Exhibit (h)(3)
AGENCY AGREEMENT
THIS AGREEMENT made the ___ day of ______, ____, by and between UAM FUNDS,
INC. II (the "Corporation"), a corporation existing under the laws of the State
of Maryland, and having its principal place of business at Xxx Xxxxxxx Xxxxxx
Xxxxx, Xxxx, Xxxxxxxxxxxx 00000, and DST SYSTEMS, INC., a corporation existing
under the laws of the State of Delaware, having its principal place of business
at 000 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("DST"):
WITNESSETH:
WHEREAS, the Corporation desires to appoint DST as Transfer Agent and
Dividend Disbursing Agent for all present and future series or portfolios of the
Corporation, each presently existing series or portfolios (and each new series
or portfolio when created to be) set forth on Exhibit A, as amended from time to
time (as used herein the "Fund" or "Funds" includes, jointly and severally, the
Corporation and each investment company set forth on Exhibit A, as amended from
time to time with the mutual agreement of the Corporation and DST) 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.
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In connection with the appointment of DST as Transfer Agent and Dividend
Disbursing Agent for each Fund, there will be filed with DST the following
documents:
A. A certified copy of the resolutions of the Board of Directors of the
Corporation appointing DST as Transfer Agent and Dividend Disbursing
Agent for each Fund, approving the form of this Agreement, and
designating certain persons to give written instructions and requests
on behalf of the Corporation and each Fund;
B. A certified copy of the organizing documents of the Corporation and
each Fund and all amendments thereto;
C. A certified copy of the Bylaws of the Corporation (the Corporation
hereby representing and warranting that those of each Fund are
identical to those of the Corporation);
D. Copies of Registration Statements and amendments thereto, filed with
the Securities and Exchange Commission;
E. Specimens of the signatures of the officers of each Fund authorized to
sign stock certificates and individuals authorized to sign written
instructions and requests;
F. An opinion of counsel for each Fund with respect to:
(1) The Fund's organization and existence under the laws of its state
of organization,
(2) The status of all shares of stock of the Fund covered by the
appointment under the Securities Act of 1933, as amended (the "33
Act"), 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 non-assessable.
2. Certain Representations and Warranties of DST.
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DST represents and warrants to the Fund 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 as amended (the "34 Act") and has
complied with the SEC's regulations for registered transfer agents.
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. DST hereby represents and warrants that, properly used, the TA2000
System is capable of maintaining these records required to be
maintained by a transfer agent under Section 17Ad(1)-(18) of the '34
Act for securities issued by open-end investment companies.
3. Certain Representations and Warranties of the Corporation on its own behalf
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and that of each Fund.
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The Corporation represents and warrants to DST that:
A. It is a corporation duly authorized and in good standing under
the laws of Maryland and each Fund is a business trust or a
corporation duly organized and existing and in good standing
under the laws of Delaware or Maryland, as appropriate;
B. It and each Fund is an open-end management investment company
registered under the Investment Company Act of 1940, as amended
(the "40 Act");
C. A registration statement under the Securities 33 Act has been
filed and will be effective with respect to all shares of each
Fund being offered for sale;
D. All requisite steps have been and will continue to be taken to
register each Fund'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; and
E. Each Fund is empowered under applicable laws and by its charter
and Bylaws to enter into and perform this Agreement.
4. Scope of Appointment.
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A. Subject to the conditions set forth in this Agreement, the
Corporation hereby appoints DST as Transfer Agent and Dividend
Disbursing Agent for each Fund.
B. DST hereby accepts such appointment and agrees that it will act
as each Fund'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 Corporation 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 each
Fund, and as agent of the Fund for shareholder accounts thereof, in a
timely manner: (i) issuing, transferring and exchanging shares in book
entry form; (ii) maintaining on the
TA2000 System shareholder accounts; (iii) with respect to brokers with
whom the Fund has agreed to participate in Networking and Fund/SERV,
as hereinafter defined, 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 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)
periodically preparing shareholder meeting lists for use in connection
with shareholder meetings and certifying a copy of such list; (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 the Fund; (xii) preparing and mailing
confirmation forms to shareholders and dealers, as instructed, for all
purchases and liquidations of shares of the Fund and other confirmable
transactions in shareholders' accounts; (xiii) providing or making
available on-line daily and monthly reports as provided by the TA2000
System and as requested by the Fund or its Authorized Person, as
hereinafter defined; (xiv) maintaining those records necessary to
carry out DST's duties hereunder,
including all information reasonably required by the 34 Act and the 40
Act or required by the Corporation to account for all transactions in
the Funds' shares; (xv) calculating the appropriate sales charge with
respect to each purchase of the Fund shares as instructed by an
Authorized Person, as hereinafter defined, 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
Fund'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)
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 and the Procedures, as hereinafter defined,
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 Procedures, the
applicable prospectus and the general exchange privilege applicable;
(xix) 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 Funds on TA2000; and (xx)
providing to the Corporation escheatment reports as requested by an
Authorized Person with respect to the status of accounts and
outstanding checks on TA2000.
