AGENCY AGREEMENT
THIS AGREEMENT made the 30th day of September 30, 2004, by and between
Constellation Funds a corporation existing under the laws of the State of
Delaware, having its principal place of business at 0000 Xxxxxxxxx Xxxxx, Xxxxx
000, Xxxxxx, XX (the "Fund"), 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 Fund desires to appoint DST as Transfer Agent and
Dividend Disbursing Agent, and DST desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Documents to be Filed with Appointment.
In connection with the appointment of DST as Transfer Agent and
Dividend Disbursing Agent for the Fund, there will be filed with DST
the following documents:
A. A certified copy of the resolutions of the Board of Directors
of the Fund appointing DST as Transfer Agent and Dividend
Disbursing Agent, 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 of the Fund
and all amendments thereto;
C. A certified copy of the Bylaws of the Fund;
D. Copies of Registration Statements and amendments thereto,
filed with the Securities and Exchange Commission.
E. Specimens of all forms of outstanding stock certificates, in
the forms approved by the Board of Directors of the Fund, with
a certificate of the Secretary of the Fund, as to such
approval;
F. Specimens of the signatures of the officers of the Fund
authorized to sign stock certificates and individuals
authorized to sign written instructions and requests;
G. An opinion of counsel for the 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, and any other applicable federal or state
statute, and
(3) That all issued shares are, and all unissued shares will
be, when issued, validly issued, fully paid and
nonassessable.
2. Certain Representations and Warranties of DST.
DST represents and warrants to the 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.
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:
A. It is a corporation duly organized and existing and in good
standing under the laws of the State of Delaware.
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 will be effective with respect to all shares of
the Fund being offered for sale.
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D. All requisite steps have been and will continue to be taken to
register the 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.
E. The Fund is empowered under applicable laws and by its
charter and Bylaws to enter into and perform this Agreement.
4. Scope of Appointment.
A. Subject to the conditions set forth in this Agreement, the
Fund hereby appoints DST as Transfer Agent and Dividend
Disbursing Agent.
B. DST hereby accepts such appointment and agrees that it will
act as the Fund's Transfer Agent and Dividend Disbursing
Agent. DST agrees that it will also act as agent in connection
with the Fund's periodic withdrawal payment accounts and other
open accounts or similar plans for shareholders, if any.
C. The Fund agrees to use its reasonable efforts to deliver to
DST in Kansas City, Missouri, as soon as they are available,
all of its shareholder account records.
D. DST, utilizing TA2000(TM), DST's computerized data processing
system for securityholder accounting (the "TA2000 System"),
will perform the following services as transfer and dividend
disbursing agent for the Fund, and as agent of the Fund for
shareholder accounts thereof, in a timely manner: (i) issuing
(including countersigning), transferring and canceling share
certificates; (ii) maintaining on the TA2000 System
shareholder accounts; (iii) accepting and effectuating the
registration and maintenance of accounts through Networking
and the purchase, redemption, transfer and exchange of shares
in such accounts through Fund/SERV (Networking and Fund/SERV
being programs operated by the National Securities Clearing
Corporation ("NSCC") on behalf of NSCC's participants,
including the Funds), in accordance with instructions
transmitted to and received by DST by transmission from NSCC
on behalf of broker-dealers and banks which have been
established by, or in accordance with the instructions of, an
Authorized Person, as hereinafter defined, on the Dealer File
maintained by DST; (iv) issuing instructions to the Funds'
banks for the settlement of transactions between the Funds and
NSCC (acting on behalf of its broker-dealer and bank
participants); (v) providing account and transaction
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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) once annually preparing shareholder meeting
lists for use in connection with the annual meeting 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
management company; (xiv) maintaining those records necessary
to carry out DST's duties hereunder, including all
information reasonably required by the Fund to account for all
transactions in the Fund 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
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instructions of an Authorized Person; (xvii) processing,
generally on the date of receipt, purchases or redemptions or
instructions to settle any mail or wire order purchases or
redemptions received in proper order as set forth in the
prospectus, rejecting promptly any requests not received in
proper order (as defined by an Authorized Person or the
Procedures as hereinafter defined), and causing exchanges of
shares to be executed in accordance with the instructions of
Authorized Persons, the applicable prospectus and the general
exchange privilege applicable; (xviii) providing to the person
designated by an Authorized Person the daily Blue Sky reports
generated by the Blue Sky module of TA2000 with respect to
purchases of shares of the Funds on TA2000; and (xix)
providing to the Fund escheatment reports as requested by an
Authorized Person with respect to the status of accounts and
outstanding checks on TA2000.
