TRANSFER AGENCY AGREEMENT
THIS AGREEMENT made the 1st day of January, 1998, by and between
MUTUAL FUND INVESTMENT TRUST, a Massachusetts business trust, having its
principal place of business at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Fund"), and DST SYSTEMS, INC., a Missouri corporation, having its principal
place of business at 000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("DST"):
WITNESSETH:
WHEREAS, the Fund is a Massachusetts business trust registered
with the Securities and Exchange Commission as an investment company pursuant to
the Investment Company Act of 1940, as amended; and
WHEREAS, the Fund wishes to appoint DST as transfer agent and
dividend disbursing agent as to any and all shares issued by the Fund; and
WHEREAS, DST wishes to accept such appointment; and
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 Fund, there will be
filed with DST the following documents:
A. A certified copy of the Votes of the Board of
Trustees of the Fund appointing DST as Transfer
Agent and Dividend Disbursing Agent,
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approving the form of this Agreement, and
designating certain persons to sign stock
certificates, if any, and give written
instructions and requests on behalf of the Fund;
B. A certified copy of the Articles of
Incorporation and all future amendments
affecting the number of authorized shares or
DST's provision of services hereunder;
C. A certified copy of the Bylaws of the Fund;
D. Copies of all current and future Registration
Statements and amendments thereto, filed with
the Securities and Exchange Commission;
E. Specimens of all forms of outstanding stock
certificates, if any;
F. An opinion of counsel for the Fund with respect
to:
(1) Fund's organization and existence under
the laws of its state of organization,
(2) The status of all shares of stock of
Fund 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,
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validly issued, fully paid and
nonassessable.
2. Certain Representations and Warranties of DST. 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 Missouri.
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.
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.
3. Certain Representations and Warranties of the Fund. The
Fund represents and warrants to DST that:
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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.
C. A registration statement under the Securities
Act of 1933 has been filed and is effective with
respect to the shares of the Fund being offered
for sale.
D. All requisite steps have been and, in the
future, will be taken to register the Fund's
shares for sale in applicable states.
E. The Fund is empowered under applicable laws and
by Articles of Incorporation and bylaws to enter
into and perform this Agreement.
4. Scope of Appointment.
A. Subject to the conditions set forth in this
Agreement, effective the 1st day of January,
1998, the Fund hereby employs and appoints DST
as Transfer Agent and Dividend Disbursing Agent
as to all current and future issued and
outstanding shares of the Fund.
B. DST hereby accepts such employment and
appointment and agrees that it will act as the
Fund's Transfer Agent and Dividend Disbursing
Agent. DST agrees that it will
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also act as agent in connection with the Fund's
periodic investment and withdrawal payment
accounts, other open-account and similar plans
for shareholders, if any.
C. DST agrees to provide the necessary facilities,
equipment and personnel to perform its duties
and obligations hereunder in accordance with
industry practice.
D. The Fund agrees to deliver to DST in Kansas
City, Missouri, as soon as they are available,
all of its shareholder account records.
E. Subject to the provisions of Sections 19. and
20. hereof, DST agrees that it will perform all
of the usual and ordinary services of Transfer
Agent and Dividend Disbursing Agent and as Agent
for the various shareholder accounts, including,
without limitation, the following: issuing,
transferring and cancelling stock certificates;
maintaining all shareholder accounts; preparing
shareholder meeting lists, mailing proxies,
receiving and tabulating proxies (outside agency
bills treated as out-of-pocket expenses);
mailing shareholder reports and prospectuses;
withholding taxes on nonresident alien and
foreign corporation
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accounts, for pension and deferred income
accounts for which DST is the named trustee or
custodian, on accounts which DST has been
advised are subject to backup withholding or
other instances agreed upon by the parties;
preparing and mailing checks for disbursement of
income dividends and capital gains
distributions, preparing and filing U.S.