E. DST shall not be responsible 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 (including, without limitation, price changes
and corrective processing (the "Exception Services").
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 the Fund's
instructions, prospectus or application as amended from time to time,
for the 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 the Corporation 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 Corporation of the amount of such
increase and if the Corporation 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 Corporation shall add new series or portfolios 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 B 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 as mutually
agreed to.
5. Limit of Authority.
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Unless otherwise expressly limited by the resolution of appointment or by
subsequent action by the Corporation or a Fund, the appointment of DST as
Transfer Agent will be construed to cover the full amount of authorized
stock 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 Corporation will file with DST: if the
appointment of DST was theretofore expressly limited, a certified copy of a
resolution of the Board of Directors of the Fund increasing the authority
of DST, and in all cases an opinion of counsel for the Fund stating: (1)
The status of the additional shares of stock of the Fund under the
Securities 33 Act, 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 non-assessable.
6. Compensation and Expenses.
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A. In consideration for its services hereunder as Transfer Agent and
Dividend Disbursing Agent, the Corporation will pay to DST from time
to time a reasonable compensation for all services rendered as Agent.
("Compensation and Expenses") incurred in connection with the agency.
Such compensation is set forth in a separate schedule to be agreed to
by the Corporation and DST, a current copy of which is attached hereto
as Exhibit B. If the Corporation has not
paid the compensation and expenses due to DST under Sections 6.A and
6.B of this Agreement within thirty (30) days of receipt of the
invoice therefor, 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 Corporation 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
(continuous or otherwise), specially requested reports and statements,
telephone calls, telegraphs, stationery supplies, counsel fees in
connection with legal questions regarding instructions, requests or
documentation submitted by shareholders, outside printing and mailing
firms (including Output Technology Solutions, Inc. and ("OTS")) and
OTS's subsidiaries, magnetic tapes, reels or cartridges (if sent to
the Corporation or to a third party at the Corporation'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 Corporation's
request at the Corporation's or a third party's premises,
telecommunications equipment, telephone/telecommunication lines
between the 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 by a third party other than OTS, and National
Securities Clearing Corporation ("NSCC") transaction fees to the
extent any of the foregoing are paid by DST. The Corporation 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 Corporation will be promptly reimbursed by the
Corporation.
C. Amounts due hereunder shall be due and paid on or before the thirtieth
(30th) business day after receipt of the statement therefor by the
Corporation (the "Due
Date"). The Fund 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 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 Fund 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 per cent (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 Fund'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 Corporation 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 (5th) business day
after the day on which DST provides to the Corporation 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 B 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 B;
(2) DST may increase the fees and charges set forth on Exhibit B 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) DST may charge for additional features of TA2000 used by the
Corporation which features are not consistent with the
Corporation's current processing requirements; and
(4) In the event DST, at the Corporation's request or direction,
agrees to perform Exception Services, DST shall be entitled
to increase the fees and charges for such Exception Services
from those set forth on Exhibit B to the extent such
Exception Services increase DST's cost of performance
(including any increase in DST's risk of loss from errors).
DST shall provide the Corporation with reasonable evidence
of such increase.
If DST notifies the Corporation 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 to cover
the amount necessary, but not more than such amount, to reimburse DST
for the Corporation's aliquot portion of the cost of developing the new
software to comply with regulatory charges and for the increased cost
of operation. If DST and the Corporation are not able to agree upon
such new fees, then the Corporation shall have thirty (30) days upon
which to accept DST's last offer or to announce the Corporation's
intention to terminate this Agreement. DST thereupon will have fifteen
(15) days to accept the Corporation's position on the proposed fee
increase or to accept the termination of this Agreement. If such notice
is accepted, the Corporation shall deconvert from TA2000 within one
hundred twenty (120) days of DST's notice of acceptance of termination.
If DST notifies the Corporation of an increase in fees or charges under
Section 4.F. or subparagraphs (3) or (4) of this Section 6.E., the
parties shall confer, diligently and in good faith, and agree upon a
new fee to cover such new function, Fund feature or Exception Service.
In the event that DST and the Fund are unable to agree upon a new fee,
then DST shall not be obligated to provide such new service and shall
not be entitled to such fee increase.
7. Operation of DST System.
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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 Fund's records on the
TA2000 System created by DST, reflect the orders, instructions,
and other information received by DST from the Fund, the Fund's
distributor, manager or principal underwriter, the Fund's
investment adviser, the Fund's sponsor, the Fund's custodian, the
Fund's shareholder service agent (UAM Shareholder Services
Corporation, Inc. ("UAM SSC")), or the Corporation (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 Fund's records on the TA2000 System;
C. The accurate and timely issuance of dividend and distribution
checks in accordance with instructions received from the
Corporation and the data in the Fund'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 Fund's records on the TA2000 System;
E. The deposit daily in the Fund'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 assume one hundred percent
(100%) responsibility for losses resulting from "as ofs" due to
non-negligent clerical errors or misinterpretations of
shareholder instructions, but DST will discuss with the
Corporation DST's accepting liability for an "as of" on a
case-by-case basis and shall accept financial responsibility for
a particular situation involving negligent clerical errors or
negligent misinterpretations of shareholder instructions, but not
non-negligent errors or misinterpretations, resulting in a
material (as defined by the Investment Company Institute)
financial loss to the Fund;
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 with such changes or deviations therefrom as
may be from time to time required or approved by the Fund, its
investment adviser or principal underwriter, or UAM SSC, or the
Corporation's, or DST's counsel (collectively the "Procedures")
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 the 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.
