AGENCY AGREEMENT
THIS AGREEMENT made the 10th day of AUGUST 2004, by and between The
Advisors' Inner Circle Fund II (on behalf of the portfolios listed in Exhibit
D), a Massachusetts business trust existing under the laws of the Commonwealth
of Massachusetts, having its principal place of business at Xxx Xxxxxxx Xxxxxx
Xxxx, Xxxx, Xxxxxxxxxxxx 00000 (the "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 (which term when used herein shall include any
Board of Trustees, or other governing body of the Fund, however
styled) 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 (which term
as used herein shall include, where relevant, the Declaration
of Trust, or other basic instrument establishing the existence
and nature of the Fund) 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, as such opinion(s) have
been filed with the Fund's Registration Statement or notices
required under Rule 24f-2 under the Investment Company Act of
1940 (the "1940 Act"), with respect to:
(1) The Fund's organization and existence under the laws of its
state of organization, and
(2) That all issued shares are 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 (the
"1934 Act").
E. All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
F. It has and will continue to have and maintain the
necessary facilities, equipment and personnel to perform
its duties and obligations under this Agreement.
G. It is in compliance with Securities and Exchange
Commission ("SEC") regulations and is not subject to
restrictions under Rule l7Ad.
H. Copies of DST's Rule l7Ad-l3 reports will be provided to
the Fund annually as and to the extent required under Rule
1 7Ad-13 under the 1934 Act.
I. Its fidelity bonding and minimum capital meet the transfer
agency requirements of the New York Stock Exchange and the
American Stock Exchange.
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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 Commonwealth of
Massachusetts.
B. It is an open-end management investment company registered
under the 1940 Act, as amended, the portfolios of which
may be diversified or non-diversified.
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.
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(R), DST's computerized data
processing system for securityholder accounting (the
"TA2000(R) 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: issuing (including countersigning),
transferring and canceling share certificates, if any;
maintaining all shareholder accounts; providing
transaction journals; as requested by the Fund and subject
to payment by the Fund of an additional fee, preparing
shareholder meeting lists for use in connection with any
annual or special meeting and arrange for an
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affiliate to print, mail and receive back proxies and to
certify the shareholder votes of the Fund of any
portfolios thereof; mailing shareholder reports and
prospectuses; withholding, as required by federal law,
taxes on shareholder accounts, disbursing income dividends
and capital gains distributions to shareholders,
preparing, filing and mailing U.S. Treasury Department
Forms 1099, 1042, and 1042S and performing and paying
backup withholding as required for all shareholders;
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; recording
reinvestment of dividends and distributions in shares of
the Fund; 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;
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, calculating the appropriate sales charge
with respect to each purchase of the Fund shares as set
forth in the prospectus for the Fund, determining the
portion of each sales charge payable to the dealer
participating in a sale in accordance with schedules
delivered to DST by the Fund's principal underwriter or
distributor (hereinafter "principal underwriter") 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; 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 Fund's
instructions; interfacing with, accepting and effectuating
order for transactions and registration and maintenance
information, all on an automated basis, from, and
providing advices to the Fund's custodian bank and to the
Fund's settlement bank in connection with the settling of
such transactions, with, the National Securities Clearing
Corporation ("NSCC") pertaining to NSCC's
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Fund/SERV and Networking programs; and 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 the Fund or its
agents), and causing exchanges of shares to be executed in
accordance with the Fund's instructions and prospectus and
the general exchange privilege applicable.