Treasury Department Form 1099 for shareholders
as directed by the Fund; preparing and mailing
confirmation forms to shareholders and dealers
with respect to purchases and liquidation of the
Fund shares and other transactions in
shareholder accounts for which confirmations are
required or as directed by the Fund; recording
reinvestments of dividends and distributions in
Fund shares; and preparing and mailing checks
for payments upon redemption and for
disbursements to withdrawal plan holders.
5. Limit of Authority.
Unless otherwise expressly limited by the resolution of
appointment or by subsequent action by the Fund, the
appointment of DST as Transfer Agent will be construed
to cover the full amount of the Shares of the Fund for
which DST is appointed as the same will, from time to
time, be
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constituted, and any subsequent increases in such
authorized amount.
In case of such increase the Fund will file with DST:
A. If the appointment of DST was theretofore
expressly limited, a certified copy of a Vote of
the Board of Trustees of the Fund increasing the
authority of DST;
B. A certified copy of the amendment to the
Articles of Incorporation authorizing the
increase of shares.
6. Compensation and Expenses.
A. In consideration for its services hereunder as
Transfer Agent and Dividend Disbursing Agent,
the Fund will pay to DST from time to time a
reasonable compensation for all services
rendered as Agent, and also, all its reasonable
out-of-pocket expenses, charges, counsel fees,
and other disbursements incurred in connection
with the agency. Such compensation will be set
forth in a separate schedule to be agreed to by
the Fund and DST, a copy of which is attached
hereto and incorporated herein by reference. If
the Fund has not paid such compensation and
expenses to DST within a reasonable time, and as
permitted by applicable law, DST may
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charge against any monies held under this
Agreement in the Fund's name, the amount of any
compensation, expense, loss or liability for
which DST shall be entitled to reimbursement
under this Agreement.
B. The Fund agrees to promptly reimburse DST for
all reasonable out-of-pocket expenses or
advances incurred by DST in connection with the
performance of services under this Agreement,
for postage (which may be required to be paid in
advance) and first class mail insurance in
connection with mailing stock certificates,
envelopes, check forms, continuous forms, forms
for reports and statements, stationery, and
other similar items, telephone and telegraph
charges incurred in answering or making
inquiries from or of dealers or shareholders,
microfilm used each year to record the previous
year's transactions in shareholder accounts and
computer tapes used for permanent storage of
records and cost of insertion of materials in
mailing envelopes by outside firms.
7. Operation of DST System.
A. In connection with the performance of its
services under this Agreement, DST is
responsible for such items as:
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(1) The accuracy of entries made by DST in
DST's records reflecting orders and
instructions received by DST from
dealers, shareholders, the Fund or its
principal underwriter;
(2) The availability and the accuracy of
shareholder lists, shareholder account
verifications, confirmations and other
shareholder account information to be
produced from its records or data;
(3) The accurate and timely issuance of
dividend and distribution checks in
accordance with instructions received
from the Fund;
(4) The accuracy of redemption transactions
and payments in accordance with
redemption instructions received from
dealers, shareholders or the Fund;
(5) The deposit daily in the Fund's
appropriate bank account of all checks
and payments received directly or
individually from dealers or
shareholders for investment in shares;
(6) The requiring of proper forms of
instructions, signatures and signature
guarantees and any necessary documents
supporting the legality of transfers,
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redemptions and other shareholder
account transactions, all in conformance
with DST's present procedures with such
changes as may be required or approved
by the Fund; and
(7) The maintenance of a current duplicate
set of the Fund's essential records
maintained by DST for the Fund under
this agreement at a secure distant
location.
B. DST is not responsible for and shall have no
liability as a result of or which arises out of
errors, inaccuracies or omissions in the Fund's
books and records as received by DST from the
prior transfer and dividend disbursing agent and
any errors, inaccuracies or omissions in
reports, lists, verifications, confirmations or
other information or data derived or produced
therefrom.