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A. DST shall at all times use reasonable care, due diligence and act
in good faith in performing its duties under this Agreement. DST
shall provide its services as Transfer Agent in accordance with
Section 17A of the 34 Act, and the rules and regulations
thereunder. In the absence of bad faith, willful misconduct,
knowing (DST is presumed under this Agreement to know when DST is
violating provisions of the 34 Act and the 40 Act and any rules
and regulations thereunder) 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 or
any deviation therefrom approved by an Authorized Person or, or
UAM SSC, or the Corporation, UAM SSC or DST counsel, or the
waiver by the Corporation or an Authorized Person of a
requirement for any action by DST, which requirement DST would
otherwise have been entitled to demand.
B. DST shall not be responsible for, and the Corporation shall
indemnify and hold DST harmless from and against, any and all
losses, damages, costs, charges, reasonable counsel fees,
payments, expenses and liability which may be asserted against
DST or for which DST may be held to be liable, arising out of or
attributable to:
(1) All actions of DST required to be taken by DST pursuant to
this Agreement, provided that DST has acted in good faith and
with due diligence and reasonable care;
(2) The Corporation's or any Fund's refusal or failure to comply
with the terms of this Agreement, the Corporation's
negligence or willful misconduct, or the breach of any
representation or warranty of the Corporation hereunder;
(3) The good faith reliance on, or the carrying out of, any
written or oral instructions or requests of persons
designated by the Corporation or the Fund in writing (see
Exhibit C) 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 Corporation
or the Fund, its investment advisor, its sponsor or its
principal underwriter;
(4) Defaults by dealers or shareowners with respect to payment
for share orders previously entered;
(5) The offer or sale of the Fund's 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 Corporation or the Fund or of any officer
of the Corporation or the Fund that no offers or sales be
input into the Fund's securityholder records in or to
residents of such state);
(6) The Corporation's or the Fund'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, the Fund's
records, shareholder and other records, delivered to DST
hereunder by the Corporation or the Fund's or the
Corporation's prior agent(s);
(8) Actions or omissions to act by the Corporation or the Fund or
agents designated by the Corporation or the Fund with respect
to duties assumed thereby as provided for in Section 21
hereof; and
(9) DST's performance of Exception Services, if DST agrees to
perform Exception Services, except where DST acted or omitted
to act in bad faith, with reckless disregard of its
obligations under this Agreement or with gross negligence.
C. Except where DST is entitled to indemnification under Section
8.B. hereof and with respect to "as ofs" set forth in Section
7.F., DST shall indemnify and hold
the Corporation harmless from and against any and all losses,
damages, costs, charges, reasonable counsel fees, payments,
expenses and liability arising out of DST's failure to comply
with the terms of this Agreement or arising out of or
attributable to DST's negligence or willful misconduct or breach
of any representation or warranty of DST hereunder.
D. EXCEPT FOR VIOLATIONS OF SECTION 23, 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.
E. DST will indemnify and hold the Corporation harmless against, and
DST will at its own expense defend any action brought against the
Corporation to the extent such action is based upon, a claim that
the TA2000 system as used within the scope of this Agreement
infringes any U.S. patent, copyright or trade secret; provided,
that DST is immediately notified in writing of any such claim;
and provided, further, that DST shall have the exclusive right to
control such defense and settle such claim. Notwithstanding the
foregoing, in no event may DST settle any such claim, lawsuit or
proceeding in a manner which binds the Corporation to liability
without the Corporation's consent and in no event shall the
Corporation settle any such claim, lawsuit or proceeding without
DST's prior written approval. In the event of any such claim,
litigation or threat thereof, DST may, in its sole and absolute
discretion either;
(i) Procure for the Corporation a right to continue to use
the TA2000 System at no additional charge to the
Corporation; or
(ii) Replace or modify the TA2000 System so as to be
non-infringing without eliminating or diminishing the
services provided hereunder at no additional charge to
the Corporation; or
(iii) Only if (i) or (ii) cannot be accomplished on
commercially reasonable terms, terminate this
Agreement without any further liability to the
Corporation.
F. 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 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 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 Fund.
-------------------------------------
A. All requisite steps will be taken by the Fund from time to time
when and as necessary to register the Fund's shares for sale in
all states in which the Fund's shares shall at the time be
offered for sale and require registration. If at any time the
Fund will receive notice of any stop order or other proceeding in
any such state affecting such registration or the sale of the
Fund's shares, or of any stop order or other proceeding under the
federal securities laws affecting the sale of the Fund's shares,
the Fund 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. and 4.E. above and establish and
maintain facilities and procedures reasonably acceptable to the
Corporation for safekeeping of stock certificates, 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 40 Act and the 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 Corporation and will be
preserved and will be surrendered promptly to the Corporation on
request.
