AGENCY AGREEMENT
THIS AGREEMENT made as of the 1(st) day of April, 2006, by and
between the ADVISORS' INNER CIRCLE FUND II, a business trust existing under the
laws of the Commonwealth of Massachusetts, having its principal place of
business at Xxx Xxxxxxx Xxxxxx Xxxx, Xxxx, Xxxxxxxxxxxx 00000 (the "Trust") on
behalf of each separate series of the Trust (each a "Fund") and each separate
series of certain Funds (each a "Portfolio"), and DST SYSTEMS, INC., a
corporation existing under the laws of the State of Delaware, having its
principal place of business at 000 Xxxx 00(xx) Xxxxxx, 0(xx) Xxxxx, Xxxxxx
Xxxx, Xxxxxxxx 00000 ("DST"):
WITNESSETH:
WHEREAS, the Trust desires to appoint DST as Transfer Agent and
Dividend Disbursing Agent, and DST desires to accept such appointment; NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. DOCUMENTS TO BE FILED WITH APPOINTMENT.
In connection with the appointment of DST as Transfer Agent and Dividend
Disbursing
Agent for the Trust, there will be filed with DST the following documents:
A A certified copy of the resolutions of the Board of Trustees of the
Trust appointing DST as Transfer Agent and Dividend Disbursing Agent,
approving the form of this Agreement, and designating certain persons
to give written instructions and requests on behalf of the Trust;
B A certified copy of the Declaration of Trust and all amendments
thereto;
C A certified copy of the Bylaws of the Trust;
D Copies of Registration Statements and amendments thereto, filed with
the Securities and Exchange Commission.
E. Specimens of the signatures of the officers of the Trust authorized
to sign written instructions and requests;
F. An opinion of counsel for the Trust with respect to:
(1) The Trust's organization and existence under the laws of its
state of organization,
4/10/2007
(2) The status of all units of beneficial interest of the Trust
("Shares") covered by the appointment under the Securities Act of
1933, as amended, and any other applicable federal or state
statute, and
(3) That all issued Shares are, and all unissued Shares will be,
when issued, validly issued, fully paid and nonassessable.
2. CERTAIN REPRESENTATIONS AND WARRANTIES OF DST.
DST represents and warrants to the Trust that:
A It is a corporation duly organized and existing and in good standing
under the laws of Delaware.
B It is duly qualified to carry on its business in the State of
Missouri.
C It is empowered under applicable laws and by its Articles of
Incorporation and Bylaws to enter into and perform the services
contemplated in this Agreement.
D It is registered as a transfer agent to the extent required under the
Securities Exchange Act of 1934 (the "1934 Act").
E All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
F It has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
G It is in compliance with Securities and Exchange Commission ("SEC")
regulations and is not subject to restrictions under Rule 17Ad-3, as
amended, adopted under the 1934 Act.
H Copies of DST's Rule 17Ad-13 reports will be provided to the Trust
annually as and to the extent required under Rule 17Ad-13 under the
1934 Act.
I Its fidelity bonding and minimum capital meet the transfer agency
requirements of the New York Stock Exchange.
3. CERTAIN REPRESENTATIONS AND WARRANTIES OF THE TRUST.
The Trust represents and warrants to DST that:
A. It is a business trust duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
B It is an open-end diversified management investment company
registered under the Investment Company Act of 1940, as amended.
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C A registration statement under the Securities Act of 1933 has been
filed and will be effective with respect to all Shares of the Trust
being offered for sale.
D All requisite steps have been and will continue to be taken to
register the Trust's Shares for sale in all applicable states and such
registration will be effective at all times Shares are offered for
sale in such state.
E The Trust is empowered under applicable laws and by its charter and
Bylaws to enter into and perform this Agreement.
4. SCOPE OF APPOINTMENT.
A Subject to the conditions set forth in this Agreement, the Trust
hereby appoints DST as Transfer Agent and Dividend Disbursing Agent.
B DST hereby accepts such appointment and agrees that it will act as
the Trust's Transfer Agent and Dividend Disbursing Agent. DST agrees
that it will also act as agent in connection with each Fund's periodic
withdrawal payment accounts and other open accounts or similar plans
for shareholders, if any.
C The Trust agrees to use its reasonable efforts to deliver to DST in
Kansas City, Missouri, as soon as they are available, all of its
shareholder account records.
D DST, utilizing TA2000(TM) , DST's computerized data processing system
for securityholder accounting (the "TA2000 System"), will perform the
following services as transfer and dividend disbursing agent for the
Trust, and as agent of the Trust for shareholder accounts thereof, in
a timely manner: (i) issuing (including countersigning), transferring
and canceling share certificates; (ii) maintaining on the TA2000
System shareholder accounts; (iii) accepting and effectuating the
registration and maintenance of accounts through Networking and the
purchase, redemption, transfer and exchange of Shares in such accounts
through Fund/SERV (Networking and Fund/SERV being programs operated by
the National Securities Clearing Corporation ("NSCC") on behalf of
NSCC's participants, including the Funds), in accordance with
instructions transmitted to and received by DST by transmission from
NSCC on behalf of broker-dealers and banks which have been established
by, or in accordance with the instructions of, an Authorized Person,
as hereinafter defined, on the Dealer File maintained by DST; (iv)
issuing instructions to the Funds' banks for the settlement of
transactions between the Funds and NSCC (acting on behalf of its
broker-dealer and bank participants); (v) providing account
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and transaction information from each affected Fund's records on
TA2000 in accordance with NSCC's Networking and Fund/SERV rules for
those broker-dealers; (vi) maintaining shareholder accounts on TA2000
through Networking; (vii) providing transaction journals; (viii)
preparing shareholder meeting lists for use in connection with special
meetings and certifying a copy of such list, the first such list to be
at no additional charge, anyone thereafter to be charged for; (ix)
mailing shareholder reports and prospectuses; (x) withholding, as
required by federal law, taxes on shareholder accounts, preparing,
filing and mailing U.S. Treasury Department Forms 1099, 1042, and
1042S and performing and paying backup withholding as required for all
shareholders; (xi) disbursing income dividends and capital gains
distributions to shareholders and recording reinvestment of dividends
and distributions in Shares of a Fund; (xii) preparing and mailing
confirmation forms to shareholders and dealers, as instructed, for all
purchases and liquidations of Shares of a Fund and other confirmable
transactions in shareholders' accounts and recording reinvestment of
dividend and distributions in Shares of the Funds; (xiii) providing or
making available on-line daily and monthly reports as provided by the
TA2000 System and as requested by a Fund or its management company;
(xiv) maintaining those records necessary to carry out DST's duties
hereunder, including all information reasonably required by a Fund to
account for all transactions in each Fund's Shares; (xv) calculating
the appropriate sales charge with respect to each purchase of Fund
Shares as set forth in each Fund's prospectus as of January 1, 2005
and as amended thereafter PROVIDED (A) the TA2000 System as then
constituted supports such amended charges and (B) only after thirty
(30) days prior written notice of and instruction as to such change to
the charges is given to DST and (C) subject to additional fees
therefore in the change to the charges increases DST's cost to perform
the obligations set forth in this subsection (xv), determining the
portion of each sales charge payable to the dealer participating in a
sale in accordance with schedules and instructions delivered to DST by
the Trust's principal underwriter or distributor (hereinafter
"principal underwriter") or an Authorized Person from time to time,
disbursing dealer commissions collected to such dealers, determining
the portion of each sales charge payable to such principal underwriter
and disbursing such commissions to the principal underwriter; (xvi)
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receiving correspondence pertaining to any former, existing or new
shareholder account, processing such correspondence for proper
recordkeeping, and responding promptly to shareholder correspondence;
mailing to dealers confirmations of wire order trades; mailing copies
of shareholder statements to shareholders and registered
representatives of dealers in accordance with the instructions of an
Authorized Person; (xvii) processing, generally on the date of
receipt, purchases or redemptions or instructions to settle any mail
or wire order purchases or redemptions received in proper order as set
forth in the prospectus, rejecting promptly any requests not received
in proper order (as defined by an Authorized Person or the Procedures
as hereinafter defined), and causing exchanges of Shares to be
executed in accordance with the instructions of Authorized Persons,
the applicable prospectus and the general exchange privilege
applicable; (xviii) providing to the person designated by an
Authorized Person the daily Blue Sky reports generated by the Blue Sky
module of TA2000 with respect to purchases of Shares of the Trust on
TA2000; and (xix) providing to the Funds escheatment reports as
requested by an Authorized Person with respect to the status of
accounts and outstanding checks on TA2000. In addition, DST shall be
responsible for assessing and collecting redemption fees as required
pursuant to each applicable Fund's prospectus and for complying with
relevant policies and procedures in connection with each applicable
Fund's market timing policy.
E. At the request of an Authorized Person, DST shall use reasonable
efforts to provide the services set forth in Section 4.D. in
connection with transactions (i) on behalf of retirement plans and
participants in retirement plans and transactions ordered by brokers
as part of a "no transaction fee" program ("NTF"), the processing of
which transactions require DST to use methods and procedures other
than those usually employed by DST to perform shareholder servicing
agent services, (ii) involving the provision of information to DST
after the commencement of the nightly processing cycle of the TA2000
System or (iii) which require more manual intervention by DST, either
in the entry of data or in the modification or amendment of reports
generated by the TA2000 System than is usually required by
non-retirement plan, non-NTF and pre-nightly transactions, (the
"Exception Services").