8. Indemnification
A. DST will not be responsible for, and the Fund
will hold harmless and indemnify DST from and
against any loss by or liability to the Fund or
a third party, including attorney's fees, in
connection with any claim or suit asserting any
such liability arising out of
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or attributable to actions taken or omitted by
DST pursuant to this Agreement, unless DST has
acted negligently or in bad faith. The matters
covered by this indemnification include but are
not limited to those of Section 14. hereof and
any costs, including legal fees, incurred in
enforcing this right of indemnification.
The Fund will be responsible for, and will have
the right to conduct or control the defense of
any litigation asserting liability against which
DST is indemnified hereunder. DST will not be
under any obligation to prosecute or defend any
action or suit in respect of the agency
relationship hereunder, which, in its opinion,
may involve it in expense or liability, unless
the Fund will, as often as requested, furnish
DST with reasonable, satisfactory security and
indemnity against such expense or liability and
pay all costs, including attorney's fees, as
incurred.
B. DST will hold harmless and indemnify the Fund
from and against any loss or liability arising
out of DST's failure to comply with the terms of
this Agreement or out of DST's negligence,
misconduct, or bad faith, except
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to the extent DST is entitled to indemnification
under Subsection A. hereof
9. Certain Covenants of DST and the Fund.
A. The Fund hereby agrees that 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 attached hereto as
Exhibit A and establish and maintain facilities
and procedures reasonably acceptable to the Fund
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
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and devices, and to carry such insurance as
specified in Exhibit B.
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 Fund and will be preserved and
will be surrendered promptly to the Fund on
request. The Fund will be responsible for the
costs of storing and retrieving such records.
D. DST agrees to furnish the Fund annual reports of
its financial condition, consisting of a balance
sheet, earnings statement and any other public
financial information reasonably requested by
the Fund. The annual financial statements will
be certified by DST's certified public
accountants.
E. DST represents and agrees that it will use its
best efforts to keep current on the trends of
the investment company industry relating to
transfer agent services and will use its best
efforts to continue to modernize and improve its
system without additional cost to the Fund.
Notwithstanding the foregoing, (i) DST shall not
be liable for
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failing to make any modification or improvement
as to the necessity which the Fund has not
advised DST in writing; (ii) for any delay in
the implementation of such modification or
improvement where DST reasonably required more
time than was permitted by circumstances or
regulations; and (iii) the Fund may be charged
for utilization of any modification or
improvement if utilization of such modification
or improvement is charged to DST's clients
generally, and provided such modification or
improvement is utilized to provide services to
the Fund hereunder.
F. DST will permit the Fund and its authorized
representatives to make periodic inspections of
its operations as such would involve the Fund at
reasonable times during business hours, subject
to such authorized representatives' execution of
DST's Confidentiality and Limited Use Agreement.
10. Recapitalization or Readjustment. In case of any
recapitalization, readjustment or other change in the
capital structure of the Fund requiring a change in the
form of share certificates, DST will issue or register
certificates in the new form in exchange for, or
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in transfer of, the outstanding certificates in the old
form, upon receiving:
A. Written instructions from an officer of the
Fund;
B. Certified copy of the amendment to the Articles
of Incorporation or other document effecting the
change;
C. 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. Specimens of the new certificates in the form
approved by the Board of Trustees of the Fund,
with a certificate of the Clerk of the Fund as
to such approval;
E. Opinion of counsel for the Fund stating:
(1) The status of the shares of stock of the
Fund in the new form under the
Securities Act of 1933, as amended and
any other applicable federal or state
statute; and
(2) That the issued shares in the new form
are, and all unissued shares will be,
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when issued, validly issued, fully paid
and nonassessable.
11. Stock Certificates.
The Fund will furnish DST with a sufficient supply of
blank stock certificates and from time to time will
renew such supply upon the request of DST. Such
certificates will be signed manually or by facsimile
signatures of the officers of the Fund authorized by law
and by bylaws to sign share certificates, and if
required, will bear the Funds's seal or facsimile
thereof.