D. DST agrees to furnish the Corporation annual reports of its
financial condition, consisting of a balance sheet, earnings
statement and any other financial information reasonably
requested by the Corporation. The annual financial statements
will be certified by DST's certified public accountants.
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 Corporation and, upon execution of DST's
standard Confidentiality and Limited Use Agreement, a copy of
which is attached hereto as Exhibit D, its authorized
representatives to make periodic inspections of its operations as
such would involve the Corporation at reasonable times during
business hours.
G. DST agrees to use its reasonable efforts to provide in Kansas
City or at the Corporation's facility at the Corporation's
expense and at DST's then current rates and charges therefor
training for the Corporation's personnel in connection with use
and operation of the TA2000 System as reasonably requested by the
Corporation. All travel and reimbursable expenses incurred by the
Corporation's personnel in connection with and during training at
DST's Facility shall be borne by the Corporation. Reasonable
travel, per diem and reimbursable expenses incurred by DST
personnel in connection with and during training at the
Corporation's facility shall be borne by the Corporation.
H. Notwithstanding anything in this Agreement to the contrary, DST's
only warranty or covenant with respect to year 2000 compliance is
that the TA2000 System will be year 2000 compliant during the
term set forth in Section 21 of this Agreement. As used in this
Agreement, "year 2000 compliant" shall mean that the TA2000
System will perform in accordance with the terms of this
Agreement regardless of
the century with respect to which date data is encountered by the
TA2000 System; provided, that (i) all date data received by DST
for use by the TA2000 System is accurate and in formats specified
by DST from time to time, (ii) all date data generated by the
TA2000 System is accepted by the recipient in formats provided by
DST from time to time, and (iii) DST shall not be obligated to
provide date data for interface functions such as screens,
reports or data transmission files in any format other than that
specified by DST from time to time. Notwithstanding the
foregoing, DST makes no representation or warranty as to the
ability of any hardware, firmware, software, products or services
provided to DST by any other party to manipulate or to process
date data, or as to the functionality of any DST software
(including without limitation the TA2000 System), in
circumstances where data received from any third party system
(including without limitation that of the Fund and its Authorized
Persons, agents or customers), is invalid, incorrect or otherwise
corrupt.
10. Recapitalization or Readjustment.
--------------------------------
In case of any recapitalization, readjustment or other change in the
capital structure of the Fund, DST will accomplish such
recapitalization or readjustment by book entry upon receiving:
A. Written instructions from an officer of the Corporation or the
affected Fund; and
B. Opinion of counsel for the Fund stating:
(1) The status of the shares of stock of the Fund in the new
form under the 33 Act as amended and any other applicable
federal or state statute; and
(2) That all corporate and regulatory steps required for the
issuance of the new shares have been completed and the
issued shares in the new form are, and all unissued shares
will be, when issued, validly issued, fully paid and
non-assessable.
11. Stock Certificates.
------------------
The Fund has only five (5) or less certificates outstanding and does
not intend to issue more. The Corporation shall be solely responsible
for all activities relating to such
certificates, including processing all transactions and maintaining
all records pertaining thereto.
12. Death, Resignation or Removal of Signing Officer.
------------------------------------------------
The Corporation will file promptly with DST written notice of any
change in the officers authorized to sign written instructions or
requests, together with two signature cards bearing the specimen
signature of each newly authorized officer.
13. Future Amendments of Charter and Bylaws.
---------------------------------------
The Corporation will promptly file with DST copies of all material
amendments to the Funds' charter document or Bylaws made after the
date of this Agreement.
14. Instructions, Opinion of Counsel and Signatures.
-----------------------------------------------
At any time DST may apply to any person authorized by the Corporation
to give instructions to DST, and may with the approval of an the
Corporation officer consult with legal counsel for the Fund, or DST's
own legal counsel at the expense of the Corporation, with respect to
any matter arising in connection with the agency (the Corporation will
not bear the expense of DST outside counsel for matters relating to
DST's obligations under federal law) and it will not be liable for any
action taken or omitted by it in good faith in reliance upon such
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 any person, until receipt of written notice thereof from the
Corporation. Stock certificates will be forwarded to the Corporation
for processing.
15. 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) 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, tornadoes,
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
Corporation is paying each Funds' 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 Fund data to the
computers at the Recovery Facility in accordance with the then
current Business Contingency Plan.
C. DST also currently maintains, separate from the area in which the
operations which provides the services to the Fund 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 DST's
operations to other operating areas or to the Crisis Management
Center is also covered in DST's Business Contingency Plan.
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 40 Act, if any.
17. Disposition of Books, Records and Canceled Certificates.
-------------------------------------------------------
DST may send periodically to the Corporation, or to where designated
by the Secretary or an Assistant Secretary of the Fund, all books,
documents, and all records no longer
deemed needed for current purposes, upon the understanding that such
books, documents, and records will be maintained by the Corporation,
the Fund or the recipient designated by the Corporation or the Fund
under and in accordance with the requirements of Section 17Ad-7
adopted under the 34 Act, including by way of example and not
limitation Section 17Ad-7(g) thereof. Such materials will not be
destroyed 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.