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F. DST shall use reasonable efforts to provide, reasonably promptly
under the circumstances, the same services with respect to any new,
additional functions or features or any changes or improvements to
existing functions or features as provided for in each Fund's
instructions, prospectus or application as amended from time to time,
for each Fund provided (i) DST is advised in advance by the Fund of
any changes therein and (ii) the TA2000 System and the mode of
operations utilized by DST as then constituted supports such
additional functions and features. If any addition to, improvement of
or change in the features and functions currently provided by the
TA2000 System or the operations as requested by a Fund requires an
enhancement or modification to the TA2000 System or to operations as
presently conducted by DST, DST shall not be liable therefore until
such modification or enhancement is installed on the TA2000 System or
new mode of operation is instituted. If any new, additional function
or feature or change or improvement to existing functions or features
or new service or mode of operation measurably increases DST's cost of
performing the services required hereunder at the current level of
service, DST shall advise the Trust of the amount of such increase and
if the Trust elects to utilize such function, feature or service, DST
shall be entitled to increase its fees by the amount of the increase
in costs. In no event shall DST be responsible for or liable to
provide any additional function, feature, improvement or change in
method of operation until it has consented thereto in writing.
G. The Trust shall be entitled to add new Funds or Portfolios or classes
thereof to the TA2000 System upon at least thirty (30) days' prior
written notice to DST provided that the requirements of the new series
are generally consistent with services then being provided by DST
under this Agreement. Rates or charges for additional series shall be
as set forth in Exhibit A, as hereinafter defined, for the remainder
of the contract term except as such series use functions, features or
characteristics for which DST has imposed an additional charge as part
of its standard pricing schedule. In the latter event, rates and
charges shall be in accordance with DST's then-standard pricing
schedule.
5. LIMIT OF AUTHORITY.
Unless otherwise expressly limited by the resolution of appointment or by
subsequent action by the Trust, the appointment of DST as Transfer Agent
will be construed to cover the full
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amount of authorized Shares of the class or classes for which DST is
appointed as the same will, from time to time, be constituted, and any
subsequent increases in such authorized amount.
In case of such increase, the Trust will file with DST:
A. If the appointment of DST was theretofore expressly limited, a
certified copy of a resolution of the Board of Trustees of the Trust
increasing the authority of DST;
B A certified copy of the amendment to the Trust's Declaration of Trust
authorizing the increase of Shares;
C A certified copy of the order or consent of each governmental or
regulatory authority required by law to consent to the issuance of the
increased Shares, and an opinion of counsel that the order or consent
of no other governmental or regulatory authority is required;
D Opinion of counsel for the Trust stating:
(1) The status of the additional Shares of the Trust under the
Securities Act of 1933, as amended, and any other applicable
federal or state statute; and
(2) That the additional Shares are, or when issued will be, validly
issued, fully paid and nonassessable.
6. COMPENSATION AND EXPENSES.
A In consideration for its services hereunder as Transfer Agent and
Dividend Disbursing Agent, the Trust will pay to DST from time to time
a reasonable compensation for all services rendered as Agent, and
also, all its reasonable billable expenses, charges, counsel fees, and
other disbursements ("Compensation and Expenses") incurred in
connection with the agency. Such compensation is set forth in a
separate schedule to be agreed to by the Trust and DST, a copy of
which is attached hereto as Exhibit A. If the Trust has not paid such
Compensation and Expenses to DST within a reasonable time, DST may
charge against any monies held under this Agreement, the amount of any
Compensation and/or Expenses for which it shall be entitled to
reimbursement under this Agreement.
B The Trust also agrees promptly to reimburse DST for all reasonable
billable expenses or disbursements incurred by DST in connection with
the performance of services under this Agreement including, but not
limited to, expenses for postage, express delivery services, freight
charges, envelopes, checks, drafts, forms
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(continuous or otherwise), specially requested reports and statements,
telephone calls, telegraphs, stationery supplies, counsel fees,
outside printing and mailing firms (including DST Output, LLC),
magnetic tapes, reels or cartridges (if sent to the Trust or to a
third party at the Trust's request) and magnetic tape handling
charges, off-site record storage, media for storage of records (e.g.,
microfilm, microfiche, optical platters, computer tapes), computer
equipment installed at the Trust's request at the Trust's or a third
party's premises, telecommunications equipment,
telephone/telecommunication lines between a Fund and its agents, on
one hand, and DST on the other, proxy soliciting, processing and/or
tabulating costs, second-site backup computer facility, transmission
of statement data for remote printing or processing, National
Securities Clearing Corporation ("NSCC") transaction fees and any
other expenses incurred by DST on behalf of the Fund listed on Exhibit
A or, if not listed, then incurred with the prior consent or at the
request of the Fund to the extent any of the foregoing are paid by
DST. Reimbursable expenses, including but not limited to those listed
on Exhibit A, represent pass through charges where DST has limited, if
any, ability to negotiate the expense from the provider, but may
include reasonable allocations to reimburse expenses incurred by DST
to lessen the amount of an expense to the Fund or to add value to
third party services (the "Added Value Expenses"). Regarding any
future Added Value Expenses DST shall (i) provide written notice to
the Fund each time DST invoices a new category of Added Value
Expenses, identifying the amount of and the justification (the
additional expense incurred by DST to lower the overall expense or to
add value to the service being invoiced) for the markup, and (ii)
obtain the Fund's consent to such markup, which consent shall not be
unreasonably delayed or withheld. The Trust agrees to pay postage
expenses at least one day in advance if so requested. In addition, any
other expenses incurred by DST at the request or with the consent of
the Trust will be promptly reimbursed by the Trust.
C Amounts due hereunder shall be due and paid on or before the
thirtieth (30(th) ) business day after receipt of the statement
therefor by the Trust (the "Due Date"). The Trust is aware that its
failure to pay all amounts in a timely fashion so that they will be
received by DST on or before the Due Date will give rise to costs to
DST not contemplated by this Agreement, including but not limited to
carrying, processing
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and accounting charges. Accordingly, subject to Section 6.D. hereof,
in the event that any amounts due hereunder are not received by DST by
the Due Date, the Trust shall pay a late charge equal to the lesser of
the maximum amount permitted by applicable law or the product of one
and one-half percent (1.5%) per month times the amount overdue times
the number of months from the Due Date up to and including the day on
which payment is received by DST. The parties hereby agree that such
late charge represents a fair and reasonable computation of the costs
incurred by reason of late payment or payment of amounts not properly
due. Acceptance of such late charge shall in no event constitute a
waiver of the Trust's or DST's default or prevent the non-defaulting
party from exercising any other rights and remedies available to it.
D. In the event that any charges are disputed, the Trust shall, on or
before the Due Date, pay all undisputed amounts due hereunder and
notify DST in writing of any disputed charges for billable expenses
which it is disputing in good faith. Payment for such disputed charges
shall be due on or before the close of the fifth (5(th)) business day
after the day on which DST provides to the Trust documentation which
an objective observer would agree reasonably supports the disputed
charges (the "Revised Due Date"). Late charges shall not begin to
accrue as to charges disputed in good faith until the first business
day after the Revised Due Date.
E. The fees and charges set forth on Exhibit A shall increase or may be
increased as follows:
(1) On the first day of each new term, in accordance with the "Fee
Increases" provision in Exhibit A;
(2) DST shall be entitled to reasonably increase the fees and
charges as set forth on Exhibit A upon at least ninety (90) days
prior written notice, if changes in existing laws, rules or
regulations: (i) require substantial system modifications or (ii)
materially increase cost of performance hereunder;
(3) Upon at least ninety (90) days' prior notice, DST may impose a
reasonable charge for additional features of TA2000 used by the
Funds which features are not consistent with the Funds'
processing requirements as of the effective date of this
Agreement; and
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(4) In the event DST, at a Fund's request or direction, performs
Exception Services, DST shall be entitled to impose a reasonable
increase in the fees and charges for such Exception Services from
those set forth on Exhibit A to the extent such Exception
Services increase DST's cost of performance.
If DST notifies the Trust of an increase in fees or charges pursuant to
subparagraph (2) of this Section 6.E., the parties shall confer, diligently
and in good faith and agree upon a new fee that fully covers the Fund's
aliquot portion of the cost of developing the new software to comply with
regulatory charges and the increased cost of operation and the cost of
increased operations incurred in connection with performing any new or
enhanced functions required by or used in the business of the Trust.
If DST notifies the Trust of an increase in fees or charges under
subparagraphs (3) or (4) of this Section 6.E., the parties shall confer,
diligently and in good faith, and agree up on a new fee to cover such new fund
feature.