12. Death, Resignation or Removal of Signing Officer.
The Fund will file promptly with DST written notice of
any change in the officers authorized to sign share
certificates, written instructions or requests, together
with two signature cards bearing the specimen signature
of each newly authorized officer. In case any officer of
the Fund who will have signed manually or whose
facsimile signature will have been affixed to blank
share certificates will die, resign, or be removed prior
to the issuance of such certificates, DST may issue or
register such share certificates as the share
certificates of the Fund notwithstanding such death,
resignation, or removal, until specifically directed to
the contrary by the Fund in writing. In the absence
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of such direction, the Fund will file promptly with DST
such approval, adoption, or ratification as may be
required by law.
13. Future Amendments of Articles of Incorporation and
Bylaws.
The Fund will promptly file with DST copies of all
material amendments to its Articles of Incorporation or
bylaws made after the date of this Agreement.
14. Instructions, Opinion of Counsel and Signatures.
Except as otherwise provided for in a written memorandum
signed by both parties hereto, at any time DST may apply
to any officer of the Fund or The Chase Manhattan Bank
("Chase") for instructions, and if such instructions are
not received within a reasonable time following
subsequent notification with the Fund's Chief Executive
Officer, then DST may consult with legal counsel for the
Fund or its own legal counsel at the expense of the
Fund, 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 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
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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 Fund. It will also be
protected in recognizing share certificates which it
reasonably believes to bear the proper manual or
facsimile signatures of the officers of the Fund, and
the proper countersignature of any former Transfer Agent
or Registrar, or of a co-Transfer Agent or co-Registrar.
15. Papers Subject to Approval of Counsel.
The acceptance by DST, of its appointment as Transfer
Agent and Dividend Disbursing Agent and all documents
filed in connection with such appointment and thereafter
in connection with the agencies, will be subject to the
approval of legal counsel for DST (which approval will
be not unreasonably withheld).
16. Certification of Documents.
The required copy of the Articles of Incorporation of
the Fund and copies of all amendments thereto may be
duplicates of the original certified by the Secretary of
State (or other appropriate official) of the
Commonwealth of Massachusetts. The copy of the Bylaws,
copies of all amendments thereto, and copies of
resolutions or Votes of the Board of Trustees of the
Fund, will be certified by the
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Clerk or an Assistant Clerk of the Fund under the
Fund's seal, if any.
17. 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.
18. Disposition of Books, Records and Cancelled
Certificates. DST may send periodically to the Fund, or
to where designated by the Clerk or an Assistant Clerk
of the Fund, all books, documents, and all records no
longer deemed by it as needed for current purposes and
stock certificates which have been cancelled in transfer
or in exchange. At a minimum all such records will be
maintained for the periods required by applicable law
and under and in compliance with the requirements of 17
C.F.R. Section 240.17Ad-7(g), adopted under the
Securities and Exchange Act of 1934.
19. Provisions Relating to DST as Transfer Agent.
A. DST will make original issues of stock
certificates upon written request of an officer
of the Fund and upon being furnished with a
certified copy of a resolution of the Board of
Directors authorizing such original
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issue, an opinion of counsel as outlined in
paragraphs 1.D. and G. of this Agreement, any
documents required by paragraphs 5. or 10. of
this Agreement, and necessary funds for the
payment of any original issue tax.
B. Before making any original issue of certificates
the Fund will furnish DST with sufficient funds
to pay all required taxes on the original issue
of the stock, if any. The Fund will furnish DST
such evidence as may be required by DST to show
the actual value of the stock. If no taxes are
payable DST will be furnished with an opinion of
outside counsel to that effect.