--------------------------------------------
A. DST will register the ownership of additional shares as it
receives appropriate instructions or payment therefore, it being
the responsibility of the Fund or its designated agents to assure
that sufficient numbers of shares have been registered as
required by all applicable laws, rules or regulations and that
all applicable taxes have been paid.
B. Book entry (unissued) shares of stock will be transferred and
ownership thereof will be re-registered or book entry (unissued)
shares of stock accepted for redemption and funds remitted
therefor, or book entry transfer be effected, upon receipt by DST
of instructions deemed by DST properly endorsed and accompanied
by such documents as DST reasonably 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 any necessary document is valid and genuine, and for
that purpose it may require a guaranty of signature in accordance
with DST's 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, the Corporation and the Fund in not requiring
complete fiduciary or other 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.
C. DST will act as Conversion Agent for unissued shares upon
receiving written instructions from any officer of the Fund and
such other documents as DST reasonably deems necessary.
D. DST will supply shareholder's lists to the Corporation for
shareholder meetings upon receiving a request from an officer of
the Corporation.
E. Upon receipt of written instructions of an officer of the
Corporation, DST will, at the expense of the Corporation, address
and mail notices to shareholders.
F. In case of any request or demand for the inspection of the stock
books of the Fund or any other Corporation books in the
possession of DST, DST will endeavor to notify the Corporation
and to secure instructions as to permitting or refusing such
inspection. DST reserves the right, however, to exhibit the stock
books or other books to any person in case it is advised by its
counsel that it may be held responsible for the failure to
exhibit the stock books or other books to such person.
19. Provisions Relating to Dividend Disbursing Agency.
-------------------------------------------------
A. DST will, at the expense of the Corporation, provide a special
form of check containing the imprint of any device or other
matter desired by the Corporation. Said checks must, however, be
of a form and size convenient for use by DST.
B. If the Corporation 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
Corporation.
C. If the Corporation desires distributions be 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 Corporation; 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 Corporation.
D. DST shall establish and maintain one or more deposit accounts as
Agent for the Funds, into which DST shall deposit the funds DST
receives for payment of dividends, distributions, redemptions or
other disbursements provided for hereunder and to draw checks
against such accounts.
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 Corporation or Agents Designated By the
-------------------------------------------------------------------
Corporation.
------------
A. The Corporation, the Fund or their 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 Sections 4.D. and 4.E. 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 Fund, said assumption to be embodied in writing to
be signed by both parties.
B. To the extent the Corporation or the Fund or their 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 Corporation's designee UAM Shareholder Service
Center, Inc. ("UAMSSC") shall be responsible for the activities
set forth in Exhibit D, attached hereto. DST will use its
reasonable efforts to provide reasonable
assistance to UAM SSC in performing the services described
therein but DST shall have no responsibility or liability for any
errors, inaccuracies, omissions or inadequacies of UAM SSC or for
verifying any of UAM SSC actions or omissions.
21. Termination of Agreement.
------------------------
A. This Agreement shall be in effect until October 31, 2001 (the
"Initial Term"), but may be terminated by either party upon
delivery of six (6) month's written notice to the other party,
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 and any such
termination by the Corporation will be subject to the fees and
charges set forth in Section 22.C of this Agreement. Upon the
expiration of the Initial Term, or any term thereafter, this
Agreement shall automatically renew for successive one-year
terms, unless terminated by the either party on six (6) month's
prior written notice to the other party.
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 termination, the Corporation will promptly pay
DST all amounts due to DST hereunder prior to or
contemporaneously with the deconversion of the Fund's records
from the TA2000 System. In addition, if this Agreement is
terminated by the Corporation for any reason other than those set
forth in Section 22.B. hereof during the Initial Term or, after
such Initial Term, at any time otherwise than as of the last day
of the then current term, then the Corporation
shall pay to DST a termination fee equal to the aggregate of all
the discounts received or due to the Corporation during the then
current term. Additionally, if such termination occurs before the
expiration of the Initial Term, DST shall be entitled to recover,
and the Corporation shall pay to DST, an amount equal to the
aggregate of all costs incurred by DST in connection with the
establishment of the Funds on, and the conversion of the Funds
to, the TA2000 System less the amounts previously reimbursed to
DST for the first 1100 man hours. All discounts to fees otherwise
payable by the Corporation to DST under this Agreement shall
cease and be of no further force and effect as of the first day
of any month during which DST receives a notice of termination of
this Agreement from the Corporation.
D. In the event of termination, DST will use its reasonable efforts
to transfer the records of the Fund to the designated successor
transfer agent, to provide reasonable assistance to the
Corporation 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.