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 transfer agent
services with respect to any new, additional functions or
features or any changes or improvements to existing
functions or features as provided for in the Fund's
instructions, prospectus or application as amended from
time to time, for the Fund provided (i) DST is advised in
advance by the Fund of any changes therein and (ii) the
TA2000 System and the mode of operations utilized by DST
as then constituted supports such additional functions and
features. If any addition to, improvement of or change in
the features and functions currently provided by the
TA2000 System or the operations as requested by the Fund
requires an enhancement or modification to the TA2000
System or to operations as then conducted by DST, DST
shall not be liable therefore until such modification or
enhancement is installed on the TA2000 System or new mode
of
5
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 have the right to 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;
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
6
counsel that the order or consent of no other
governmental or regulatory authority is required;
D. Opinion of counsel for the Fund, as such opinion(s) have
been filed with the Fund's Registration Statement or
notices required under Rule 24f-2 under the 1940 Act,
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 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 DST
Output, Inc.), magnetic tapes, reels or cartridges (if
sent 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
7
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 monthly rate of one and one-half percent
(l 1/2%) times the amount overdue, times the number of
whole or partial 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 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
8
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, but only 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; and
(3) Upon at least ninety (90) days prior written notice,
DST may impose a reasonable charge for additional
features of TA2000 used by the Fund which features
are not consistent with the Fund's current
processing requirements.
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 subparagraph (3) 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.
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, accurately reflect
the orders, instructions, and other information received
by DST from the Fund, the Fund's distributor, manager or
principal
9
underwriter, the Fund's investment adviser, or the Fund's
administrator (each an "Authorized Person"),
broker-dealers and/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 bank account
of all checks and payments received by DST from NSCC,
broker-dealers or shareholders for investment in shares;
F. Notwithstanding anything herein to the contrary, with
respect to "as of" adjustments, DST will not automatically
assume one hundred percent (100%) responsibility for
losses resulting from "as ofs" due to clerical errors or
misinterpretations of shareholder instructions, but DST
will discuss with the Fund DST's accepting liability for
an "as of" on a case-by-case basis and shall accept
financial responsibility for a particular situation
resulting in a financial loss to the Fund to the extent
that (A) such loss is "material," as hereinafter defined,
and (B) under the particular facts at issue, such loss is
attributable to DST's lack of good faith, negligence or
willful misconduct. 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 ($.0l)
full cent per share times the number of shares outstanding
or (iii) equals or exceeds the product of one-half of
one percent (1/2%) times 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).
10
DST's responsibility to contribute to the settlement of a
loss 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 guarantees1 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 not be responsible for, and the Fund shall on
behalf of the applicable Portfolio indemnify and hold DST
harmless from and against, any and all losses, damages,
costs, charges, counsel fees, payments, expenses and
liability ("Adverse Consequences") arising out of or
attributable to:
--------------------------------
1 DST shall ascertain that what reasonably purports to be an appropriate
signature guarantee is present if a signature guarantee is required, but DST
shall have no responsibility for verifying the authenticity thereof or the
authority of the person executing the signature guarantee.
11
(1) All actions of DST or its agents or subcontractors
required to be taken pursuant to this Agreement,
provided that such actions are taken in good faith and
without negligence or willful misconduct;
(2) The Fund's lack of good faith, negligence or willful
misconduct which arise out of the breach of any
representation or warranty of the Fund hereunder;
(3) The reliance on or use by DST or its agents or
subcontractors of information, records, documents or
services which (i) are received by DST or its agents
or subcontractors, and (ii) have been prepared,
maintained or performed by the Fund or any other
person or firm on behalf of the Fund including but not
limited to any previous transfer agent or registrar;
(4) The reliance on, or the carrying out by DST or its
agents or subcontractors of any instructions or
requests of the Fund on behalf of the applicable
Portfolio;
(5) The offer or sale of shares of the Fund or any
applicable Portfolio in violation of any requirement
under the federal securities laws or regulations or
the securities laws or regulations of any state
relating to the registration, the sale, or the manner
of sale of such shares or in violation of any stop
order or other determination or ruling by any federal
agency or any state with respect to the offer, the
sale or the manner of sale of such shares in such
state;
(6) The negotiation and processing by DST and the
applicable bank on which such check or draft is drawn
of checks not made payable to the order of DST, the
Fund, the Fund's management company, transfer agent or
distributor or the retirement account custodian or
trustee for a plan account investing in shares, which
checks are tendered to DST for the purchase of shares
(i.e., checks made payable to prospective or existing
Shareholders, such checks are commonly known as "third
party checks"); and
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(7) 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.