7. OPERATION OF DST SYSTEM.
In connection with the performance of its services under this Agreement,
DST is responsible for such items as:
A. That entries in DST's records, and in the Trust's records on the
TA2000 System created by DST, reflect the orders, instructions, and
other information received by DST from the Trust, the Trust's
distributor, any Fund's manager or the Trust's principal underwriter,
each Fund's investment adviser, each Fund's sponsor, each Fund's
custodian, or the Trust's administrator (each an "Authorized Person"),
broker-dealers or shareholders;
B. That shareholder lists, shareholder account verifications,
confirmations and other shareholder account information to be produced
from its records or data be available and accurately reflect the data
in the Trust's records on the TA2000 System;
C. The accurate and timely issuance of dividend and distribution checks
in accordance with instructions received from the Trust and the data
in the Trust's records on the TA2000 System;
D. That redemption transactions and payments be effected timely, under
normal circumstances on the day of receipt, and accurately in
accordance with redemption instructions received by DST from
Authorized Persons, broker-dealers or shareholders and the data in the
Trust's records on the TA2000 System;
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E. The deposit daily in the Trust's appropriate special bank account of
all checks and payments received by DST from NSCC, broker-dealers or
shareholders for investment in Shares;
F Notwithstanding anything herein to the contrary, with respect to "as
of adjustments, DST will not automatically assume one hundred percent
(100%) responsibility for losses resulting from "as ofs" due to
clerical errors or misinterpretations of shareholder instructions, but
DST shall in good faith discuss with the Trust DST's accepting
liability for all or a portion of the cost of an "as of on a
case-by-case basis and shall, to the extent it is mutually agreed, DST
shall accept financial responsibility for that portion of a particular
situation resulting in a financial loss to a Fund where such loss is
"material", as hereinafter defined, and, under the particular facts at
issue or to the extent that such loss is a direct result of DST's
material breach of its obligations under this Agreement. A loss is
"material" for purposes of this Section 7.F. when it results in a
pricing error on a given day which is (i) greater than a negligible
amount per shareholder, (ii) equals or exceeds one ($.01) full cent
per share times the number of Shares outstanding or (iii) equals or
exceeds the product of one-half of one percent (1/2%) times an
affected Fund's Net Asset Value per Share times the number of Shares
outstanding (or, in case of (ii) or (iii), such other amounts as may
be adopted by applicable accounting or regulatory authorities from
time to time). When the parties have mutually agreed that DST shall be
responsible to contribute to the settlement of a loss, DST's
responsibility will commence with that portion of the loss over $0.01
per share calculated on the basis of the total value of all Shares
owned by the affected portfolio (i.e., on the basis of the value of
the Shares of the total portfolio, including all classes of that
portfolio, not just those of the affected class);
G. The requiring of proper forms of instructions, signatures and
signature guarantees and any necessary documents supporting the
opening of shareholder accounts, transfers, redemptions and other
shareholder account transactions, all in conformance with DST's
present procedures as set forth in its Legal Manual, Third Party Check
Procedures, Checkwriting Draft Procedures, and Signature Guarantee
Procedures (collectively the "Procedures") with such changes or
deviations therefrom as may be from time to time required or approved
by the Trust for a Fund,
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its investment adviser or principal underwriter, or its or DST's
counsel and the rejection of orders or instructions not in good order
in accordance with the applicable prospectus or the Procedures;
H The maintenance of customary records in connection with its agency,
and particularly those records required to be maintained pursuant to
subparagraph (2)(iv) of paragraph (b) of Rule 31a-1 under the
Investment Company Act of 1940, if any; and
I. The maintenance of a current, duplicate set of each Fund's essential
records at a secure separate location, in a form available and usable
forthwith in the event of any breakdown or disaster disrupting its
main operation.
8. INDEMNIFICATION.
A DST, including DST's employees, agents or affiliated companies to
whom DST has subcontracted the performance of any of DST's obligations
under this Agreement (each a "DST Agent") whether or not such DST
Agent is known to the Fund, shall at all times use reasonable care,
due diligence and act in good faith in performing its duties under
this Agreement. No person or entity shall be a DST Agent unless DST
shall control, or have the ability to control, such agent's
performance of DST's obligations under this Agreement. DST shall be
solely responsible for acts, errors or omissions resulting in material
harm to a Fund committed by its DST Agents. DST shall provide its
services as Transfer Agent in accordance with Section 17A of the
Securities Exchange Act of 1934, and the rules and regulations
thereunder. In the absence of bad faith, willful misconduct, knowing
violations of applicable law pertaining to the manner in which
transfer agency services are to be performed by DST (excluding any
violations arising directly or indirectly out of the actions or
omissions to act of third parties unaffiliated with DST), reckless
disregard of the performance of its duties, or negligence on its part,
DST shall not be liable for any action taken, suffered, or omitted by
it or for any error of judgment made by it in the performance of its
duties under this Agreement. For those activities or actions
delineated in the Procedures, DST shall be presumed to have used
reasonable care, due diligence and acted in good faith if it has acted
in accordance with the Procedures, copies of which have been provided
to the Trust and reviewed and
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approved by the Trust's counsel, as amended from time to time with
approval of counsel, or for any deviation therefrom approved by the
Trust or DST counsel.
B. DST shall not be responsible for, and the Trust shall indemnify and
hold DST harmless from and against, any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liability which
may be asserted against DST or for which DST may be held to be liable
(the "Adverse Consequences"), arising out of or attributable to:
(1) All actions or omissions to act of DST required to be taken or
omitted by DST pursuant to this Agreement, provided that DST has
acted in good faith and with due diligence and reasonable care
and further provided DST has not materially breached any
representation or warranties or material obligation under this
Agreement in connection with such action or omission;
(2) The Trust's refusal or failure to comply with the terms of this
Agreement, the Trust's negligence or willful misconduct, or the
breach of any representation or warranty of the Trust hereunder;
(3) The good faith reliance on, or the carrying out of, any written
or oral instructions or requests of persons designated by the
Trust in writing (see Exhibit B) from time to time as authorized
to give instructions on its behalf or representatives of an
Authorized Person or DST's good faith reliance on, or use of,
information, data, records and documents received from, or which
have been prepared and/or maintained by the Trust, its investment
advisor, its sponsor or its principal underwriter;
(4) Defaults by dealers or shareowners with respect to payment for
share orders previously entered provided DST has not materially
contributed to the occurrence of the default;
(5) The offer or sale of the Funds' Shares in violation of any
requirement under federal securities laws or regulations or the
securities laws or regulations of any state or in violation of
any stop order or other determination or ruling by any federal
agency or state with respect to the offer or sale of such Shares
in such state (unless such violation results from DST's failure
to comply with written instructions of the Trust or of any
officer or other authorized person
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of the Trust that no offers or sales be permitted to remain in
the Trust's securityholder records in or to residents of such
state);
(6) The Trust's errors and mistakes in the use of the TA2000 System,
the data center, computer and related equipment used to access
the TA2000 System (the "DST Facilities"), and control procedures
relating thereto in the verification of output and in the remote
input of data;
(7) Errors, inaccuracies, and omissions in, or errors, inaccuracies
or omissions of DST arising out of or resulting from such errors,
inaccuracies and omissions in, a Fund's or the Trust's records,
shareholder and other records, delivered to DST hereunder by or
on behalf of the Trust or a Fund or delivered by the prior
agent(s) of the Trust or a Fund;
(8) Actions or omissions to act by the Trust or agents designated by
the Trust with respect to duties assumed thereby as provided for
in Section 21 hereof;
(9) Solely if the Trust or a Fund elects to have DST perform
Exception Services, DST's performance of Exception Services
except where DST acted or omitted to act in bad faith, with
reckless disregard of its obligations or with Gross Negligence,
as hereinafter defined; and
(10) Any inaccuracies in dates in any Fund's shareholder information
or history as converted, or any (i) difficulties or inability of
DST or any third party to manipulate or process date data, or
(ii) lack of functionality (including any errors resulting from
the "windowing" (currently 1950 to 2049) of client's historical
records or non-Year 2000 complaint data provided to DST by third
parties) which, in case of (i) or (ii) above, arises out of or
results from the failure of a Fund's records to contain date data
feeds in an eight digit, full century format, or any other such
Year 2000 complaint format for data feeds specified from time to
time by DST.
C. Except where DST is entitled to indemnification under Section 8.B.
hereof and with respect to "as ofs" to the extent set forth in Section
7.F., DST shall indemnify and hold the Trust harmless from and against
any and all Adverse Consequences arising out of DST's failure to
comply with the terms of this Agreement or arising out of or
attributable to DST's lack of good faith, negligence or willful
misconduct or breach of any representation or warranty of DST
hereunder; provided, however, that for any
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reason other than DST's lack of good faith, willful misconduct or with
Gross Negligence, as hereinafter defined, DST's cumulative liability
during any term of this Agreement with respect to, arising from or
arising in connection with this Agreement, or from all services
provided or omitted to be provided under this Agreement, whether in
contract, or in tort, or otherwise, is limited to, and shall not
exceed, the aggregate amounts paid hereunder by the Trust to DST as
fees and charges solely on behalf of or with respect to the Services
provided hereunder to the Fund or Funds seeking indemnification
against Adverse Consequences, but not including reimbursable expenses,
during the twelve (12) months (or the approximate equivalent of twelve
months' fees in cases where less than twelve months having been
elapsed before the act giving rise to DST's liability) immediately
preceding the event giving rise to DST's liability. For purposes of
this Agreement, the term "Gross Negligence" shall mean an act or
omission by a Party which amounts to indifference to a present legal
duty and utter forgetfulness of its legal obligations so far as the
other Party is concerned. For purposes of determining whether a
Party's act or omission is Grossly Negligent, the trier of fact will
look solely to the behavior inherent in or giving rise to the act or
omission itself without giving any consideration to the amount or
degree of harm caused by the act or omission.
D. IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL EITHER PARTY TO THIS
AGREEMENT BE LIABLE TO ANYONE, INCLUDING, WITHOUT LIMITATION TO THE
OTHER PARTY, FOR CONSEQUENTIAL DAMAGES FOR ANY ACT OR FAILURE TO ACT
UNDER ANY PROVISION OF THIS AGREEMENT EVEN IF ADVISED OF THE
POSSIBILITY THEREOF. In this regard, each party acknowledges that
where the other party is found liable to a third party in an action
where the third party wins a judgment that includes an award of
consequential damages against such other party, all damages paid by
the other party to such third party is direct damages to the other
party and not "consequential damages" as used in this Section.