22. Confidentiality.
---------------
A. DST agrees that, except as provided in the last sentence of
Section 18.F. hereof, or as otherwise required by law or by
subpoena, DST will keep confidential all records of and
information in its possession relating to the Corporation and the
Fund or its shareholders or shareholder accounts and will not
disclose the same to any person except at the request or with the
consent of the Corporation or the Fund.
B. The Corporation agrees that it and each Fund will 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.
C. (1) The Corporation 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 programs, data bases, supporting
documentation, or procedures (collectively "DST Confidential
Information") which the Corporation's access to the TA2000
System or computer hardware or software may permit the
Corporation 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 Corporation agrees that it and each Fund will maintain
the confidentiality of the DST Confidential Information.
(2) The Corporation acknowledges that any unauthorized use,
misuse, disclosure or taking of DST Confidential Information
which is confidential as provided by law, or which is a
trade secret, 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. the Corporation will advise all of its
employees and agents and all of the employees and agents of
each Fund who have access to any DST Confidential
Information or to any computer equipment capable of
accessing DST or DST hardware or software of the foregoing.
(3) The Corporation acknowledges that disclosure of the
DST Confidential Information may give rise to an irreparable
injury to DST inadequately compensable in damages.
Accordingly, DST 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 the Corporation 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.
23. Changes and Modifications.
-------------------------
A. During the term of this Agreement DST will use on behalf of the
Corporation 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 in which case the charges applicable to such
modifications, enhancements or changes shall be determined
according to Section 6.E. of this Agreement.
B. DST shall have the right, at any time and from time to time, to
alter and to modify any systems, programs, procedures or
facilities used or employed in performing its duties and
obligations hereunder; provided that the Corporation 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 Corporation 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 Corporation is given thirty (30) days prior notice to
allow the Corporation to change its procedures and DST provides
the Corporation 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.
--------------
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, the U.S. mails, telecommunication companies, and any agents
of the Fund (including without limitation the Fund's banks -
custodian, deposit and paying banks), provided, if DST selected such
company, DST shall have exercised due care in selecting the same.
25. Limitation on Liability.
-----------------------
If the Corporation is comprised of more than one Fund, each Fund shall
be regarded for all purposes hereunder as a separate party apart from
each other Fund. Unless the context otherwise requires, with respect
to every transaction covered by this Agreement, every reference herein
to the Corporation shall be deemed to relate solely to the particular
Fund to which such transaction relates. Under no circumstances shall
the rights,
obligations or remedies with respect to a particular Fund constitute a
right, obligation or remedy applicable to any other Fund. The use of
this single document to memorialize the separate agreement of each
Fund is understood to be for clerical convenience only and shall not
constitute any basis for joining the Funds for any reason.
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 Missouri, 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 Corporation 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 Corporation 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 Corporation. This
Agreement is between DST and the Corporation and neither this
Agreement nor the performance of services under it 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 Xxxx 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Senior Vice President-Full Service
Telephone No.: (000) 000-0000
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
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to the Corporation:
UAM FUNDS, INC. II
c/o SEI Investments
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxx Veherlein
Telephone: (000) 000-0000
Facsimile No.: (000) 000-0000
or to such other address as shall have been specified in
writing by the party to whom such notice is to be given.
N. The representations and warranties contained herein shall survive
the execution of this Agreement. The representations and
warranties contained herein 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 SYSTEMS, INC. UAM FUNDS, INC. II
By: By:
---------------------------- --------------------------------
Title: Title:
------------------------- -----------------------------
UAM FUNDS, INC. XX-xxxxxx.xx (05/25/01)
EXHIBIT A, p. 1
FUNDS
Fund Name
Analytic Defensive Equity Fund
Analytic Enhanced Equity Fund
Analytic International Fund
Analytic Master Fixed Income Fund
Analytic Short-Term Government Fund
EXHIBIT B
Page 1 of 6
DST SYSTEMS, INC.
UAM FUNDS, INC. II
TRANSFER AGENCY FEE SCHEDULE
TERM: 11/1/1998 - 10/31/2001
(CPI 4.1% - Effective 11/1/00)
A. Base Fee:
Cusip Base Fee - $13,939 per cusip per year
Base Fee Discount:
Months 1 - 6 20%
Months 7-12 15%
Months 13-18 10%
Months 19-24 5%
Months 25-36 0%
B. Account Maintenance Fees:
Open Accounts - $9.65 per open account per year
Closed Accounts - $1.87 per closed account per year
C. Transaction Processing Fees:
New Account Set-Up:
Manual - $3.76 per new account set-up
Automated - $1.61 per new account set-up
Manual Transactions - $2.69 per transaction
Omnibus Transactions - $2.69 per transaction
12b-1 Processing - $0.17 per open and closed account per cycle
D. Optional Services:
*Vision - $0.05 per view + $5.00 per ID per month
*FANMAIL - $6,000 per year + $0.18 per record
*NSCC - See Exhibit A
*FAN - See Exhibit B
Contingent Deferred Sales Charge (CDSC) - $2.04 per open account
Trade Date Accumulated Shares System (TASS) - $1.07 per account per year
Intelligent Workstation (IWS)/Literature - $0.37 per item
Average Cost - $5,387 per year of history converted + $0.27 per account
per year
*Power Select (Remote Licenses Fee) - $2,413 per month
EXHIBIT B
Page 2 of 6
E. Voice Response System:
Monthly Call Volume Per Call Fee
------------------- ------------
1 - 40,000 $0.22
40,001 - 120,000 0.17
120,001 - 200,000 0.12
200,001 - 300,000 0.08
Over 300,000 0.07
Subject to a monthly minimum of $107 per CUSIP plus $0.004 per shareholder
account.