B. At any time DST may apply to any officer of the Fund for
instructions, and may consult with legal counsel with
respect to any matter arising in connection with the
services to be performed by DST under this Agreement, and
DST and its agents or subcontractors shall not be liable
and shall be indemnified by the Fund on behalf of the
applicable Portfolio for any action taken or omitted by it
in reliance upon such instructions or upon the opinion of
such counsel. DST, its agents and subcontractors shall be
protected and indemnified in acting upon any paper or
document furnished by or on behalf of the Fund, reasonably
believed to be genuine and to have been signed by the
proper person or persons, or upon any instruction,
information, data, records or documents provided DST or
its agents or subcontractors by machine readable input,
telex, CRT data entry or other similar means authorized by
the Fund, and shall not be held to have notice of any
change of authority of any person, until receipt of
written notice thereof from the Fund. DST, its agents and
subcontractors shall also be protected and indemnified in
recognizing stock certificates which are reasonably
believed to bear the proper manual or facsimile signatures
of the officers of the Fund, and the proper
countersignature of any former transfer agent or former
registrar, or of a co-transfer agent or co-registrar.
C. In order that the indemnification provisions contained in
this Section 8 shall apply, upon the assertion of a claim
for which the Fund may be required to indemnify DST, DST
shall promptly notify the Fund of such assertion, and
shall keep the Fund advised with respect to all
developments concerning such claim. The Fund shall have
the option to participate with DST in the defense of such
claim or to defend against said claim in its own name or
in the name of DST. DST shall in no case confess any claim
or make any compromise in any case in which the Fund may
be required to indemnify DST except with the Fund's prior
written consent.
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D. Standard of Care: DST shall at all times act in good faith
and agrees to use its best efforts within reasonable
limits to insure the accuracy of all services performed
under this Agreement, but assumes no responsibility and
shall not be liable for loss or damage due to errors
unless said errors are caused by its negligence, bad
faith, or willful misconduct or that of its employees. In
the event that any claim is asserted against DST under
this Agreement for any reason other than DST's bad faith,
willful misconduct or gross negligence, DST's liability
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 previous twelve (12) months.
E. 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.
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 receives 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
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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 publicly available
financial information reasonably requested by the Fund and
a copy of the report issued by its certified public
accountants pursuant to Rule l7Ad-13 under the 1934 Act as
filed with the SEC. The annual financial statements will
be certified by DST's certified public accountants and may
be included in DST's publicly distributed Annual Report.
E. DST represents and agrees that it will use its reasonable
efforts to keep current on the trends of the investment
company industry relating to shareholder services and will
use its reasonable efforts to continue to modernize and
improve.
F. DST will permit the 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 will provide in Kansas City at the Fund's request and
expense 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 two (2) man weeks of training at the Fund's
facility for the Fund's personnel in connection with the
continued operation of the TA2000 System. Reasonable
travel, per diem and reimbursable expenses incurred by DST
personnel in connection with and
15
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:
(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. RESERVED.
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 written requests or instructions to
give requests or instructions, together with two signature cards
bearing the specimen signature of each newly authorized officer.
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.
16
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 and at
the expense of the Fund, either consult with legal counsel for the Fund
or consult with counsel chosen by DST and acceptable to 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.
For purposes hereof, DST's internal counsel and attorneys employed by
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx, DST's primary outside counsel, are
acceptable to the Fund. 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, provided such equipment has been
reasonably maintained, or third party software or
communication service; inability to obtain labor,
material, equipment or transportation, or a delay in
mails; governmental or exchange action, statute,
ordinance, rulings, regulations or direction; war, strike,
riot, emergency, civil disturbance, terrorism, vandalism,
explosions, labor disputes, freezes, floods, fires,
tornadoes, acts of God or public enemy, revolutions, or
insurrection; or any other cause, contingency,
circumstance or delay not subject to DST's reasonable
control which prevents or hinders DST's performance
hereunder.