E. At the request of an Authorized Person, DST shall use
reasonable efforts to provide the services set forth in
Section 4.D. in connection with transactions (i) on behalf of
retirement plans and participants in retirement plans and
transactions ordered by brokers as part of a "no transaction
fee" program ("NTF"), the processing of which transactions
require DST to use methods and procedures other than those
usually employed by DST to perform shareholder servicing agent
services, (ii) involving the provision of information to DST
after the commencement of the nightly processing cycle of the
TA2000 System or (iii) which require more manual intervention
by DST, either in the entry of data or in the modification
or amendment of reports generated by the TA2000 System than
is usually required by non-retirement plan, non-NTF and
pre-nightly transactions, (the "Exception Services").
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
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features and functions currently provided by the TA2000 System
or the operations as requested by the Fund requires an
enhancement or modification to the TA2000 System or to
operations as presently conducted by DST, DST shall not be
liable therefore until such modification or enhancement is
installed on the TA2000 System or new mode of operation is
instituted. If any new, additional function or feature or
change or improvement to existing functions or features or new
service or mode of operation measurably increases DST's cost
of performing the services required hereunder at the current
level of service, DST shall advise the Fund of the amount of
such increase and if the Fund 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 Fund shall add new series to the TA2000 System upon at
least thirty (30) days' prior written notice to DST provided
that the requirements of the new series are generally
consistent with services then being provided by DST under this
Agreement. Rates or charges for additional series shall be as
set forth in Exhibit A, as hereinafter defined, for the
remainder of the contract term except as such series use
functions, features or characteristics for which DST has
imposed an additional charge as part of its standard pricing
schedule. In the latter event, rates and charges shall be in
accordance with DST's then-standard pricing schedule.
5. Limit of Authority.
Unless otherwise expressly limited by the resolution of appointment or
by subsequent action by the 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 Fund will file with DST:
A. 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;
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B. A certified copy of the amendment to the Articles of
Incorporation of the Fund authorizing the increase of stock;
C. A certified copy of the order or consent of each governmental
or regulatory authority required by law to consent to the
issuance of the increased stock, and an opinion of counsel
that the order or consent of no other governmental or
regulatory authority is required;
D. Opinion of counsel for the Fund stating:
(1) The status of the additional shares of stock of the
Fund under the Securities Act of 1933, as amended, and
any other applicable federal or state statute; and
(2) That the additional shares are, or when issued will
be, validly issued, fully paid and nonassessable.
6. Compensation and Expenses.
A. In consideration for its services hereunder as Transfer Agent
and Dividend Disbursing Agent, the Fund will pay to DST from
time to time a reasonable compensation for all services
rendered as Agent, and also, all its reasonable billable
expenses, charges, counsel fees, and other disbursements
("Compensation and Expenses") incurred in connection with the
agency. Such compensation is set forth in a separate schedule
to be agreed to by the Fund and DST, a copy of which is
attached hereto as Exhibit A. If the Fund has not paid such
Compensation and Expenses to DST within a reasonable time, DST
may charge against any monies held under this Agreement, the
amount of any Compensation and/or Expenses for which it shall
be entitled to reimbursement under this Agreement.
B. The Fund 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, outside printing and
mailing firms (including Output Technology, Inc. and Support
Resources, Inc.), magnetic tapes, reels or cartridges (if sent
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to the Fund or to a third party at the Fund'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 Fund's request at the Fund'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, and National Securities Clearing
Corporation ("NSCC") transaction fees to the extent any of the
foregoing are paid by DST. The Fund 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 Fund will be promptly reimbursed by
the Fund.