C. Stock certificates will be transferred and new
certificates issued in transfer, or stock
certificates accepted for redemption and funds
remitted therefor, upon surrender of the old
certificates in form deemed by DST properly
endorsed for transfer or redemption accompanied
by such documents as DST may deem necessary to
evidence that authority of the person making the
transfer or redemption, and bearing satisfactory
evidence of the payment of any applicable
transfer taxes. DST reserves the right to refuse
to transfer or redeem shares until it is
satisfied that the
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endorsement or signature on the Certificate or
any other document is valid and genuine, and for
that purpose it may require a guarantee of
signature by a bank, broker or dealer, municipal
securities dealer or broker, government
securities dealer or broker, credit union,
national securities exchange, registered
securities association, clearing agency, savings
association (including savings bank and savings
and loan) or any entity which affixes a
medallion which reasonably appears to be that of
a Signature Guarantee Program (collectively an
"Eligible Guarantor Institution"). DST will
incur no liability and shall be indemnified and
held harmless by the Fund for any action taken
by it in accordance with an instruction bearing
what purports to be a signature guarantee or
medallion of an Eligible Guarantor Institution
or otherwise in accordance with DST's Signature
Guarantee Procedures adopted pursuant to 17
C.F.R. Section 240.17Ad-15 under the Securities
and Exchange Act of 1934. 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
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incur no liability and shall be indemnified and
held harmless by the Fund 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 Simplification Acts or
other statutes which protect it and the Fund 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, provided that such
loss could not have been prevented by the
exercise of ordinary diligence. DST will be
under no duty to use a greater degree of
diligence by reason of not having such records.
D. When mail is used for delivery of stock
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.
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E. DST will issue and mail subscription warrants,
certificates representing dividends, exchanges
or split ups, or act as Conversion Agent upon
receiving written instructions from any officer
of the Fund and such other documents as DST
deems necessary.
F. DST will issue, transfer, and split up
certificates and will issue certificates
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 Fund and such other documents as DST may
deem necessary.
G. 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 Fund and
indemnity satisfactory to DST and the Fund, and
may issue new certificates in exchange for, and
upon surrender of, mutilated certificates.
H. DST will supply a shareholder's list to the Fund
for one meeting of shareholders upon receiving a
request therefor from an officer of the Fund. It
will also supply lists at such other times as
may be requested by an
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officer of the Fund, but may, in its discretion,
charge therefor.
I. Upon receipt of written instructions of an
officer of the Fund, DST will address and mail
notices to shareholders.
J. In case of any request or demand for the
inspection of the shareholder records of the
Fund or any other books in the possession of
DST, DST will endeavor to notify the Fund and
endeavor to secure instructions as to permitting
or refusing such inspection. DST reserves the
right, however, to exhibit the shareholder
records 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
shareholder records or other books to such
person.
20. Provisions Relating to Dividend Disbursing Agency.
A. DST will, at the expense of the Fund, provide a
special form of check containing the imprint of
any device or other matter desired by the Fund.
Said checks must, however, be of a form and size
convenient for use by DST.
B. If the Fund desires to include additional
printed matter, financial statements, etc., with
the dividend checks, the same will be furnished
DST within a reasonable time prior
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to the date of mailing of the dividend checks,
at the expense of the Fund.
C. If the Fund 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 Fund; 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 Fund (prior
to mailing if so requested by DST).
D. DST will maintain one or more deposit accounts
as Agent for the Fund, into which the funds for
payment of dividends, distributions, redemptions
or other disbursements provided for hereunder
will be deposited, and against which checks will
be drawn.
E. DST is authorized and directed op payment
of checks 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
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beyond their control, and cannot be produced by
them for presentation and collection, and, to
issue and deliver duplicate checks in
replacement thereof. DST shall bear no liability
if payment upon stopped checks is subsequently
compelled by a Holder in Due Course (or a Bona
Fide Purchaser for Value) .
21. Assumption of Duties By the Fund. The Fund or its agent
or affiliate may assume certain duties and
responsibilities of DST or those usual and ordinary
services of Transfer Agent and Dividend Disbursement
Agent as those terms are referred to in Section 4.E. of
this Agreement including but not limited to accepting
shareholder instructions and transmitting orders based
on such instructions to DST, preparing and mailing
confirmations, obtaining certified TIN numbers,
answering telephones, and disbursing monies of the Fund.
To the extent the Fund or its agent or affiliate assumes
such duties and responsibilities, DST shall be relieved
from all responsibility and liability therefor.