E. Promptly after receipt by an indemnified person of notice of the
commencement of any action, such indemnified person will, if a claim
in respect thereto is to be made against an indemnifying party
hereunder, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying
party will
15
not relieve an indemnifying party from any liability that it may have
to any indemnified person for contribution or otherwise under the
indemnity agreement contained herein except to the extent it is
prejudiced as a proximate result of such failure to timely notify. In
case any such action is brought against any indemnified person and
such indemnified person seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to
participate in, and, to the extent that it may wish, assume the
defense thereof (in its own name or in the name and on behalf of any
indemnified party or both with counsel reasonably satisfactory to such
indemnified person); provided, however, if the defendants in any such
action include both the indemnified person and an indemnifying party
and the indemnified person shall have reasonably concluded that there
may be a conflict between the positions of the indemnified person and
an indemnifying party in conducting the defense of any such action or
that there may be legal defenses available to it and/or other
indemnified persons which are inconsistent with those available to an
indemnifying party, the indemnified person or indemnified persons
shall have the right to select one separate counsel (in addition to
local counsel) to assume such legal defense and to otherwise
participate in the defense of such action on behalf of such
indemnified person or indemnified persons at such indemnified party's
sole expense. Upon receipt of notice from an indemnifying party to
such indemnified person of its election so to assume the defense of
such action and approval by the indemnified person of counsel, which
approval shall not be unreasonably withheld (and any disapproval shall
be accompanied by a written statement of the reasons therefor), the
indemnifying party will not be liable to such indemnified person
hereunder for any legal or other expenses subsequently incurred by
such indemnified person in connection with the defense thereof. An
indemnifying party will not settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
persons are actual or potential parties to such claim, action, suit or
proceeding) unless such settlement, compromise or consent includes an
unconditional release of each indemnified person from all liability
arising out of such claim, action, suit or proceeding. An indemnified
party will not, without the
16
prior written consent of the indemnifying party settle or compromise
or consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder. If it does
so, it waives its right to indemnification therefor.
9. CERTAIN COVENANTS OF DST AND THE TRUST.
A All requisite steps will be taken by the Trust from time to time when
and as necessary to register the Trust's Shares for sale in all states
in which the Trust's Shares shall at the time be offered for sale and
require registration. If at any time the Trust will receive notice of
any stop order or other proceeding in any such state affecting such
registration or the sale of the Trust's Shares, or of any stop order
or other proceeding under the federal securities laws affecting the
sale of the Trust's Shares, the Trust will give prompt notice thereof
to DST.
B. DST hereby agrees to perform such transfer agency functions as are
set forth in Section 4.D. above and establish and maintain facilities
and procedures reasonably acceptable to the Trust for safekeeping of
check forms, and facsimile signature imprinting devices, if any; and
for the preparation or use, and for keeping account of, such
certificates, forms and devices, and to carry such insurance as it
considers adequate and reasonably available.
C. To the extent required by Section 31 of the Investment Company Act of
1940 as amended and Rules thereunder, DST agrees that all records
maintained by DST relating to the services to be performed by DST
under this Agreement are the property of the Trust and will be
preserved and will be surrendered promptly to the Trust on request.
D. DST agrees to furnish the Trust's annual reports of its financial
condition, consisting of a balance sheet, earnings statement and any
other financial information as reasonably requested by the Trust and a
copy of the SAS 70 Report issued by its certified public accountants
pursuant to Rule l7Ad-13 under the 1934 Act as filed with SEC. The
annual financial statements will be certified by DST's certified
public accountants and the posting of a current copy thereof on DST's
website shall be deemed to be delivery to the Trust.
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E DST represents and agrees that it will use its reasonable efforts to
keep current on the trends of the investment company industry relating
to shareholder services and will use its reasonable efforts to
continue to modernize and improve.
F DST will permit the Trust and its authorized representatives (subject
to execution of DST's standard confidentiality and non-use agreement)
to make periodic inspections of its operations as such would involve
the Trust at reasonable times during business hours. DST will permit
duly authorized federal examiners to make periodic inspections of its
operations as such would involve the Trust to obtain, INTER ALIA,
information and records relating to DST's performance of its
Compliance + Program obligations and to inspect DST's operations for
purposes of the Compliance + Program. Any costs imposed by such
examiners in connection with such examination (other than fines or
other penalties) shall be paid by the Trust. G. DST shall use its
reasonable efforts to provide in Kansas City at the Trust's expense
two (2) man weeks (the equivalent of 80 hours) of training for the
Trust's personnel in connection with use and operation of the TA2000
System. All travel and reimbursable expenses incurred by the Trust's
personnel in connection with and during training at DST's Facility
shall be borne by the Trust. At the Trust's option and expense, DST
also agrees to use its reasonable efforts to provide an additional two
(2) man weeks of training at the Trust's facility for the Trust's
personnel in connection with the conversion to the TA2000 System.
Reasonable travel, per diem and reimbursable expenses incurred by DST
personnel in connection with and during training at the Trust's
facility or in connection with the conversion shall be borne by the
Trust.
H The Trust shall obtain an executed Letter of Intent from each
prospective new client of the Trust prior to DST's being requested to
provide any conversion or setup services (including planning services)
guaranteeing DST's recovery of the One Time Set-Up Fee in accordance
with the terms set forth on Exhibit A even if such new prospect does
not actually convert onto or does not commence operation on TA2000. In
event of any request to DST by the Trust or its agents, such request
constitutes the Trust's representation, warranty and covenant that the
foregoing provision is in full force and effect and that DST will be
paid the foregoing One Time Set-Up Fee if due under the terms of
Exhibit A.
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10. RECAPITALIZATION OR READJUSTMENT.
In case of any recapitalization, readjustment or other change in the
capital structure of the Trust requiring acceptance of Trust Share
certificates, DST will register Shares in book entry format in exchange
for, or in transfer of, the outstanding shares or certificates in the old
form, upon receiving:
A Written instructions from an officer of the Trust;
B. Certified copy of the amendment to the Declaration of Trust or other
document effecting the change; Certified copy of the order or consent
of each governmental or regulatory authority, required by law to the
issuance of the Shares in the new form, and an opinion of counsel that
the order or consent of no other government or regulatory authority is
required;
D RESERVED;
E. Opinion of counsel for the Trust stating:
(1) The status of the newly issued book entry Shares of the Trust
under the Securities Act of 1933, as amended and any other
applicable federal or state statute; and
(2) That the newly issued book entry Shares are, and all unissued
Shares will be, when issued, validly issued, fully paid and
nonassessable.
11. DEATH, RESIGNATION OR REMOVAL OF SIGNING OFFICER.
The Trust will file promptly with DST written notice of any change in the
officers authorized to provide written instructions or requests, together
with two signature cards bearing the specimen signature of each newly
authorized officer.
12. FUTURE AMENDMENTS OF CHARTER AND BYLAWS.
The Trust will promptly file with DST copies of all material amendments to
its Articles of Incorporation or Bylaws made after the date of this
Agreement.
13. INSTRUCTIONS, OPINION OF COUNSEL AND SIGNATURES.
At any time DST may apply to any person authorized by the Trust to give
instructions to DST, and may with the approval of a Trust officer consult
with legal counsel for the Trust, or DST's own legal counsel and at the
expense of the Trust, provided DST's counsel fees are reasonable, with
respect to any matter arising in connection with the agency and it will not
be liable for any action taken or omitted by it in good faith in reliance
upon such
19
instructions or upon the opinion of such counsel. DST will be protected in
acting upon any paper or document reasonably believed by it to be genuine
and to have been signed by the proper person or persons and will not be
held to have notice of any change of authority of y person, until receipt
of written notice thereof from the Trust. It will also be protected in re
cognizing Share certificates which it reasonably believes to bear the
proper manual or facsimile signatures of the officers of the Trust, and the
proper countersignature of any former Transfer Agent or Registrar, or of a
co-Transfer Agent or co-Registrar.
14. FORCE MAJEURE AND DISASTER RECOVERY PLANS.
A DST shall not be responsible or liable for its failure or delay in
performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable
control, including, without limitation: any interruption, loss or
malfunction of any utility, transportation, computer (hardware or
software, provided such equipment has been reasonably maintained) or
communication service; inability to obtain labor, material, equipment
or transportation, or a delay in mails; governmental or exchange
action, statute, ordinance, rulings, regulations or direction; war,
strike, riot, emergency, civil disturbance, terrorism, vandalism,
explosions, labor disputes, freezes, floods, fires, tornados, acts of
God or public enemy, revolutions, or insurrection; or any other cause,
contingency, circumstance or delay not subject to DST's reasonable
control which prevents or hinders DST's performance hereunder.
B. DST currently maintains an agreement with a third party whereby DST
is to be permitted to use on a "shared use" basis a "hot site" (the
"Recovery Facility") maintained by such party in event of a disaster
rendering the DST Facilities inoperable. DST has developed and is
continually revising a business contingency plan (the "Business
Contingency Plan") detailing which, how, when, and by whom data
maintained by DST at the DST Facilities will be installed and operated
at the Recovery Facility. Provided the Trust is paying its pro rata
portion of the charge therefor, DST would, in event of a disaster
rendering the DST Facilities inoperable, use reasonable efforts to
convert the TA2000 System containing the designated the Trust data to
the computers at the Recovery Facility in accordance with the then
current Business Contingency Plan.
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C DST also currently maintains, separate from the area in which the
operations which provides the services to the Trust hereunder are
located, a Crisis Management Center consisting of phones, computers
and the other equipment necessary to operate a full service transfer
agency business in the event one of its operations areas is rendered
inoperable. The transfer of operations to other operating areas or to
the Crisis Management Center is also covered in DST's Business
Contingency Plan.
15. CERTIFICATION OF DOCUMENTS.
The required copy of the Trust's Declaration of Trust and copies of all
amendments thereto be certified by the Secretary of the Commonwealth (or
other appropriate official) of Massachusetts, and if such Declaration of
Trust and amendments are required by law to be also filed with a county,
city or other officer of official body, a certificate of such filing will
appear on the certified copy submitted to DST. A copy of the order or
consent of each governmental or regulatory authority required by law to the
issuance of the Shares will be certified by the Secretary or Clerk of such
governmental or regulatory authority, under proper seal of such authority.
The copy of the Bylaws and copies of all amendments thereto, and copies of
resolutions of the Board of Trustees of the Trust, will be certified by the
Secretary or an Assistant Secretary of the Trust.
16. RECORDS.
DST will maintain customary records in connection with its agency, and
particularly will maintain those records required to be maintained pursuant
to subparagraph (2) (iv) of paragraph (b) of Rule 31a-1 under the
Investment Company Act of 1940, if any.