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 Fund (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 percent
(1.5%) per month times the amount overdue times the number of
months from the Due Date up to and including the day on which
payment is received by DST. The parties hereby agree that such
late charge represents a fair and reasonable computation of
the costs incurred by reason of late payment or payment of
amounts not properly due. Acceptance of such late charge shall
in no event constitute a waiver of the 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 Fund shall, on
or before the Due Date, pay all undisputed amounts due
hereunder and notify DST in writing of any disputed charges
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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 Fund documentation which an
objective observer would agree reasonably supports the
disputed charges (the "Revised Due Date"). Late charges shall
not begin to accrue as to charges disputed in good faith until
the first business day after the Revised Due Date.
E. The fees and charges set forth on Exhibit A shall increase or
may be increased as follows:
(1) On the first day of each new term, in accordance with
the "Fee Increases" provision in Exhibit A;
(2) DST may increase the fees and charges set forth on
Exhibit A upon at least ninety (90) days prior
written notice, if changes in existing laws, rules or
regulations: (i) require substantial system
modifications or (ii) materially increase cost of
performance hereunder;
(3) DST may charge for additional features of TA2000 used
by the Fund which features are not consistent with
the Fund's current processing requirements; and
(4) In the event DST, at the Fund's request or
direction, performs Exception Services, DST shall be
entitled to increase the fees and charges for such
Exception Services from those set forth on Exhibit A
to the extent such Exception Services increase DST's
cost of performance.
If DST notifies the Fund 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 Fund'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 notifies the Fund of an increase in fees or charges
under subparagraphs (3) or (4) of this Section 6.E., the parties shall
confer, diligently and in good faith, and agree upon a new fee to cover
such new fund feature.
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7. Operation of DST System.
In connection with the performance of its services under this Agreement, DST is
responsible for such items as:
A. That entries in DST's records, and in the 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, or the Fund's administrator
(each an "Authorized Person"), broker-dealers or shareholders;
B. That shareholder lists, shareholder account verifications,
confirmations and other shareholder account information to be
produced from its records or data be available and accurately
reflect the data in the 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 Fund
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 ofs" adjustments, DST will not assume one hundred
percent (100%) responsibility for losses resulting from "as
of" due to clerical errors or misinterpretations of
shareholder instructions, but DST will discuss with the Fund
DST's accepting liability for an "as of" on a case-by-case
basis and may accept financial responsibility for a particular
situation resulting in a financial loss to the Fund where such
loss is "material", as hereinafter defined, and, under the
particular facts at issue, DST in its discretion believes
DST's conduct was culpable and DST's conduct is the sole cause
of the loss. A loss is "material" for purposes of this Section
7.F. when it results in a pricing error on a given day which
is (i) greater than a negligible amount per shareholder, (ii)
equals or exceeds one ($.01) full cent per share times the
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number of shares outstanding or (iii) equals or exceeds the
product of one-half of one percent (1/2) times Fund's Net
Asset Value per share times the number of shares outstanding
(or, in case of (ii) or (iii), such other amounts as may be
adopted by applicable accounting or regulatory authorities
from time to time). When DST concludes that it should
contribute to the settlement of a loss, DST's responsibility
will commence with that portion of the loss over $0.01 per
share calculated on the basis of the total value of all shares
owned by the affected portfolio (i.e., on the basis of the
value of the shares of the total portfolio, including all
classes of that portfolio, not just those of the affected
class);
G. The requiring of proper forms of instructions, signatures and
signature guarantees and any necessary documents supporting
the opening of shareholder accounts, transfers, redemptions
and other shareholder account transactions, all in conformance
with DST's present procedures as set forth in its Legal
Manual, Third Party Check Procedures, Checkwriting Draft
Procedures, and Signature Guarantee Procedures (collectively
the "Procedures") with such changes or deviations therefrom as
may be from time to time required or approved by the Fund, its
investment adviser or principal underwriter, or its or DST's
counsel and the rejection of orders or instructions not in
good order in accordance with the applicable prospectus or the
Procedures;
H. The maintenance of customary records in connection with its
agency, and particularly those records required to be
maintained pursuant to subparagraph (2)(iv) of paragraph (b)