22. Termination of Agreement.
A. This Agreement may be terminated by either party
upon receipt of six (6) months prior written
notice from the other party.
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B. The Fund, 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:
(1) Any interruption or cessation of
operations by DST or its assigns which
materially interferes with the business
operation of the Fund;
(2) The bankruptcy of DST or its assigns or
the appointment of a receiver for DST or
its assigns;
(3) Any merger, consolidation or sale of
substantially all the assets of DST or
its assigns;
(4) The acquisition of a controlling
interest in DST or its assigns, by any
broker, dealer, investment adviser or
investment company except as may
presently exist; or
(5) Failure by DST or its assigns to perform
its duties in accordance with the
Agreement, which failure materially
adversely affects the business
operations of the Fund and which failure
continues for thirty (30) days after
receipt of written notice from the Fund.
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C. In the event of termination, the Fund will
promptly pay DST all amounts due to DST
hereunder.
D. In the event of termination, DST will use its
best efforts to transfer the books and records
of the Fund to the designated successor transfer
agent and to provide other information relating
to its service provided hereunder for reasonable
compensation therefore. In this connection,
DST's conversion assistance shall be billed at
its then current rates. DST's present rates are:
(i) for clerical assistance, __________ dollars
($__________) per hour; (ii) for
Supervisor/Manager assistance, __________
dollars ($__________) per hour; and (iii) for
programming assistance, to the extent DST agrees
thereto, __________ ($__________), __________
($__________) and __________ ($__________)
dollars per hour for non-technical, mainframe
and work station personnel.
E. Nothing herein is intended to, nor does it,
compel DST to disclose non-public information or
to provide programming assistance or information
which might tend to improve,
29
enhance or add functionality to anyone else's
operating systems, respectively.
23. Assignment.
A. Neither this Agreement nor any rights or
obligations hereunder may be assigned by either
party hereto without the written consent of the
other party. In the event of a mutually agreed
to assignment, each party shall remain liable
for the performance of its assignee(s). DST may,
however, employ agents to assist it in
performing its duties hereunder. Notwithstanding
anything herein to the contrary, DST shall have
no responsibility or liability hereunder for
services provided or omissions to provide by
unaffiliated, nationally recognized third
parties such as federal Express, Airborne
Services, UPS, the U.S. Mails,
telecommunications companies, etc.
B. This Agreement will inure to the benefit of and
be binding upon the parties and their respective
successors and assigns.
24. Confidentiality.
A. DST agrees that, except as provided in the last
sentence of Section 19.H hereof, or as otherwise
required by law, DST will keep confidential all
records of and information
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in its possession relating to 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 Fund.
B. The Fund agrees to keep confidential all
financial statements and other financial records
(other than statements and records relating
solely to the Fund's business dealings with 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. The Fund acknowledges that DST and DST have
proprietary rights in and to the computerized
data processing recordkeeping system used by DST
to perform services hereunder including, but not
limited to the maintenance of shareholder
accounts and records, processing of related
information and generation of output (the "MFS
System"), including, without limitation any
changes or modifications of the MFS System and
any other DST or DST programs, data bases,
supporting documentation, or procedures
("collectively
31
DST Protected Information") which the Fund's
access to the MFS 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 Protected Information constitutes
confidential material and trade secrets of DST.
The Fund agrees to maintain the confidentiality
of the DST Protected Information. The Fund
acknowledges that any unauthorized use, misuse,
disclosure or taking of DST Protected
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 Fund will advise all
of its employees and agents who have access to
any DST Protected Information or to any computer
equipment capable of accessing DST or DST
hardware or software of the foregoing. DST is
intended to be, and shall be, a third party
beneficiary of the Fund's
32
obligations and undertakings contained in this
Section.
25. Survival of Representations and Warranties,
Indemnifications and Miscellaneous Provisions.
A. All representations and warranties by either
party herein contained will survive the
execution and delivery of this Agreement.