B. DST currently maintains an agreement with a third party
whereby DST is to be permitted to use on a "shared use"
basis a "hot site" (the "Recovery Facility")
17
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 will, in the event of a
disaster rendering the DST Facilities inoperable, use
reasonable efforts to convert the TA2000 System containing the
designated Fund data to the computers at the Recovery Facility
in accordance with the then current Business Contingency Plan.
C. DST also currently maintains, separate from the area in which
the operations which provides the services to the Fund
hereunder are located, a Crisis Management Center consisting of
phones, computers and the other equipment necessary to operate
a full service transfer agency business in the event one of its
operations areas is rendered inoperable. The transfer of
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.
18
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 3la-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 l7Ad-7 adopted under the Securities
Exchange Act of 1934. 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. Instructions for the transfer, exchange or redemption of
shares of the Fund will be accepted, the registration,
redemption or transfer of the shares be effected and,
where applicable, funds remitted therefor. Upon surrender
of the old certificates in form or receipt by DST of
instructions deemed by DST properly endorsed for transfer,
exchange or redemption, accompanied by such documents as
DST may deem necessary to evidence the authority of the
person making the transfer, exchange or redemption, the
transfer, exchange or redemption of the shares reflected
by such certificates be effected and any sums due in
connection therewith be remitted, in accordance with the
instructions contained herein. DST reserves the right to
refuse to transfer or redeem shares until it is satisfied
that the endorsement or signature on the instruction 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, exchange or
redeem shares until it is satisfied that the requested
transfer, exchange or redemption is legally authorized,
and DST 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, exchanges or redemptions, rely upon
19
DST's Procedures and Simplification Acts, 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.
B. DST will, at the expense of the Fund, issue and mail
subscription warrants, effectuate 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.
C. DST will, at the expense of the Fund, 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.
D. 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.
E. 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 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.
20
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 shall establish and maintain on behalf of the Fund one
or more deposit accounts as Agent for the Fund, into which
DST shall deposit the funds DST receives for payment of
dividends, distributions, redemptions or other
disbursements provided for hereunder and to draw checks
against such accounts.
E. DST is authorized and directed to stop payment of checks
theretofore issued hereunder, but not presented for
payment, when the payees thereof allege either that they
have not received the checks or that such checks have been
mislaid, lost, stolen, destroyed or through no fault of
theirs, are otherwise beyond their control, and cannot be
produced by them for presentation and collection, and, to
issue and deliver duplicate checks in replacement thereof.
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
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
21
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 AS APPROPRIATE):
22. TERMINATION OF AGREEMENT.
A. This Agreement shall be in effect for an initial period of
three (3) years and, thereafter, shall automatically
extend for additional, successive twelve (12) month terms
upon the expiration of any term hereof unless terminated
as hereinafter provided.
B. Each party, in addition to any other rights and remedies,
shall have the right to terminate this Agreement forthwith
upon the occurrence at any time of any of the following
events with respect to the other party:
(1) The bankruptcy of the other party or its assigns or
the appointment of a receiver for the other party or
its assigns; or
(2) Failure by the other party or its assigns to perform
its duties in accordance with the Agreement, which
failure materially adversely affects the business
operations of the first party and which failure
continues for thirty (30) days after receipt of
written notice from the first party.
C. Either party may terminate this Agreement at any time by
delivery to the other party of six (6) months prior
written notice of such termination; provided, however,
that the effective date of any termination and conversion
off the TA2000 System (a "Deconversion") shall not occur
during the period from November 30 through March 15 of any
year to avoid adversely impacting year end.
D. In the event of any termination of this Agreement:
(1) The Fund will continue to pay to DST as invoiced all
sums due for DST's services until completion of the
Deconversion and will pay to DST, no later than
contemporaneously with the dispatch by DST of the
Fund's records, all amounts payable to DST.
