund’s AML Compliance Officer in writing, during 
    the period covered by the certification, it discovered no suspicious activity 
    reportable under applicable law or regulation with respect to the Fund and that 
    none of the Fund’s applicants or shareholders failed any of the procedures 
    enumerated in its Policies; 
 
    (e)    it provides for periodic testing of those Policies by its internal auditors and 
    will notify the Fund’s AML Compliance Officer in writing about the results of 
    any such testing that could be adverse to the Fund’s interests; and 
 
    (f)    (i) there have been no amendments to amendments to the Bank’s CIP 
    Program or OFAC compliance procedures that may materially affect the Fund or, 
    alternatively, (ii) that the Bank has materially amended the Bank’s CIP Program, 
    which amendment may affect the Fund. 
 
2.2    Fund Certification. The Fund shall certify on an annual basis that: 
 
    (a)    it has established and implemented policies, procedures and internal 
    controls reasonably designed to prevent money laundering or the financing of 
    terrorist activities in accordance with the USA Patriot Act (the “Policies”) 
    including verification of all investors in the Funds and this agreement; 
 
    (b)    it has designated an individual or individuals responsible for implementing 
    and monitoring the Policies; 
 
    (c)    it has provided, and will continue to provide, ongoing training for the 
    appropriate personnel with respect to the Policies; 
 
    (d)    it provides for periodic, but at minimum annual, independent testing of 
    those Policies; 

3. Consent to Examination

Each party understands and acknowledges that each remains responsible for ensuring its compliance with the USA PATRIOT Act and that the records each maintains for the other

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relating to their AML Program may be subject, from time to time, to examination and/or inspection by federal regulators, the Bank’s or the Fund’s auditors as part of the periodic testing of their AML Program. Each party hereby consents to such examination and/or inspection and agrees to cooperate with such examiners and auditors in connection with their review. For purposes of such examination and/or inspection, each will use its best efforts to make available during normal business hours, all required records and information concerning the functions each performs under this agreement for review by such examiners and auditors. Each party shall provide the other with notice of any pending or planned examinations as soon as practicable after the party to be examined is notified of such examination. Additionally, upon request, each party shall provide copies of their AML Program policies and procedures.

4. Limitation of Delegation

The Fund and the Bank acknowledge and agree that in accepting their delegations hereunder, they are agreeing to perform only those aspects of the other parties AML Program as specified in Section 1 above. The Fund and the Bank are not undertaking and shall not be responsible for any other aspect of a party’s AML Program or for a party’s overall compliance with the Act.

5.      Miscellaneous
 
  5.1      This Amendment applies solely to the matters discussed herein. In all other regards, the terms and provisions of the Agreement shall continue to apply with full force and effect.
 
  5.2      In the event that either party materially amends its CIP program, it shall promptly provide such amended CIP program to the party’s appointed AML Compliance Officer.
 
  5.3      Each party represents to the other that the execution and delivery of this Amendment has been duly authorized.
 
  5.4      This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute only one instrument.
 

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IN WITNESS WHEREOF, each of the parties has caused this Amendment to be executed in its name and behalf by its duly authorized representative as of March 29, 2005.

INVESTORS BANK & TRUST COMPANY

By:    /s/ Andrew Nesvet 

Name:    Andrew Nesvet 

Title:    Managing Director 


Each Fund listed on Appendix A
By its Manager or General Partner,
EATON VANCE MANAGEMENT

By:    /s/ Maureen A. Gemma 

Name:    Maureen A. Gemma 

Title:    Vice President 


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    APPENDIX A 
 
Fund    Agreement Date 

 
Belair Capital Fund LLC    10/28/97 
Belcrest Capital Fund LLC    8/14/98 
Belmar Capital Fund LLC    12/15/99 
Belport Capital Fund LLC    12/5/00 
Belrose Capital Fund LLC    12/5/01 

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