F. Other:
*Computer/Technical Personnel (2001 Standard Rates):
*Business Analyst/Tester:
Dedicated $106,080 per year
On Request $93.60 per hour
*COBOL Programmer:
Dedicated $176,800 per year
On Request $140.40 per hour
*Workstation Programmer:
Dedicated $204,880 per year
On Request $166.40 per hour
*Business Analyst:
Senior Staff Support $75 per hour
Staff Support $55 per hour
Clerical Support $45 per hour
Escheatment Costs - $130 per cusip per filing plus $1.56 per item plus
out-of-pocket costs
Acquisition/Conversion Costs - Out of pocket expenses including but not
limited to travel and accommodations, programming, training, equipment
installation, etc.
EXHIBIT B
Page 3 of 6
NOTES TO THE ABOVE FEE SCHEDULE
A. The above schedule does not include reimbursable expenses that are
incurred on the Fund's behalf. Examples of reimbursable expenses are set
forth hereinafter. Reimbursable expenses are billed separately from
service fees on a monthly basis.
B. Any fees or reimbursable expenses not paid within 30 days of the date of
the original invoice will be charged a late payment fee of 1.5% per month
until payment is received.
C. The above fees, except for those indicated by an "*", are guaranteed for a
three year term, subject to an annual increase in an amount not less than
the annual percentage change in the Consumer Price Index (CPI) for all
urban consumers in the Kansas City, Missouri-Kansas Standard Metropolitan
Statistical Area. All items, Base 1982 - 1984 = 100, as last reported by
the U.S. Bureau of Labor Statistics for the twelve (12) calendar months
immediately following the month during which such anniversary occurred. In
section F, new Computer/Technical Personnel fees go into effect each
January 1. All items marked by an "*" are subject to change with 60 day
notice.
D. The monthly fee for an open account shall be charged in the month during
which an account is opened through the month in which such account is
closed. The monthly fee for a closed account shall be charged in the month
following the month during which such account is closed and shall cease to
be charged in the month following the Purge Date, as hereinafter defined.
The "Purge Date" for any year shall be any day after June 1st of that
year, as selected by the Fund, provided that written notification is
presented to DST at least forty-five (45) days prior to the Purge Date.
NSCC OUT-OF-POCKET EXPENSES EXHIBIT B.1
Page 4 of 6
================================================================================
DST Fees
DST charges $1,500 per cusip per year for the NSCC platform
Settling Bank Fees
The fund may be charged fees by the Settling Bank at which the net
settlement account resides for monthly maintenance of this account.
These are negotiated directly between the Fund and the Settling Bank.
NSCC Participant Fees
The NSCC charges $40 per month per management company for CPU
access/shared line costs.
A combined participant base fee of $200 per month is charged for the
following services:
Fund/SERV:
---------
The NSCC charges an activity charge of $.30 per inputted transaction.
Transactions include purchases, redemptions and exchanges.
Networking: The NSCC charges the following activity fee:
----------
- $.02 per account for funds paying dividends on a monthly basis
- $.01 per account for funds paying dividends other than monthly
Commission Settlement: The NSCC charges the following processing fee:
---------------------
- $.30 per hundred records, per month, for one to 500,000 records;
there is a $50 per month minimum processing charge
- $.20 per hundred records, per month, for 500,001 to 1,000,000
records
- $.10 per hundred records, per month, for 1,000,001 records and
above
Note: Participant fees are cumulative when Fund/SERV, Networking and/or
Commission Settlement are used in conjunction with each other.
WEB SERVICES EXHIBIT B.2
Page 5 of 6
================================================================================
Base Fee
Basic Package/1/ $10,000
Advanced Package/2/ $15,000
FAN Set-up Fee $5,000
Transaction Fees
Account Inquiry (Position) $ .05
Account Inquiry (History) $ .05
Transactions/3/ $ .50
Monthly Minimum Transaction Fees $2,000
Other Fees
Fund-Specific Enhancements/Consulting $150/hour
Tutorial Web Site $5,000
Notes:
1. These fees apply only to cases where the Fund provides a link from the
Customer Web Site to the DST Web Site.
2. The FAN set-up fee is a one-time charge. The Customer will only incur
this charge once, regardless of the number of FAN Web Services in
which the Customer participates.
3. Other Transactions may be supported in the future, the fees for which
will be determined at that time. The Customer will not be obligated to
offer new Transaction types.
4. If a Customer upgrades from the "Basic" package to the "Advanced"
package, the Customer will pay an additional $5,000 fee for the
upgrade.