(2) If, for any reason, the Fund desires to convert from
the TA2000 System ("Deconvert") other than on the
first day after six (6) months from the receipt by
22
DST of the termination notice (such first day after
the expiration of six (6) months being hereinafter
referred to as the "Termination Date"), and DST is
able, through reasonable efforts, to accomplish such
earlier deconversion, the Fund shall pay to DST on
the day of or before the deconversion the fees which
DST would have earned had the Fund not Deconverted,
and had DST remained the transfer/shareholder
servicing agent, until the Termination Date. The
amount of such fees shall be calculated by: (a)
dividing the aggregate fees charged to the Fund with
respect to the six (6) whole months immediately
preceding receipt by DST of the six (6) month
termination notice by (b) twenty-six (26) (the
number of weeks in such six (6) month period) to
determine the average weekly fee and (c) multiplying
the average weekly fee times the number of whole or
partial weeks between the date on which Deconversion
actually occurs and the Termination Date.
(3) Subsequent to any deconversion:
(a) The Fund shall continue to pay to DST, subject
to and in accordance with the terms and
conditions set forth in Sections 6.A., 6.B.,
6.C. and 6.D. of this Agreement (which Sections
shall survive termination of this Agreement for
purposes of payment of Exhibit B fees for as
long as DST is providing such services), for all
expenses incurred on the Fund's behalf and the
post-Deconversion fees set forth in Exhibit B to
this Agreement until (i) the Fund accounts are
purged from the TA2000 System (no longer being
required for Year End Reporting) with respect to
closed account fees and (ii) so long as DST's
services are utilized with respect to all fees
other than those for closed accounts by the
Fund, the Fund's new transfer agent and the
Fund's shareholders, former shareholders,
broker-dealers or other entities with whom the
Fund does business, as well as any persons
claiming through or on behalf of any of the
foregoing; and
23
(b) To the extent applicable regulations of the
Internal Revenue Service and tax laws permit,
the Fund shall require the Fund's new transfer
agent to perform and dispatch or file all
required year end reporting (tax or otherwise
and federal and state) to shareholders, broker-
dealers, beneficial owners, federal and state
agencies and any other recipients thereof for
the entire year during which the Deconversion
occurs and DST shall have no, and the Fund
hereby indemnifies DST and holds DST harmless
against any, liability or Adverse Consequences
whatsoever with respect thereto, including by
way of example and not limitation, reports or
returns on Forms 1099, 5498, 945, 1042 and
1042S, annual account valuations for retirement
accounts and year end statements for all
accounts and any other reports required to be
made by state governments or the federal
government or regulatory or self-regulatory
agencies (the "Returns");
(c) If the Fund is unable to obtain a commitment
from the new transfer agent that the new
transfer agent will perform year end reporting
(tax or otherwise) for the entire year and mail
and file all Returns, (i) DST shall perform year
end reporting as instructed by the Fund for the
portion of the year DST served as transfer agent
and (ii) DST shall be paid therefore a monthly
per CUSIP fee through the end of the last month
during which the last Return or form is filed.
The Fund will cause the new transfer agent to
timely advise DST of all changes to the
shareholder records effecting such reporting
until all DST reporting obligations cease; and
DST shall have no, and the Fund hereby
indemnifies DST and holds DST harmless against
any, liability or any Adverse Consequences
arising out of or resulting from the failure of
the new transfer agent to timely and properly
advise DST thereof or which could have been
avoided if the new transfer agent had timely and
properly advised DST thereof. All amendments to,
or delivery of duplicate, Returns after their
initial
24
dispatch or filing will be effectuated and filed
or dispatched by the new transfer agent
regardless of who filed or dispatched the
original Return; and
(d) All of the records belonging to the Fund on the
TA2000 System may be purged by DST without
liability on behalf of DST to the Fund or its
agents, shareholders, and parties with whom the
Fund has done or will do business, at any time
on or after the forty-fifth (45th) day after the
Termination Date *insert V. The Fund shall and
hereby agrees to indemnify and hold DST harmless
against any Adverse Consequences directly or
indirectly arising out of or resulting from any
inability to produce such purged records. The
Fund will, and will cause the new transfer agent
to, maintain and preserve the records converted
from the TA2000 System or any hard copy records
transferred by DST to the Fund or the new
transfer agent in accordance with the
requirements of all applicable law, including
without limitation 17 C.F.R SS240.l7Ad-6, -7,
-10, -11 and -15 (including without limitation
to make copies thereof available timely and at
no charge to appropriate regulatory agencies in
accordance with the requirements of Section
l7Ad-7, and, as reasonably necessary, DST).