B. All indemnifications and undertakings of (i)
confidential treatment of the other's
information, data, systems, materials, etc. and
(ii) of non-solicitation and non-employment of
employees of the other (and of affiliates of the
other) shall survive the termination of this
agreement.
26. Miscellaneous.
A. This Agreement is executed and delivered in the
State of Missouri and is intended to be and
shall be governed by the laws of said state.
B. All the terms and provisions of this Agreement
shall be binding upon, inure to the benefit of,
and be enforceable by the respective successor
and assigns of the parties hereto.
C. No provisions of the Agreement may be amended or
modified, in any manner except by a
33
written agreement properly authorized and
executed by both parties hereto.
D. 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.
E. This Agreement may be executed simultaneously 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.
F. 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.
G. The obligations of this Agreement shall only be
binding upon the assets and property of the Fund
and shall not be binding upon any Director,
officer or shareholder of the Fund individually.
34
H. Each party hereto agrees not to offer employment
to, solicit employment by or employ any employee
of the other or, in the case of DST, of the Fund
and its affiliated companies or, in the case of
the Fund, of DST or DST or either of their
affiliated companies. For purposes hereof, an
"affiliated company" shall be any entity which
directly or indirectly controls, is controlled
by or is under common control with the Fund or
payment thereof to DST and for internally
determining the appropriate allocation thereof
among the Portfolios.
I. Notice is hereby given that a copy of the Fund's
Agreement and Declaration of Trust 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
Fund by the undersigned duly authorized
representative of the Fund 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 Fund
and shall not be binding upon any trustee,
officer or shareholder of the Fund individually.
35
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officers.
DST SYSTEMS, INC.
By:
---------------------------------------
ATTEST:
------------------------------
MUTUAL FUND INVESTMENT TRUST
By:
---------------------------------------
Title:
------------------------------------
ATTEST:
------------------------------
Secretary
36
EXHIBIT A
TRANSFER AGENCY SERVICES AND SYSTEMS FEATURES
FUNCTIONS
A. Issuance of stock certificates
B. Recording of non-certificate shares
C. Purchase, redemptions, exchanges, transfers and legal
D. Changes of address, etc.
E. Daily balancing of the Fund
F. Dividend calculation and disbursement
G. Mailing of quarterly and annual reports, if requested
H. Filing of 1099/1042 information to shareholders and
government
I. Provide N1R information
[J. Systematic withdrawal plans]
K. Pre-authorized checks
L. Purchase reminders
M. Reconcilement of dividend and disbursement accounts
N. Provide research and correspondence to shareholder's
inquiries
O. Daily communication of reports to the Fund
P. Provide listings, labels and other special reports
Q. Proxy issuance and tabulation
R. Annual statements of shareholders on microfilm
S. Blue-sky reports
T. Wire order processing
U. 12b-1 processing
37
EXHIBIT B
INSURANCE COVERAGE
Insurance coverages maintained by DST effective May 1, 1993, subject to
deductibles
DESCRIPTION OF POLICY:
Brokers Blanket Bond, Standard form 14
Covering losses caused by dishonesty of employees, physical
loss of securities on or outside of premises while in
possession of authorized person, loss caused by forgery or
alteration of checks or similar instruments.
Coverage: $75,000,000
Errors and Omissions Insurance
Covering replacement of destroyed records and computer errors
and omissions.
Coverage. $10,000,000
Special Forgery Bond
Covering losses through forgery or alteration of checks or
drafts of customers processed by insured but drawn on or
against them.
Coverage: $1,000,000
Mail Insurance (apples to all full service operations)
Provides indemnity for security lost in the mails.
Coverage:
$10,000,000 nonnegotiable securities mailed
to domestic locations via registered mail.
38
$1,000,000 nonnegotiable securities mailed
to domestic locations via first-class or
certified mail.
$1,000,000 nonnegotiable securities mailed
to foreign locations via registered mail.
$1,000,000 negotiable securities mailed to
all locations via registered mail.