of Rule 31a-1 under the Investment Company Act of 1940, if
any; and
I. The maintenance of a current, duplicate set of 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.
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
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Transfer Agent in accordance with Section 17A of the
Securities Exchange Act of 1934, and the rules and regulations
thereunder. In the absence of bad faith, willful misconduct,
knowing violations of applicable law pertaining to the manner
in which transfer agency services are to be performed by DST
(excluding any violations arising directly or indirectly out
of the actions or omissions to act of third parties
unaffiliated with DST), reckless disregard of the performance
of its duties, or negligence on its part, DST shall not be
1iable for any action taken, suffered, or omitted by it or
for any error of judgment made by it in the performance of its
duties under this Agreement. For those activities or actions
delineated in the Procedures, DST shall be presumed to have
used reasonable care, due diligence and acted in good faith if
it has acted in accordance with the Procedures, copies of
which have been provided to the Fund and reviewed and approved
by the Fund's counsel, as amended from time to time with
approval of counsel, or for any deviation therefrom approved
by the Fund or DST counsel.
B. DST shall not be responsible for, and the Fund shall indemnify
and hold DST harmless from and against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and
liability which may be asserted against DST or for which DST
may be held to be liable, 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 Fund's refusal or failure to comply with the
terms of this Agreement, the Fund's negligence or
willful misconduct, or the breach of any
representation or warranty of the Fund hereunder;
(3) The good faith reliance on, or the carrying out of,
any written or oral instructions or requests of
persons designated by the Fund in writing (see
Exhibit E) 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 Fund, its investment advisor, its
sponsor or its principal underwriter;
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(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 Fund or of any officer of the
Fund that no offers or sales be permitted to remain
in the Fund's securityholder records in or to
residents of such state);
(6) 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 Fund
or its prior agent(s);
(8) Actions or omissions to act by the Fund or agents
designated by the Fund with respect to duties assumed
thereby as provided for in Section 21 hereof;
(9) DST's performance of Exception Services except where
DST acted or omitted to act in bad faith, with
reckless disregard of its obligations or with gross
negligence; and
(10) Any inaccuracies in dates in Fund's shareholder
information or history as converted, or any (i)
difficulties or inability of DST or any third party
to manipulate or process date data, or (ii) lack of
functionality (including any errors resulting from
the "windowing" (currently 1950 to 2049) of client's
historical records or non-Year 2000 complaint data
provided to DST by third parties) which, in case of
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(i) or (ii) above, arises out of or results from the
failure of Fund's records to contain date data
feeds in an eight digit, full century format, or
any other such Year 2000 complaint format for data
feeds specified from time to time by DST.
C. Except where DST is entitled to indemnification under Section
8.B. hereof and with respect to "as ofs" set forth in Section
7.F., DST shall indemnify and hold the Fund harmless from and
against any and all losses, damages, costs, charges, 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; provided, however, that DST's cumulative liability
during any term of this Agreement with respect to, arising
from or arising in connection with this Agreement, or from all
services provided or omitted to be provided under this
Agreement, whether in contract, or in tort, or otherwise, is
limited to, and shall not exceed, the amounts paid hereunder
by the Fund to DST as fees and charges, but not including
reimbursable expenses, during the six (6) months immediately
preceding the event giving rise to DST's liability.
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. 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
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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
15
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. above 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 and devices, and to carry such insurance
as it considers adequate and reasonably available.
C. To the extent required by Section 31 of the Investment Company
Act of 1940 as amended and Rules thereunder, DST agrees that
all records maintained by DST relating to the services to be
performed by DST under this Agreement are the property of the
Fund and will be preserved and will be surrendered promptly to
the Fund on request.