17. DISPOSITION OF BOOKS, RECORDS AND CANCELED CERTIFICATES.
DST may send periodically to the Trust, or to where designated by the
Secretary or an Assistant Secretary of the Trust, all books, documents, and
all records no longer deemed needed for current purposes and Share
certificates which have been canceled in transfer or in exchange, upon the
understanding that such books, documents, records, and Share certificates,
if any will be maintained by the Trust under and in accordance with the
requirements of Section 17Ad-7 adopted under the Securities Exchange Act of
1934, including by way of example and not limitation Section 17Ad-7(g)
thereof. Such materials will not be destroyed by the Trust without the
consent of DST (which consent will not be unreasonably withheld), but will
be safely stored for possible future reference.
18. PROVISIONS RELATING TO DST AS TRANSFER AGENT.
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A. DST will make original issues of Shares (and, provided the Trust and
DST mutually agree to issuance of certificates, certificates) upon
written request of an officer of the Trust and upon being furnished
with a certified copy of a resolution of the Board of Directors
authorizing such original issue, an opinion of counsel as outlined in
subparagraphs 1.D. and G. of this Agreement, any documents required by
Sections 5. or 10. of this Agreement, and necessary funds for the
payment of any original issue tax as required in the next Section.
B. Before making any original issue of Shares or certificates, in the
event the Trust and DST agree upon the issuance of certificated
Shares, the Trust will furnish DST with sufficient funds to pay all
required taxes on the original issue of the Shares, if any. The Trust
will furnish DST such evidence as may be required by DST to show the
actual value of the Shares. If no taxes are payable DST will be
furnished with an opinion of outside counsel to that effect.
C. Shares will be transferred and, provided the Trust and DST mutually
agree to issuance of certificates, new certificates issued in
transfer, or Shares accepted for redemption and funds remitted
therefor, or book entry transfer be effected, upon surrender of the
old certificates in form or receipt by DST of instructions deemed by
DST properly endorsed for transfer or redemption accompanied by such
documents as DST may deem necessary to evidence the authority of the
person making the transfer or redemption. DST reserves the right to
refuse to transfer or redeem Shares until it is satisfied that the
endorsement or signature on the certificate or any other document is
valid and genuine, and for that purpose it may require a guaranty of
signature in accordance with the Signature Guarantee Procedures. DST
also reserves the right to refuse to transfer or redeem Shares until
it is satisfied that the requested transfer or redemption is legally
authorized, and it will incur no liability for the refusal in good
faith to make transfers or redemptions which, in its judgment, are
improper or unauthorized. DST may, in effecting transfers or
redemptions, rely upon the Procedures, Simplification Acts, UNIFORM
COMMERCIAL CODE or other statutes which protect it and the Trust in
not requiring complete fiduciary documentation. In cases in which DST
is not directed or otherwise required to maintain the consolidated
records of shareholder's accounts, DST will not be liable for any loss
which may arise by reason of not having such records.
22
D. When mail is used for delivery of Share certificates, DST will
forward Share certificates in "nonnegotiable" form by first class or
registered mail and Share certificates in "negotiable" form by
registered mail, all such mail deliveries to be covered while in
transit to the addressee by insurance arranged for by DST.
E. DST will issue and mail subscription warrants, certificates
representing Share dividends, exchanges or split ups, or act as
Conversion Agent upon receiving written instructions from any officer
of the Trust and such other documents as DST deems necessary.
F. Provided the Trust and DST mutually agree to issuance of
certificates, DST will issue, transfer, and split up certificates and
will issue certificates of Shares representing full Shares upon
surrender of scrip certificates aggregating one full share or more
when presented to DST for that purpose upon receiving written
instructions from an officer of the Trust and such other documents as
DST may deem necessary.
G Provided the Trust and DST mutually agree to issuance of
certificates, DST may issue new certificates in place of certificates
represented to have been lost, destroyed, stolen or otherwise
wrongfully taken upon receiving instructions from the Trust and
indemnity satisfactory to DST and the Trust, and may issue new
certificates in exchange for, and upon surrender of, mutilated
certificates. Such instructions from the Trust will be in such form as
will be approved by the Board of Trustees of the Trust and will be in
accordance with the provisions of law and the bylaws of the Trust
governing such matter.
H. DST will supply a shareholder's list to the Trust for one special
meeting per year at no additional charge upon receiving a request from
an officer of the Trust. It will also, at the expense of the Trust,
supply lists at such other times as may be requested by an officer of
the Trust.
I. Upon receipt of written instructions of an officer of the Trust, DST will,
at the expense of the Trust, address and mail notices to shareholders.
J. In case of any request or demand for the inspection of the Share
books of the Trust or any other books in the possession of DST, DST
will endeavor to notify the Trust and to secure instructions as to
permitting or refusing such inspection. DST reserves the right,
however, to exhibit the Share books or other books to any person
23
in case it is advised by its counsel that it may be held responsible
for the failure to exhibit the Share books or other books to such
person.
K (1) DST shall assist the Trust to fulfill the Trust's
responsibilities under certain provisions of USA PATRIOT Act,
Xxxxxxxx-Xxxxx Act, Title V of Gramm Xxxxx Xxxxxx Act, Securities
Act of 1933, Securities and Exchange Act of 1934, and Investment
Company Act of 1940, including, INTER ALIA, Rule 38a-1, by
complying with Compliance +TM, a compliance program that focuses
on certain business processes that represent key activities of
the transfer agent/service provider function (the "Compliance +
Program"), a copy of which has hitherto been made available to
Trust. These business processes are anti-money laundering,
certificate processing, correspondence processing,
fingerprinting, lost shareholder processing, reconciliation and
control, transaction processing, customer identification,
transfer agent administration and safeguarding fund assets and
securities. DST reserves the right to make changes thereto as
experience suggests alternative and better ways to perform the
affected function. DST shall provide you with written notice of
any such changes.
(2) DST shall perform the procedures set forth in the Compliance +
Program, as amended by DST from time to time, which pertain to
DST's performance of those transfer agency services in accordance
with the terms and conditions set forth in this Agreement, (ii)
implement and maintain internal controls and procedures
reasonably necessary to insure that our employees act in
accordance with the Compliance + Program, and (iii) provide you
with written notice of any material changes made to the Program
as attached hereto.
(3) Notwithstanding the foregoing, DST's obligations shall be solely
as are set forth in this Section and in the Compliance + Program,
as amended, and any of obligations under the enumerated Acts and
Regulations that DST has not agreed to perform on your behalf
under the Compliance + Program or under this Agreement shall
remain the sole obligation of the Trust.
19. PROVISIONS RELATING TO DIVIDEND DISBURSING AND PAYING AGENCY.
24
A. DST will, at the expense of the Trust, provide a special form of
check containing the imprint of any device or other matter desired by
the Trust. Said checks must, however, be of a form and size convenient
for use by DST.
B If the Trust desires to include additional printed matter, financial
statements, etc., with the dividend checks, the same will be furnished
DST within a reasonable time prior to the date of mailing of the
dividend checks, at the expense of the Trust.
C If the Trust desires its distributions mailed in any special form of
envelopes, sufficient supply of the same will be furnished to DST but
the size and form of said envelopes will be subject to the approval of
DST. If stamped envelopes are used, they must be furnished by the
Trust; or if postage stamps are to be affixed to the envelopes, the
stamps or the cash necessary for such stamps must be furnished by the
Trust.
D DST, acting as agent for the Trust, is hereby authorized (1) to
establish in the name of, and to maintain on behalf of, the Trust, on
the usual terms and conditions prevalent in the industry, including
limits or caps based on fees paid over some period of time on the
maximum liability of such Banks, as hereinafter defined, one or more
deposit accounts at a nationally or regionally known banking
institution (the "Bank") into which DST shall deposit the funds DST
receives for payment of dividends, distributions, purchases of Trust
Shares, redemptions of Trust Shares, commissions, corporate
re-organizations (including recapitalizations or liquidations) or any
other disbursements made by DST on behalf of the Trust provided for in
this Agreement, (2) to draw checks upon such accounts, to issue orders
or instructions to the Bank for the payment out of such accounts as
necessary or appropriate to accomplish the purposes for which such
funds were provided to DST, and (3) to establish, to implement and to
transact Trust business through Automated Clearinghouse ("ACH"), Draft
Processing, Wire Transfer and any other banking relationships,
arrangements and agreements with such Bank as are necessary or
appropriate to fulfill DST's obligations under this Agreement. DST,
acting as agent for the Trust, is also hereby authorized to execute on
behalf and in the name of the Trust, on the usual terms and conditions
prevalent in the industry, including limits or caps based on fees paid
over some period of time on the maximum liability of such Banks,
agreements with banks for ACH, wire transfer, draft processing
services, as
25
well as any other services which are necessary or appropriate for DST
to utilize to accomplish the purposes of this Agreement. In each of
the foregoing situations the Trust shall be liable on such agreements
with the Bank as if it itself had executed the agreement. DST shall
not be liable for any Adverse Consequences arising out of or resulting
from errors or omissions of the Bank provided, however, that DST shall
have acted in good faith, with due diligence and without negligence.
E. DST is authorized and directed to stop payment of checks theretofore
issued hereunder, but not presented for payment, when the payees
thereof allege either that they have not received the checks or that
such checks have been mislaid, lost, stolen, destroyed or through no
fault of theirs, are otherwise beyond their control, and cannot be
produced by them for presentation and collection, and, to issue and
deliver duplicate checks in replacement thereof.
20. ASSUMPTION OF DUTIES BY THE TRUST OR AGENTS DESIGNATED BY THE TRUST.
A The Trust or its designated agents other than DST may assume certain
duties and responsibilities of DST or those services of Transfer Agent
and Dividend Disbursing Agent as those terms are referred to in
Section 4.D. of this Agreement including but not limited to answering
and responding to telephone inquiries from shareholders and brokers,
accepting shareholder and broker instructions (either or both oral and
written) and transmitting orders based on such instructions to DST,
preparing and mailing confirmations, obtaining certified TIN numbers,
classifying the status of shareholders and shareholder accounts under
applicable tax law, establishing shareholder accounts on the TA2000
System and assigning social codes and Taxpayer Identification Number
codes thereof, and disbursing monies of the Trust, said assumption to
be embodied in writing to be signed by both parties.