------------------
/1/Includes 10 hours of consulting. Additional hours will be billed at
$150/hour.
/2/Includes 15 hours of consulting. Additional hours will be billed at
$150/hour.
/3/Transactions include ACH purchase, exchange, redemption via ACH, wire, or
check.
EXHIBIT B.3
Page 6 of 6
================================================================================
REIMBURSABLE EXPENSES
Forms
Postage (to be paid in advance if so requested)
Mailing Services
Computer Hardware and Software - specific to Fund or installed at remote
site at Fund's direction
Telecommunications Equipment and Lines/Long Distance Charges
Magnetic Tapes, Reels or Cartridges
Magnetic Tape Handling Charges
Microfiche/Microfilm
Freight Charges
Printing
Bank Wire and ACH Charges
Proxy Processing - per proxy mailed
not including postage
Includes: Proxy Card
Printing
Outgoing Envelope
Return Envelope
Tabulation and Certification
T.I.N. Certification (W-8 & W-9)
(Postage associated with the return
envelope is included)
*N.S.C.C. Communications Charge See Exhibit A
(Fund/Serv and Networking)
Off-site Record Storage
Second Site Disaster
Backup Fee (per account) $0.10 per account
per year
Transmission of Statement Data for Currently $.035 per
Remote Processing, except for transmissions to OTS shareholder record
Travel, Per Diem and other Billables
Incurred by DST personnel traveling to,
at and from the Fund at the request
of the Fund
EXHIBIT C
AUTHORIZED PERSONNEL
Pursuant to Section 7.A. of the Agency Agreement between the Corporation and DST
(the "Agreement"), the Corporation authorizes the following the Corporation
personnel to provide instructions to DST, and receive inquiries from DST in
connection with the Agreement:
Name Title
---- -----
----------------------------- --------------------------------
----------------------------- --------------------------------
----------------------------- --------------------------------
----------------------------- --------------------------------
----------------------------- --------------------------------
----------------------------- --------------------------------
----------------------------- --------------------------------
This Exhibit may be revised by the Corporation by providing DST with a
substitute Exhibit C. Any such substitute Exhibit C shall become effective
twenty-four (24) hours after DST's receipt of the document and shall be
incorporated into the Agreement.
ACKNOWLEDGMENT OF RECEIPT:
DST SYSTEMS, INC. UAM FUNDS, INC. II
By: By:
-------------------------------- ----------------------------------
Title: Title:
----------------------------- -------------------------------
Date: Date:
------------------------------ --------------------------------
EXHIBIT D, p. 1
SERVICES
UAM SSC shall be responsible for receiving telephone calls, faxes,
letters and transmissions from shareholders and institutions and processing
transactions generated by such telephone calls, faxes, letters and
transmissions. The general categories of services UAM SSC will be responsible
for performing include but are not limited to:
1. Purchase, redemption and exchange of shares
2. Addition or deletion of services for an account
3. Explanation of fund or market conditions and performance
4. Research account inquiries, respond to such inquiries, and
make any required account corrections
5. Change account address or distribution option
6. Correct registration or account error
7. Send additional account statements or other requested materials
or forms
Without limitation of the foregoing, UAM SSC shall at a minimum perform
the following specific services:
1. Provide Shareholder Support
2. Process "Phone" Transactions
ACH Buys
ACH Sells
Purchase Orders (Settle by Wire or Check)
Redemption Orders (Settle by Wire or Check)
Account Exchanges
3. Process Account Maintenance
4. Problem Research and Resolution
EXHIBIT D, p. 2
SERVICES
5. Prepare Research Documentation for DST
6. All Correspondence Services except for Correspondence
Requiring the Return of Original Documentation received at
DST
7. Institutional Desk Servicing, including but not limited to:
Dealer Servicing
Account Maintenance
Dealer File Maintenance
Transaction Processing
Order Settlement Support
Adjustment Processing Support
NSCC Networking Support
Fund Info/Data Dissemination
8. Redemption by ACH to bank of record
9. Redemption by check to address of record
10. Redemption by wire to bank of record
11. Exchange between funds
12. ACH purchase from bank of record
13. Process purchase order (a.k.a. confirmed purchase)
14. Request stop/replace redemption checks to address of record
15. Research/document/request corrective processing
16. Account Maintenance
Non-Signature Guaranteed address change
Stop/restart/defer a Systematic Monthly Investment (SIP)
Increase/decrease a Systematic Monthly Investment (SIP)
Increase/decrease/defer/discontinue a systematic
withdrawal plan (SWP)
Add a beneficiary birth date
Change dividend/capital gains distribution method
EXHIBIT D, p. 3
SERVICES
Stop dividend mail
Add/change a dividend move
Combine identical accounts within the same funds
Add or delete stop mail from the account
Request stop or replace a redemption check after fifteen
(15) days
Add/change/delete systematic exchanges (SYSEXCH) with the
same registration
Correct minor errors in names on registration if clearly
indicated on the application
Reissue checkwriting drafts on a Cash Reserve account
where the privilege has been established
Link/unlink accounts for the INVESTOR statement product
(managers only)