D. DST agrees to furnish the Fund annual reports of its financial
condition, consisting of a balance sheet, earnings statement
and any other 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 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.
16
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.
G. DST agrees to use its reasonable efforts to provide in
Kansas City at the Fund's expense two (2) man weeks of
training for the Fund's personnel in connection with use and
operation of the TA2000 System. All travel and
reimbursable expenses incurred by the Fund's personnel in
connection with and during training at DST's Facility shall be
borne by the Fund. At the Fund's option and expense, DST also
agrees to use its reasonable efforts to provide an additional
two (2) man weeks of training at the Fund's facility for the
Fund's personnel in connection with the conversion to the
TA2000 System. Reasonable travel, per diem and reimbursable
expenses incurred by DST personnel in connection with and
during training at the Fund's facility or in connection with
the conversion shall be borne by the Fund.
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 stock
certificates, DST will issue or register certificates in the new form
in exchange for, or 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
stock 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 Directors of the Fund, with a certificate of the
Secretary of the Fund as to such approval;
E. Opinion of counsel for the Fund stating:
17
(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, when issued, validly issued,
fully paid and nonassessable.
11. Stock Certificates.
[STRIKE IF THE FUND WILL NOT ISSUE 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 stock
certificates, and if required, will bear the corporate 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 stock 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 stock certificates will die,
resign, or be removed prior to the issuance of such certificates, DST
may issue or register such stock certificates as the stock
certificates of the Fund notwithstanding such death, resignation, or
removal, until specifically directed to the contrary by the Fund in
writing. In the absence 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 Charter 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.
At any time DST may apply to any person authorized by the Fund to give
instructions to DST, and may with the approval of a Fund officer
consult with legal counsel for the Fund, or DST's 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
18
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 Fund. It will also be protected in
recognizing stock 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. 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 or
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, tornados, acts of God or public enemy,
revolutions, or insurrection; or any other cause, contingency,
circumstance or delay not subject to DST's reasonable control
which prevents or hinders DST's performance hereunder.
B. DST currently maintains an agreement with a third party
whereby DST is to be permitted to use on a "shared use" basis
a "hot site" (the "Recovery Facility") maintained by such
party in event of a disaster rendering the DST Facilities
inoperable. DST has developed and is continually revising a
business contingency plan (the "Business Contingency Plan")
detailing which, how, when, and by whom data maintained by DST
at the DST Facilities will be installed and operated at the
Recovery Facility. Provided the Fund is paying its pro rata
portion of the charge therefor, DST would, in event of a
disaster rendering the DST Facilities inoperable, use
reasonable efforts to convert the TA2000 System containing the
designated the Fund data to the computers at the Recovery
Facility in accordance with the then current Business
Contingency Plan.
19
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 operations to other operating areas or to the
Crisis Management Center is also covered in DST's Business
Contingency Plan.
16. Certification of Documents.
The required copy of the Articles of Incorporation of the Fund and
copies of all amendments thereto will be certified by the Secretary of
State (or other appropriate official) of the State of Incorporation,
and if such Articles of Incorporation and amendments are required
by law to be also filed with a county, city or other officer of
official body, a certificate of such filing will appear on the
certified copy submitted to DST. A copy of the order or consent of
each governmental or regulatory authority required by law to the
issuance of the stock will be certified by the Secretary or Clerk of
such governmental or regulatory authority, under proper seal of such
authority. The copy of the Bylaws and copies of all amendments
thereto, and copies of resolutions of the Board of Directors of the
Fund, will be certified by the Secretary or an Assistant Secretary of
the Fund under the Fund's seal.
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 Canceled Certificates.
DST may send periodically to the Fund, 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 and stock
certificates which have been canceled in transfer or in exchange, upon
the understanding that such books, documents, records, and stock
certificates will be maintained by the Fund under and in accordance
with the requirements of Section 17Ad-7 adopted under the Securities
20
Exchange Act of 1934, including by way of example and not limitation
Section 17Ad-7(g) thereof. Such materials will not be destroyed by the
Fund without the consent of DST (which consent will not be
unreasonably withheld), but will be safely stored for possible future
reference.