B. To the extent the Trust or its agent or affiliate assumes such duties
and responsibilities, DST shall be relieved from all responsibility
and liability therefor and is hereby indemnified and held harmless
against any liability therefrom and in the same manner and degree as
provided for in Section 8 hereof
C. Initially the Trust or its designees shall be responsible for
answering and responding to phone calls from shareholders and
broker-dealers.
21. TERMINATION OF AGREEMENT.
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A This Agreement shall be in effect for an initial term of five (5)
years from the date set forth at the beginning of this Agreement. If
neither party provides the other party with notice of termination at
least six (6) months' prior to the end of the then current term, this
Agreement shall automatically extend for the longer of additional,
successive five (5) year terms or for the period set forth in any new
mutually agreed to Fee Schedule as the period during which such Fee
Schedule shall be effective, each such successive five year term or
period set forth in any new Fee Schedule, as applicable, being a new
"term" of this Agreement, upon the expiration of any term hereof
unless terminated as hereinafter provided. Either party may terminate
this Agreement in the following manner and under the following
circumstances:
(i) WITH RESPECT TO A TERMINATION FOR BREACH UNDER SECTION 21.B. OF
THIS AGREEMENT: upon such date as is specified in a written notice
given by the terminating party in the event of a material breach of
this Agreement by the other party, provided the terminating party (A)
gives the breaching party such notice of termination within forty-five
days after the terminating party becomes aware of the occurrence of
such material breach and (B) has notified the other party of such
material breach at least forty-five (45) days prior to the specified
date of termination. The breaching party shall have forty-five (45)
days after receipt of the notice of termination to cure the breach or,
if the breach is not capable of remedy within forty-five (45) days, to
commence actions, which if appropriately pursued would result in the
curing of such breach and to thereafter appropriately pursue such
actions. Where the material breach is not remedied or an appropriate
remedy is not undertaken and pursued as previously set forth, DST will
be due fees from the Trust at the regular rates as set forth in the
then applicable Fee Schedule for an additional three (3) month period.
At the end of such three (3) month period, or such other time as
mutually agreed to in writing by the parties hereto, this Agreement
shall terminate and the Trust's data shall be deconverted from TA2000
to the new recordkeeping and processing system chosen by the Trust. If
the material breach is remedied or an appropriate remedy is not
undertaken and pursued as previously set forth within such forty-five
(45) day cure period, the Agreement shall continue for the remainder
of the then current Term and any future Terms.
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(ii) WITH RESPECT TO A FULL TERMINATION OF THIS AGREEMENT BY EITHER
PARTY AS TO ALL FUNDS AND PORTFOLIOS OF THE TRUST, AS OF THE LAST DAY
OF THE THEN CURRENT TERM: This Agreement may be terminated as
aforesaid by either party giving to the other party at least six (6)
months' written notice prior to the expiration of the then current
Term, provided, however, that the effective date of any termination
shall not occur during the period from December 15 through March 30 of
any year to avoid adversely impacting year end. In event of a
termination under this subsection, no termination fee shall be owed by
the terminating party to the other party.
(iii) WITH RESPECT TO A PARTIAL TERMINATION OF THIS AGREEMENT BY THE
TRUST, THAT IS A TERMINATION (A) WITH RESPECT TO ALL FUNDS AND
PORTFOLIOS OF SUCH FUNDS (EACH A CUSIP) MAINTAINED BY ONE OR MORE FUND
COMPLEXES/MANAGEMENT COMPANIES, (B) WHERE OTHER FUND
COMPLEXES/MANAGEMENT COMPANIES WILL REMAIN ACTIVE ON TA2000 UNDER THE
TRUST AND THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT FOR
THOSE OTHER FUND COMPLEXES/MANAGEMENT COMPANIES WHO REMAIN ACTIVE ON
TA2000, (C) REGARDLESS OF WHETHER SUCH TERMINATION IS A RESULT OF THE
SALE, MERGER, ACQUISITION BY ANOTHER FUND, TRANSFER OF ACCOUNTS OR
ACCOUNT BALANCES ETC. OF ALL SUCH TERMINATING FUNDS AND PORTFOLIOS OR
THEIR FUND COMPLEXES/MANAGEMENT COMPANIES: this Agreement may be
terminated and deconversion occur upon six (6) months' notice to DST
with respect to such terminating Funds or Portfolios, provided
however, that the effective date of such partial termination and any
deconversion shall not occur during the period from December 15
through March 30 of any year to avoid adversely impacting year end. In
the event of a termination by a Deconverting Fund or Portfolio under
this section, DST may charge, and the Trust shall pay or shall cause
each affected fund complex/management company to pay, prior to or
contemporaneously with the Deconversion and as liquidated damages and
not as a penalty for such early termination, WITH RESPECT TO EACH FUND
COMPLEX/MANAGEMENT COMPANY WHOSE FUND(S) OR PORTFOLIO(S) ARE
DECONVERTING, the GREATER of (Y) the aggregate fees (exclusive of
reimbursements of out-of-pocket expenses, paid under the Agreement
during the twelve (12) full calendar months immediately preceding the
month in which DST receives the notice of termination or (Z) $50,000
for each fund complex/management company whose Fund(s) or Portfolio(s)
are deconverting from TA2000.
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(iv) WITH RESPECT TO A FULL TERMINATION OF THIS AGREEMENT BY THE
TRUST, THAT IS A TERMINATION (A) WITH RESPECT TO ALL FUNDS AND
PORTFOLIOS OF SUCH FUNDS (EACH A CUSIP) OF THE TRUST WHOSE RECORDS ARE
XXXXXXXXXX XX XX0000, AND (B) REGARDLESS OF WHETHER SUCH TERMINATION
IS A RESULT OF THE SALE, MERGER, ACQUISITION BY ANOTHER FUND, TRANSFER
OF ACCOUNTS OR ACCOUNT BALANCES ETC. OF ALL SUCH TERMINATING FUNDS AND
PORTFOLIOS OR THEIR FUND COMPLEXES/MANAGEMENT COMPANIES: a termination
under this subsection shall require six (6) months' notice to DST with
respect to such termination and all deconversions, provided however,
that the effective date of any such deconversion shall not occur
during the period from December 15 through March 30 of any year to
avoid adversely impacting year end. In the event of a termination by a
Deconverting Fund or Portfolio under this section, DST may charge, and
the Trust shall pay or shall cause each affected fund
complex/management company to pay, prior to or contemporaneously with
the Deconversion and as liquidated damages and not as a penalty for
such early termination, WITH RESPECT TO EACH FUND COMPLEX/MANAGEMENT
COMPANY WHOSE FUND(S) OR PORTFOLIO(S) ARE DECONVERTING, the GREATER of
(Y) the aggregate fees (exclusive of reimbursements of out-of-pocket
expenses) incurred by each fund complex/management company with
respect a to all the Funds and Portfolios of the Funds of such fund
complex/management company under the Agreement during the twelve (12)
full calendar months immediately preceding the month in which DST
receives the notice of termination or (Z) $50,000 for each fund
complex/management company whose Fund(s) or Portfolio(s) are
deconverting from TA2000.
(vi) WITH RESPECT TO A PARTIAL TERMINATION OF THIS AGREEMENT BY THE
TRUST, THAT IS A TERMINATION (A) WITH RESPECT TO SOME BUT NOT ALL
FUNDS AND PORTFOLIOS OF SUCH FUNDS (EACH A CUSIP) INSIDE OF A FUND
COMPLEX/MANAGEMENT COMPANY, (B) WHERE OTHER FUNDS OF SUCH FUND
COMPLEX/MANAGEMENT COMPANY WILL REMAIN ACTIVE ON TA2000 UNDER THE
TRUST AND THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT FOR
THOSE OTHER FUND COMPLEXES/MANAGEMENT COMPANIES WHO REMAIN ACTIVE ON
TA2000, AND (C) REGARDLESS OF WHETHER SUCH TERMINATION IS A RESULT OF
THE SALE, MERGER, ACQUISITION BY ANOTHER FUND, TRANSFER OF ACCOUNTS OR
ACCOUNT BALANCES ETC. OF ALL SUCH TERMINATING FUNDS AND PORTFOLIOS:
this Agreement may be terminated and
29
deconversion occur upon six (6) months' notice to DST with respect to
such terminating Fund(s) or Portfolio(s), provided however, that the
effective date of such termination and any deconversion shall not
occur during the period from December 15 through March 30 of any year
to avoid adversely impacting year end. In the event of a termination
by a Deconverting Fund or Portfolio under this section, DST may
charge, and the Trust shall pay or shall cause each affected fund
complex/management company to pay, the Closed CUSIP Charge set forth
on the Fee Schedule attached hereto as Exhibit A.
B Each party, in addition to any other rights and remedies, shall have
the right to terminate this Agreement forthwith upon the occurrence at
any time of any of the following events with respect to the other
party:
(1) The bankruptcy of the other party or its assigns or the
appointment of a receiver for the other party or its assigns; or
(2) Failure by the other party or its assigns to perform its duties
in accordance with the Agreement, which failure materially
adversely affects the business operations of the first party and
which failure continues for thirty (30) days after receipt of
written notice from the first party.