Notwithstanding the foregoing, upon the request
and at the expense of the Fund, DST shall not
purge, but shall retain as closed accounts on
the TA2000 System, the records belonging to the
Fund.
E. In addition, in the event of any termination, DST will,
provided the Fund contemporaneously pays all outstanding
charges and fees, promptly transfer all of the records of
the Fund to the designated successor transfer agent. DST
shall also provide reasonable assistance to the Fund and
its designated successor transfer agent and other
information relating to its services provided hereunder
(subject to the recompense of DST for such assistance and
information 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
25
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 19J. 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 owns all of the data supplied by or on behalf of
the Fund to DST. The Fund has proprietary rights to all
such data, records and reports containing such data, but
not including the software programs upon which such data
is installed, and all records containing such data will be
transferred in accordance with Section 22.D) above in the
event of termination.
C. The Fund agrees to keep confidential all non-public
financial statements and other financial records of DST
received hereunder, all accountants' reports relating to
DST, the terms and provisions of this Agreement, including
all exhibits and schedules now or in the future attached
hereto 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.
D. (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
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
26
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.
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
27
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 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 at the
time such notice is delivered to the Fund.
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.
28
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.
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.
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.
29
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 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.
30
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, in the case of non-operational notices only,
confirmed by mail as follows:
If to DST:
DST Systems, Inc.
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Group Vice President-Full Service
Facsimile No.: 000-000-0000
With a copy of non-operational notices to:
DST Systems, Inc.
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Legal Department
Facsimile No.: 000-000-0000
If to the Fund:
The Advisors' Inner Circle Fund II
Xxx Xxxxxxx Xxxxxx Xxxx
Xxxx, Xxxxxxxxxxxx 00000
Attn: General Counsel
Facsimile NO.:(000) 000-0000
or to such other address as shall have been specified in
writing by the party to whom such notice is to be given.
N. The representations and warranties contained herein shall
survive the execution of this Agreement. The
representations and warranties contained herein and the
provisions of Section 8 and Section 22.D.(3)(a) 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.
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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.
THE AVISORS' INNER CIRCLE FUND II DST SYSTEMS, INC.
BY: /s/ XXXXX XXXXXX BY: /s/ illegible signature
------------------------------- -----------------------------
TITLE: Vice President TITLE: Vice President
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EXHIBIT C
AUTHORIZED PERSONNEL
Ppursuant to the Agency Agreement between The Advisors' Inner Circle Fund II
(the "Fund") and DST (the "Agreement"), the Fund authorizes the following
personnel of the Fund or its agents to provide instructions to DST, and receive
inquiries from DST in connection with the Agreement:
NAME TITLE
---- -----
Xxx Xxxx President
Xxxxxxxx Xxxxxxxx Controller and Chief Financial Officer
Xxxxx Xxxxxx Vice President and Secretary
Xxxxxxx Xxxxx Vice President and Assistant Secretary
Xxxxxx Xxxxxxxxx Vice President and Assistant Secretary
This Exhibit may be revised by the Fund by providing DST with a substitute
Exhibit C. Any such substitute Exhibit C shall become effective twenty-four
(24) hours after DST's receipt of the document and shall be incorporated into
the Agreement.
ACKNOWLEDGMENT OF RECEIPT:
DST SYSTEMS, INC. THE ADVISORS' INNER CIRCLE FUND II
/s/ illegible signature BY: /s/ XXXXX XXXXXX
__________________________ __________________________________
Title: Vice President Title: Vice President
_______________________ _______________________________
Date: 7/20/05 Date: 7/28/05
________________________ ________________________________
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EXHIBIT D
FUNDS SUBJECT TO THIS AGREEMENT
1. Champlain Small Company Fund
2. Xxxxxx Select Research Fund
3. UCM Institutional Money Market Fund
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