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 issue, an opinion of
counsel as outlined in subparagraphs 1.D. and G. of this
Agreement, any documents required by Sections 5. or 10. of
this Agreement, and necessary funds for the payment of any
original issue tax.
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. Shares of stock will be transferred and new certificates
issued in transfer, or shares of stock accepted for redemption
and funds remitted therefor, or book entry transfer be
effected, upon surrender of the old certificates in form or
receipt by DST of instructions deemed by DST properly endorsed
for transfer or redemption accompanied by such documents as
DST may deem necessary to evidence the authority of the person
making the transfer or redemption. DST reserves the right to
refuse to transfer or redeem shares until it is satisfied that
the endorsement or signature on the certificate or any other
document is valid and genuine, and for that purpose it may
require a guaranty of signature in accordance with the
Signature Guarantee Procedures. DST also reserves the right to
refuse to transfer or redeem shares until it is satisfied that
the requested transfer or redemption is legally authorized,
and it will incur no liability for the refusal in good faith
to make transfers or redemptions which, in its judgment, are
improper or unauthorized. DST may, in effecting transfers or
redemptions, rely upon the Procedures, Simplification Acts,
21
Uniform Commercial Code 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.
D. When mail is used for delivery of stock certificates, DST will
forward stock certificates in "nonnegotiable" form by first
class or registered mail and stock certificates in
"negotiable" form by registered mail, all such mail deliveries
to be covered while in transit to the addressee by insurance
arranged for by DST.
E. DST will issue and mail subscription warrants, certificates
representing stock 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 of stock 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. Such instructions from the Fund will be in such
form as will be approved by the Board of Directors of the Fund
and will be in accordance with the provisions of law and the
bylaws of the Fund governing such matter.
H. DST will supply a shareholder's list to the Fund for its
annual meeting upon receiving a request from an officer of the
Fund. It will also, at the expense of the Fund, supply lists
at such other times as may be requested by an officer of the
Fund.
I. Upon receipt of written instructions of an officer of the
Fund, DST will, at the expense of the Fund, address and mail
notices to shareholders.
22
J. In case of any request or demand for the inspection of the
stock books of the Fund or any other books in the possession
of DST, DST will endeavor to notify the Fund 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.
20. Provisions Relating to Dividend Disbursing and Paying 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 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.
D. DST, acting as agent for the Fund, is hereby authorized (1) to
establish in the name of, and to maintain on behalf of, the
Fund, on the usual terms and conditions prevalent in the
industry, including limits or caps based on fees paid over
some period of time on the maximum liability of such Banks, as
hereinafter defined, one or more deposit accounts at a
nationally or regionally known banking institution (the
"Bank") into which DST shall deposit the funds DST receives
for payment of dividends, distributions, purchases of Fund
shares, redemptions of Fund shares, commissions, corporate
re-organizations (including recapitalizations or liquidations)
or any other disbursements made by DST on behalf of the Fund
provided for in this Agreement, (2) to draw checks upon such
accounts, to issue orders or instructions to the Bank for the
payment out of such accounts as necessary or appropriate to
23
accomplish the purposes for which such funds were provided to
DST, and (3) to establish, to implement and to transact Fund
business through Automated Clearinghouse ("ACH"), Draft
Processing, Wire Transfer and any other banking relationships,
arrangements and agreements with such Bank as are necessary or
appropriate to fulfill DST's obligations under this Agreement.
DST, acting as agent for the Fund, is also hereby authorized
to execute on behalf and in the name of the Fund, on the usual
terms and conditions prevalent in the industry, including
limits or caps based on fees paid over some period of time on
the maximum liability of such Banks, agreements with banks for
ACH, wire transfer, draft processing services, as well as any
other services which are necessary or appropriate for DST to
utilize to accomplish the purposes of this Agreement. In each
of the foregoing situations the Fund shall be liable on such
agreements with the Bank as if it itself had executed the
agreement. DST shall not be liable for any Adverse
Consequences arising out of or resulting from errors or
omissions of the Bank provided, however, that DST shall have
acted in good faith, with due diligence and without
negligence.