C. In the event of the full termination of this Agreement, the Trust
will promptly pay DST all amounts due to DST under this Agreement and
DST will use its reasonable efforts, in accordance with acceptable
industry standards, to transfer the records of the Trust to the
designated successor transfer agent (or a place designated by the
Trust in case of a liquidating termination) within a reasonable time
period, to provide reasonable assistance to the Fund and its
designated successor transfer agent, and to provide other information
relating to its services provided hereunder (subject to the recompense
of DST for such assistance at its standard rates and fees for
personnel then in effect at that time); provided, however, as used
herein "reasonable assistance" and "other information" shall not
include assisting any new service or system provider to modify, alter,
enhance, or improve its system or to improve, enhance, or alter its
current system, or to provide any new, functionality or to require DST
to disclose any DST Confidential Information, as hereinafter defined,
or any information which is otherwise confidential to DST.
30
D. If, prior to converting from the TA2000 System, a Fund or Portfolio
thereof is unable to obtain a commitment from the new transfer agent
that the new transfer agent will perform year end reporting (tax or
otherwise) for the entire year and mail and file all reports,
including by way of example and not limitation, reports or returns of
Form 1099, 5498,m 945, 1042 and 1042S, annual account valuations for
retirement accounts and year end statements for all accounts and any
other reports required to be made by state governments or the federal
government or regulatory agencies (the "Returns") (i) DST shall
perform year end reporting as instructed by the Fund for the portion
of the year DST served as transfer agent and (ii) DST shall be paid
therefore a monthly per CUSIP fee (in addition to any applicable
Closed CUSIP Fee) through the end of the last month during which the
last Return or form is filed (at its standard rate and fees for
personnel then in effect at that time). The Fund will cause the new
transfer agent to timely advise DST of all changes to the shareholder
records effecting such reporting by DST (including but not limited to
all account maintenance and any "as of processing) until all DST
reporting obligations cease; and DST shall have no further obligations
to the Fund, and the Trust hereby indemnifies, or shall cause the Fund
to indemnify, DST and holds, or shall cause the Fund to hold, DST
harmless against any Adverse Consequences arising out of or resulting
from the failure of the new transfer agent to timely and properly
advise DST as required by this Agreement or which could have been
avoided if the new transfer agent had timely and properly advised DST
thereof or which occur after the Trust or the Fund ceases to pay DST
to maintain the Fund data on the TA2000 System and DST purges the data
of the Fund from the TA2000 System.
E. In the event of a termination by a Fund or Portfolio which is
liquidating and distributing the proceeds thereof to such shareholders
and thereafter closing, such Fund or Portfolio shall provide DST at
least three (3) months prior written notice of such liquidation,
distribution and closing. In such event, DST may charge reasonable
fees as set forth in the then existing Fee Schedule and reasonable
fees for account maintenance and processing and for all expenses
incurred on the terminated Liquidating Fund's, Portfolio's or Class'
behalf, for the time period required to complete the liquidation
and/or maintain the Liquidating Fund, Portfolio or Class on DST's
TA2000 System for the provision of services,
31
including services in connection with Internal Revenue Service
reporting or other required regulatory reporting. All such fees shall
be reviewable by the Trust for reasonableness and shall be paid
monthly by the Trust until the liquidation is complete and the
liquidating Fund or Portfolio is purged from the TA2000 System and
DST's services are no longer being utilized.
22. CONFIDENTIALITY.
A. DST agrees that, except as otherwise required by law, DST will keep
confidential all records of and information in its possession relating
to the Fund or its shareholders or shareholder accounts, including
other information that relates to the business of the Trust, including
but not limited to, Fund securities holdings, trading strategies or
merger, sale or other reorganization plans and will not disclose the
same to any person except at the request or with the consent of the
Trust. For purposes of this provision, the Trust is a disclosing party
with respect to information that is provided to DST in confidence and
to which the Trust has taken reasonable steps to prevent unrestricted
disclosure (a "Disclosing Party") and other information to which it,
as a Disclosing Party, has made reasonable efforts to maintain its
secrecy.
B. The Trust agrees, except as otherwise required by law, to keep
confidential all financial statements and other financial records
received from DST, the terms and provisions of this Agreement, all
accountant's reports relating to DST, and all manuals, systems and
other technical information and data, not publicly disclosed, relating
to DST's operations and programs furnished to it by DST pursuant to
this Agreement and will not disclose the same to any person except at
the request or with the consent of DST. For purposes of this
provision, DST is a disclosing party with respect to information that
is provided in confidence to the Trust and to which DST has taken
reasonable steps to prevent unrestricted disclosure (a "Disclosing
Party") and other information to which it, as a Disclosing Party, has
made reasonable efforts to maintain its secrecy.
C. (1) The Trust acknowledges that DST has proprietary rights in and to
the TA2000 System used to perform services hereunder including,
but not limited to the maintenance of shareholder accounts and
records, processing of related information and generation of
output, including, without limitation any changes or
modifications of the TA2000 System and any other DST
32
programs, data bases, supporting documentation, or procedures
(collectively "DST Confidential Information") which the Fund's
access to the TA2000 System or computer hardware or software may
permit the Fund or its employees or agents to become aware of or
to access and that the DST Confidential Information constitutes
confidential material and trade secrets of DST. The Fund agrees
to maintain the confidentiality of the DST Confidential
Information. For purposes of this provision, the Trust is a
receiving party with regards to DST Confidential Information it
accepts pursuant to the terms and conditions contained herein
("Receiving Party").
(2) DST acknowledges that the Trust owns all of the data supplied by
or on behalf of the Trust to DST, including without limitation to
Trust shareholder records and information. The Trust has
proprietary rights to all such data, records and reports
containing such data (collectively "Trust Confidential
Information") and all records containing such data will be
transferred in accordance with termination provisions of this
Agreement. DST agrees to maintain the confidentiality of Trust
Confidential Information. For purposes of this provision, DST is
a receiving party with regards to Trust Confidential Information
it accepts pursuant to the terms and conditions contained herein
("Receiving Party").
(3) Each party to this Agreement acknowledges that any unauthorized
use, misuse, disclosure or taking of the other party's
Confidential Information which is confidential as provided by
law, or which is a trade secret or other information that relates
to the business and products of the Disclosing Party with respect
to which the Disclosing Party has taken reasonable steps to
prevent unrestricted disclosure, residing or existing internal or
external to a computer, computer system, or computer network, or
the knowing and unauthorized accessing or causing to be accessed
of any computer, computer system, or computer network, may be
subject to civil liabilities and criminal penalties under
applicable state law. Each party to this Agreement will advise
all of its employees and agents who have access to any of the
other party's Confidential Information or, in the case of DST, to
any computer
equipment capable of accessing DST or DST hardware or software of
the foregoing.
(4) Each party to this Agreement acknowledges that disclosure of a
Disclosing Party's Confidential Information may give rise to an
irreparable injury to such Disclosing Party inadequately
compensable in damages. Accordingly, a Disclosing Party may seek
(without the posting of any bond or other security) injunctive
relief against the breach of the foregoing undertaking of
confidentiality and nondisclosure, in addition to any other legal
remedies which may be available, and each Party consents to the
obtaining of such injunctive relief. All of the undertakings and
obligations relating to confidentiality and nondisclosure,
whether contained in this Section or elsewhere in this Agreement
shall survive the termination or expiration of this Agreement for
a period of ten (10) years.
(5) Confidential Information shall not include any information that:
Is now or hereafter becomes available to the public without a
breach by the Receiving Party of the terms of this Agreement, but
only to the extent the Confidential Information becomes available
to the public; or Was known to and documented in writing in the
possession of the Receiving Party before its disclosure
hereunder; or Becomes available to the Receiving Party without
restrictions on its use or further disclosure; or
Is independently developed by the Receiving Party after Receiving
Party has provided clear and convincing evidence of such
independent development; or Is disclosed pursuant to judicial
action, provided Recipient shall give at least 10 days written
notice to Disclosing Party of the request for disclosure in a
judicial action and no suitable protective order, or equivalent
remedy is available. This information is no longer Confidential
Information only to the extent disclosed by the judicial action
and subject to the restrictions ordered by the court.
If the Receiving Party believes any of the above exceptions apply
to the Confidential Information of the Disclosing Party, the
Receiving Party shall provide the Disclosing Party with at least
20 days written notice of Receiving Party's intent to disclose
the Confidential Information to a third party prior to such
disclosure
23. CHANGES AND MODIFICATIONS.
A . During the term of this Agreement DST will use on behalf of the
Fund without additional cost all modifications, enhancements, or
changes which DST may make to the TA2000 System in the normal course
of its business and which are applicable to functions and features
offered by the Fund, unless substantially all DST clients are charged
separately for such modifications, enhancements or changes, including,
without limitation, substantial system revisions or modifications
necessitated by changes in existing laws, rules or regulations. The
Fund agrees to pay DST promptly for modifications and improvements
that are charged for separately at the rate provided for in DST's
standard pricing schedule which shall be identical for substantially
all clients, if a standard pricing schedule shall exist. If there is
no standard pricing schedule, the parties shall mutually agree upon
the rates to be charged.
B. DST shall have the right, at any time and from time to time, to alter
and modify any systems, programs, procedures or facilities used or
employed in performing its duties and obligations hereunder; provided
that the Fund will be notified as promptly as possible prior to
implementation of such alterations and modifications and that no such
alteration or modification or deletion shall materially adversely
change or affect the operations and procedures of the Fund in using or
employing the TA2000 System or DST Facilities hereunder or the reports
to be generated by such system and facilities hereunder, unless the
Fund is given thirty (30) days prior notice to allow the Fund to
change its procedures and DST provides the Fund with revised operating
procedures and controls.
C. All enhancements, improvements, changes, modifications or new
features added to the TA2000 System however developed or paid for
shall be, and shall remain, the confidential and exclusive property
of, and proprietary to, DST.
24. SUBCONTRACTORS.
35
Provided DST used reasonable care in their selection, nothing herein shall
impose any duty upon DST in connection with or make DST liable for the
actions or omissions to act of unaffiliated third parties such as, by way
of example and not limitation, Airborne Services, NSCC, Trans Union,
ChoicePoint, custodial banks, pricing services, the U.S. mails and to
telecommunication companies, provided, if DST selected such company, DST
shall have exercised due care in selecting the same.