E. DST is authorized and directed to stop payment of checks
theretofore issued hereunder, but not presented for payment,
when the payees thereof allege either that they have not
received the checks or that such checks have been mislaid,
lost, stolen, destroyed or through no fault of theirs, are
otherwise beyond their control, and cannot be produced by them
for presentation and collection, and, to issue and deliver
duplicate checks in replacement thereof.
21. Assumption of Duties By the Fund or Agents Designated By the Fund.
A. The Fund or its designated agents other than DST may assume
certain duties and responsibilities of DST or those services
of Transfer Agent and Dividend Disbursing Agent as those terms
are referred to in Section 4.D. of this Agreement including
but not limited to answering and responding to telephone
inquiries from shareholders and brokers, accepting shareholder
and broker instructions (either or both oral and written) and
transmitting orders based on such instructions to DST,
preparing and mailing confirmations, obtaining certified TIN
numbers, classifying the status of shareholders and
shareholder accounts under applicable tax law, establishing
24
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 Fund or its agent or affiliate assumes such
duties and responsibilities, DST shall be relieved from all
responsibility and liability therefor and is hereby
indemnified and held harmless against any liability therefrom
and in the same manner and degree as provided for in Section 8
hereof.
C. Initially the Fund or its designees shall be responsible for
the following: [LIST RESPONSIBILITIES OR DELETE AS
APPROPRIATE.] (i) answer and respond to phone calls from
shareholders and broker-dealers, and (ii) scan items into
DST's AWD(TM) System as such calls or items are received by
the Fund, and (iii) enter and confirm wire order trades.
22. Termination of Agreement.
A. This Agreement shall be in effect for an initial period of
three (3) years and thereafter may be terminated by either
party as of the last day of the then current term by the
giving to the other party of at least one (1) year's prior
written notice, 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. If such notice is not given by either
party to the other at least one (fig 1) year prior to the end
of the then current term, this Agreement shall automatically
renew for the longer of additional, successive thirty-six (36)
month terms or the period set forth in any new Fee Schedule as
the period during which such Fee Schedule shall be effective,
each such period being a new "term" of this Agreement, upon
the expiration of any term hereof unless terminated as
hereinafter provided in Section 22.B.
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
25
(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 Fund will promptly pay DST
all amounts due to DST hereunder and 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 Fund and its designated successor transfer
agent, and to provide other information relating to its
services provided hereunder (subject to the recompense of DST
for such assistance at its standard rates and fees for
personnel then in effect at that time); provided, however, as
used herein "reasonable assistance" and "other information"
shall not include assisting any new service or system provider
to modify, alter, enhance, or improve its system or to
improve, enhance, or alter its current system, or to provide
any new, functionality or to require DST to disclose any DST
Confidential Information, as hereinafter defined, or any
information which is otherwise confidential to DST.
23. Confidentiality.
A. DST agrees that, except as provided in the last sentence of
Section 19.J. hereof, or as otherwise required by law, DST
will keep confidential all records of and information in its
possession relating to the Fund or its shareholders or
shareholder accounts 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 a11 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 Fund 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
26
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 Fund's access to the TA2000
System or computer hardware or software may permit
the Fund or its employees or agents to become aware
of or to access and that the DST Confidential
Information constitutes confidential material and
trade secrets of DST. The Fund agrees to maintain the
confidentiality of the DST Confidential Information.
(2) The Fund 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 Fund will advise all of its
employees and agents 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 Fund 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 Fund 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.
27
D. Notwithstanding the foregoing, each party shall be permitted
to disclose the tax treatment and tax structure of any
transaction at any time on or after the earliest to occur of
(a) the date of public announcement of discussions relating to
such transaction, (b) the date of public announcement of such
transaction, and (c) the date of execution of an agreement
(with or without conditions) to enter into such transaction.
This Agreement shall not be construed to limit in any way
either party's ability to consult any tax advisor regarding
the tax treatment or tax structure of a transaction. These
provisions are meant to be interpreted so as to prevent a
transaction from being treated as offered under "conditions of
confidentiality" within the meaning of the Internal Revenue
Code and the Treasury Regulations thereunder.
24. Changes and Modifications.
A. During the term of this Agreement DST will use on behalf
of the Fund without additional cost all modifications,
enhancements, or changes which DST may make to the TA2000
System in the normal course of its business and which are
applicable to functions and features offered by the Fund,
unless substantially all DST clients are charged separately
for such modifications, enhancements or changes, including,
without limitation, substantial system revisions or
modifications necessitated by changes in existing laws, rules
or regulations. The Fund agrees to pay DST promptly for
modifications and improvements which are charged for
separately at the rate provided for in DST's standard pricing
schedule which shall be identical for substantially all
clients, if a standard pricing schedule shall exist. If there
is no standard pricing schedule, the parties shall mutually
agree upon the rates to be charged.
B. DST shall have the right, at any time and from time to time,
to alter and modify any systems, programs, procedures or
facilities used or employed in performing its duties and
obligations hereunder; provided that the Fund will be notified
as promptly as possible prior to implementation of such
alterations and modifications and that no such alteration or
modification or deletion shall materially adversely change or
affect the operations and procedures of the Fund in using or
employing the TA2000 System or DST Facilities hereunder or the
28
reports to be generated by such system and facilities
hereunder, unless the Fund is given thirty (30) days prior
notice to allow the Fund to change its procedures and DST
provides the Fund with revised operating procedures and
controls.
C. All enhancements, improvements, changes, modifications or new
features added to the TA2000 System however developed or paid
for shall be, and shall remain, the confidential and exclusive
property of, and proprietary to, DST.
25. 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 and telecommunication companies, provided, if
DST selected such company, DST shall have exercised due care in
selecting the same.
26. Limitations on Liability.
A. If the Fund is comprised of more than one Portfolio, each
Portfolio shall be regarded for all purposes hereunder as a
separate party apart from each other Portfolio. Unless the
context otherwise requires, with respect to every transaction
covered by this Agreement, every reference herein to the Fund
shall be deemed to relate solely to the particular Portfolio
to which such transaction relates. Under no circumstances
shall the rights, obligations or remedies with respect to a
particular Portfolio constitute a right, obligation or remedy
applicable to any other Portfolio. The use of this single
document to memorialize the separate agreement of each
Portfolio is understood to be for clerical convenience only
and shall not constitute any basis for joining the Portfolios
for any reason. [DELETE IF NOT APPLICABLE]
B. Notice is hereby given that a copy of the Fund's Trust
Agreement and all amendments thereto is on file with the
Secretary of State of the state of its organization; 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.
[DELETE IF NOT APPLICABLE]
29
27. 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 Fund 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 Fund and DST. It is understood and agreed that all
30
services performed hereunder by DST shall be as an independent
contractor and not as an employee of the Fund. This Agreement
is between DST and the Fund 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 X. 00xx Xxxxxx 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Group Vice President-Full Service
Facsimile No.: 000-000-0000
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With a copy of non-operational notices to:
DST Systems, Inc.
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Legal Department
Facsimile No.: 000-000-0000
If to the Fund:
Constellation Investment Management Company, LP
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Mutual Fund Administration
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. DST and the Fund (including all agents of the Fund) agree
that, during any term of this Agreement and for twelve (12)
months after its termination, neither party will solicit for
employment or offer employment to any employees of the other.
0. The representations and warranties contained herein shall
survive the execution of this Agreement. The representations
and warranties contained in this Section, Section 27.0. and
the provisions of Section 8 hereof shall survive the
termination of the Agreement and the performance of services
hereunder until any statute of limitations applicable to the
matter at issues shall have expired.
32
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.
By: /s/ XXXXXXXXXXXXXX
------------------------------
Title: Vice President
CONSTELLATION FUNDS
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Title: Vice President
stddst-fsa
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