25. LIMITATIONS ON LIABILITY.
A If the Trust is comprised of more than one Fund (or if a Fund is
comprised of more than one Portfolio), each Fund or Portfolio shall be
regarded for all purposes hereunder as a separate party apart from
each other Fund or Portfolio. Unless the context otherwise requires,
with respect to every transaction covered by this Agreement, every
reference herein to the Trust shall be deemed to relate solely to the
particular Fund or Portfolio to which such transaction relates. Under
no circumstances shall the rights, obligations or remedies with
respect to a particular Fund or Portfolio constitute a right,
obligation or remedy applicable to any other Fund or Portfolio. The
use of this single document to memorialize the separate agreement of
each Fund or Portfolio is understood to be for clerical convenience
only and shall not constitute any basis for joining the Funds or
Portfolios for any reason.
B. Notice is hereby given that a copy of the Trust's Trust Agreement and
all amendments thereto is on file with the Secretary of the
Commonwealth of Massachusetts; that this Agreement has been executed
on behalf of the Trust by the undersigned duly authorized
representative of the Trust in his/her capacity as such and not
individually; and that the obligations of this Agreement shall only be
binding upon the assets and property of the Trust and shall not be
binding upon any trustee, officer or shareholder of the Trust
individually.
36
26. MISCELLANEOUS.
A This Agreement shall be construed according to, and the rights and
liabilities of the parties hereto shall be governed by, the laws of
the State of Delaware, excluding that body of law applicable to choice
of law.
B All terms and provisions of this Agreement shall be binding upon,
inure to the benefit of and be enforceable by the parties hereto and
their respective successors and permitted assigns.
C The representations and warranties, and the indemnification extended
hereunder, if any, are intended to and shall continue after and
survive the expiration, termination or cancellation of this Agreement.
D No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed
by each party hereto.
E. The captions in this Agreement are included for convenience of
reference only, and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
F. This Agreement 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.
G If any part, term or provision of this Agreement is by the courts
held to be illegal, in conflict with any law or otherwise invalid, the
remaining portion or portions shall be considered severable and not be
affected, and the rights and obligations of the parties shall be
construed and enforced as if the Agreement did not contain the
particular part, term or provision held to be illegal or invalid.
H This Agreement may not be assigned by the Trust or DST without the
prior written consent of the other.
I. Neither the execution nor performance of this Agreement shall be
deemed to create a partnership or joint venture by and between the
Trust and DST. It is understood and agreed that all services performed
hereunder by DST shall be as an independent contractor and not as an
employee of the Trust. This Agreement is between DST and the Trust and
neither this Agreement nor the performance of services under it
37
shall create any rights in any third parties. There are no third party
beneficiaries hereto.
J Except as specifically provided herein, this Agreement does not in
any way affect any other agreements entered into among the parties
hereto and any actions taken or omitted by any party hereunder shall
not affect any rights or obligations of any other party hereunder.
K The failure of either party to insist upon the performance of any
terms or conditions of this Agreement or to enforce any rights
resulting from any breach of any of the terms or conditions of this
Agreement, including the payment of damages, shall not be construed as
a continuing or permanent waiver of any such terms, conditions, rights
or privileges, but the same shall continue and remain in full force
and effect as if no such forbearance or waiver had occurred.
L This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement, draft or agreement or
proposal with respect to the subject matter hereof, whether oral or
written, and this Agreement may not be modified except by written
instrument executed by both parties.
M. All notices to be given hereunder shall be deemed properly given if
delivered in person or if sent by U.S. mail, first class, postage
prepaid, or if sent by facsimile and thereafter confirmed by mail as
follows:
If to DST:
DST Systems, Inc.
000 X 00xx Xxxxxx 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Group Vice President-Full Service
Facsimile No.: 000-000-0000
With a copy of non-operational notices to:
DST Systems, Inc.
000 Xxxx 00xx Xxxxxx, 0xx
Xxxxx Xxxxxx Xxxx, Xxxxxxxx
00000 Attn: Legal Department
Facsimile No.: 000-000-0000
If to the Trust:
SEI Global Funds Services
Xxx Xxxxxxx Xxxxxx Xxxx
Xxxx, XX 00000
Attn:
Facsimile No.:
38
or to such other address as shall have been specified in writing by
the party to whom such notice is to be given.
N. DST and the Trust (including all agents of the Trust) agree that,
during any term of this Agreement and for twelve (12) months after its
termination, neither party will solicit for employment or offer
employment to any employees of the other.
O The representations and warranties contained herein shall survive the
execution of this Agreement. The representations and warranties
contained in this Section, Section 27.0. and the provisions of Section
8 hereof shall survive the termination of the Agreement and the
performance of services hereunder until any statute of limitations
applicable to the matter at issues shall have expired.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officers, to be effective as of
the day and year first above written.
DST SYSTEM
By: /s/ [SIGNATURE NOT LEGIBLE]
--------------------------------
Title: Vice President
ADVISORS' INNER CIRCLE FUND II
By: /s/ Xxxxx Xxxxxx
----------------------
Title: Vice President
EXHIBIT A TO THE AGENCY AGREEMENT BETWEEN DST
AND ADVISORS' INNER CIRCLE FUND II
PAGE 1 OF 5
DST SYSTEMS, INC.
ADVISORS INNER CIRCLE FUND II FEE SCHEDULE
EFFECTIVE APRIL 1, 2006 -- MARCH 31, 2009
* FEE SCHEDULE APPLIES TO EACH INDIVIDUAL ADVISORS INNER CIRCLE CLIENT ON A
STAND ALONE BASIS [REDACTED]
EXHIBIT A TO THE AGENCY AGREEMENT
BETWEEN DST AND ADVISORS' INNER CIRCLE FUND II
PAGE 2 OF 5
[REDACTED]
TA2000 VOICE SYSTEM EXHIBIT A.1
PAGE 3 OF 5
FEE SCHEDULE
[REDACTED]
EXHIBIT A.2
PAGE 4 OF 5
NSCC FEES AND OUT-OF-POCKET EXPENSES
[REDACTED]
EXHIBIT A.3
PAGE 5 OF 5
FINANCIAL INTERMEDIARY/THIRD PARTY ADMINISTRATOR FEES
[Redacted]
EXHIBIT B.1
FUND CLOSING / DECONVERSION FEE SCHEDULE
[Redacted]
AMENDMENT TO
AGENCY AGREEMENT
THIS AMENDMENT TO AGENCY AGREEMENT (this "Amendment") is
entered into as of the 13 day of November, 2013 (the "Effective Date") by and
between ADVISORS' INNER CIRCLE FUND II, a business trust existing under the laws
of the Commonwealth of Massachusetts, having its principal place of business at
one Xxxxxxx Xxxxxx Xxxx, Xxxx, Xxxxxxxxxxxx 00000 (the "Trust") and DST SYSTEMS,
INC., a corporation existing under the laws of the State of Delaware, having its
principal place of business at 000 Xxxx 00(xx) Xxxxxx, 0(xx) Xxxxx, Xxxxxx Xxxx,
Xxxxxxxx 00000 ("DST").
WHEREAS, the Trust and DST entered into that certain Agency
Agreement on the 1(st) day of April, 2006 (as amended, the "Agreement").
WHEREAS, the Trust and DST wish to amend the terms of the Agreement as
outlined
below.
NOW, THEREFORE, in consideration of the mutual promises,
undertakings, covenants and conditions set forth herein, the Trust and DST
agree as follows:
1. AMENDMENT TO AGREEMENT. With effect as of the Effective Date, the
reference to March 30, 2014 as the expiration of the initial term in Section 21
is hereby modified to be March 31(st), 2019 as the expiration of the initial
term.
2. EFFECT ON AGREEMENT. As of the Effective Date, this Amendment
shall be effective to amend the Agreement and to the extent of any conflict
between the Agreement and this Amendment, this Amendment supercedes and
replaces the Agreement.
3. EXECUTION IN COUNTERPARTS/FACSIMILE TRANSMISSION. This Amendment
may be executed in separate counterparts, each of which will be deemed to be an
original and all of which, collectively, will be deemed to constitute one and
the same Amendment. This Amendment may also be signed by exchanging facsimile
copies of THIS Amendment, duly executed, in which event the parties hereto will
promptly thereafter exchange original counterpart signed copies hereof.
4. TERMINOLOGY. THE words "include", "includes" and "including" will
be deemed to be followed by the phrase "without limitation". The words
"herein", "hereof", "hereunder" and similar terms will refer to this Amendment
unless the context requires otherwise.
5. AGREEMENT IN FULL FORCE AND EFFECT. Except as specifically
modified by this Second Amendment, the terms and conditions of the Agreement
shall remain in full force and effect, and the Agreement, as amended by this
Amendment, and all of its terms, including, but not limited to any warranties
and representations set forth therein, if any, are hereby ratified and
confirmed by the Trust and DST as of the Effective Date.
6. CAPITALIZED TERMS. ALL capitalized terms used but not defined in
this Amendment will be deemed to be defined as set forth in the Agreement.
7. AUTHORIZATION. Each party hereby represents and warrants to the
other that the person or entity signing this Amendment on behalf of such party
is duly authorized to execute and deliver this Amendment and to legally bind
the party on whose behalf this Amendment is signed to ALL of the terms,
covenants and conditions contained in this Amendment.
8. GOVERNING LAW, This Amendment shall be construed according to and
governed by the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties have caused this Second Amendment to
be executed by their duly authorized representatives as of the date first
written above.
ADVISORS' INNER CIRCLE FUND II
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------
Printed Name: Xxxxxx Xxxxxxxxxx
Title: VP And Secretary
DST SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Printed Name: Xxxxxx X. Xxxxxxx
Title: Vice President
