AGENCY AGREEMENT
THIS AGREEMENT made the 1st day of April, 1997, by end between the TIP
FUNDS, 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 X. 00xx Xx., 0xx Xx., 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 17Ad.
H. Copies of DST's Rule 17Ad-13 reports will be provided to the Fund
annually as and to the extent required under Rule 17Ad-13 under the 1934
Act.
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I. Its fidelity bonding and minimum capital meet the transfer agency
requirements of the New York Stock Exchange and the American Stock
Exchange.
3. Certain Representations and Warranties of the Fund.
The Fund represents and warrants to DST that:
A. It is a trust 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(TM), DST's computerized data processing system for
securityholder accounting (the "TA2000(TM) 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
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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 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(TM) 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
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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 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. 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(TM) 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(TM) System or the
operations as requested by the Fund requires an enhancement or
modification to the TA2000(TM) System or to operations as then conducted
by DST, DST shall not be liable therefore until such modification or
enhancement is installed on the TA200(TM) 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
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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.
F. The Fund shall have the right to add new series to the TA2000(TM) 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 counsel that the order or consent of
no other governmental or regulatory authority is required;
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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
Output Technology, Inc. and Support Resources, 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 at the Fund's or a third
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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 that rate announced
from time to time by State Street Bank and Trust Company as its "Prime
Rate" plus three (3) percentage points times the amount overdue, times
the number of days from the Due Date up to and including the day on which
payment is received by DST divided by 365. 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
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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, 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:
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A. That entries in DST's records, and in the Fund's records on the
TA2000(TM) 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 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(TM) 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(TM) 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(TM) 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 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 may accept financial responsibility for a particular situation
resulting in a financial loss to the Fund where DST in its discretion
deems that to be appropriate;
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G. The requiring of proper forms of instructions, signatures and signature
guarantees(1) 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) 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.
------------------
(l) 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.
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(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.
(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").
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
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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.
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
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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.
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 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.
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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 17Ad-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(TM) 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 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;
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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 request's 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.
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
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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") 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
17
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(TM) 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.
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
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 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 DST's Procedures
and Simplification Acts, Uniform Commercial Code or other statutes which
protect it and the Fund in not requiring
19
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
hate 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(TM)
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.
21
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)
answering and responding to phone calls from shareholders and
broker-dealers, (ii) faxing information to DST as such calls or items are
received by the Fund, and (iii) monitoring and following up upon wire
order trades which failed to settle timely, and (iv) notifying and
instructing DST as to the establishment of and maintenance of information
pertaining to broker-dealers on the Broker-Dealer File.
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
22
System (a "deconversion") shall not occur during the period from November
15 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 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) the product of the number six (6) times 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, 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
23
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, its new
transfer agent and its shareholders, former shareholders,
broker-dealers or other entities with whom the Fund does business
and persons claiming through or on behalf of any of the
foregoing; and
(b) To the extent applicable regulations of the Internal Revenue
Service and tax laws permit, the Fund shall require its 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 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, (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
24
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 advise DST
thereof or which could have been avoided if the new transfer
agent had timely advised DST thereof. All amendments to, or
delivery of duplicate, returns after their initial 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 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. 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 17 C.F.R. ss.240.17Ad-6, -7,
-10 and -11 (including without limitation to make copies thereof
available timely and at no charge to appropriate regulatory
agencies and, as reasonably necessary, DST. Notwithstanding the
foregoing, upon the request and at the expense (as set forth in
Exhibit B) of the Fund, DST shall not purge, but shall retain as
closed accounts on the TA2000 System, the records belonging to
the Fund.
25
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 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
l9.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 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
26
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(TM) 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(TM)
System and any other DST programs, data bases, supporting
documentation, or procedures (collectively "DST Confidential
Information") which the Fund's access to the TA2000(TM) 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
27
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(TM) 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(TM) 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.
28
C. All enhancements, improvements, changes, modificatdons or new features
added to the TA2000(TM) 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.
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.
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 services performed hereunder by DST
shall be as
30
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, in the case of
non-operational notices only, confirmed by mail as follows:
If to DST:
DST Systems, Inc.
0000 Xxxxxxxx, 0xx Xx.
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Senior Vice President-Full Service
Phone No.: 000-000-0000
Facsimile No.: 000-000-0000
31
With a copy of non-operational notices to:
DST Systems, Inc.
000 X. 00xx Xx., 0xx Xx.
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Legal Department
Phone No.: 000-000-0000
Facsimile No.: 000-000-0000
If to the Fund:
SEI Investments, Inc.
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx Xxxxx
Phone No.: 000-000-0000
Facsimile No.: 000-000-0000
or to such other address as shall have been specified in writing by the
party to whom such notice is to be given.
N. The representations and warranties contained herein shall survive the
execution of this Agreement. The representations and warranties contained
herein and the provisions of Section 8 hereof shall survive the
termination of the Agreement and the performance of services hereunder
until any statute of limitations applicable to the matter at issues shall
have expired.
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/ Xxxxxxx X. Xxxxx
----------------------------------
Title: Vice President and
Chief Financial Officer
-------------------------------
TIP FUNDS
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Title:
-------------------------------
33
EXHIBIT A
FEE SCHEDULE
PAGE 1 OF 5
DST SYSTEMS, ING
TIP FUNDS TRANSFER AGENCY FEES
EFFECTIVE APRIL 1, 1997 THROUGH
JANUARY 31, 2000
A. MINIMUM AND BASE FEE
Year 1 - April 1997 through March 1998
Minimum
CUSIPS in the range 1-10 $11,000/CUSIP/year
CUSIPS in the range 11-20 $10,500/CUSIP/year
CUSIPS in the range (more than) 20 $10,000/CUSIP/year
Base Fee
CUSIPS in the range 1-10 $4,000/CUSIP/year
CUSIPS in the range 11-20 $4,000/CUSIP/year
CUSIPS in the range (more than) 20 $4,000/CUSIP/year
Year 2 - April 1998 through March 1999
Minimum
CUSIPS in the range 1-10 $12,000/CUSIP/year
CUSIPS in the range 11-20 $11,000/CUSIP/year
CUSIPS in the range (more than) 20 $10,400/CUSIP/year
Base Fee
CUSIPS in the range 1-10 $6,000/CUSIP/year
CUSIPS in the range 11-20 $5,500/CUSlP/year
CUSIPS in the range (more than) 20 $5,200/CUSIP/year
Year 3 - April 1999 through March 2000
Minimum
CUSIPS in the range 1-10 $13,000/CUSIP/year
CUSIPS in the range 11-20 $11,500/CUSIP/year
CUSIPS in the range (more than) 20 $10,800/CUSIP/year
Base Fee
CUSIPS in the range 1-10 $8,000/CUSIP/year
CUSIPS in the range 11-20 $7,000/CUSIP/year
CUSIPS in the range (more than) 20 $6,400/CUSIP/year
Note: Minimum applies unless charges included in Section B exceed the minimum.
34
EXHIBIT A
FEE SCHEDULE
PAGE 2 OF 5
B. ACCOUNT MAINTENANCE AND PROCESSING FEES
Year 1 - April 1997 through March 1998
Open Accounts
Daily Accrual Portfolio(s) $26.00 per account per year
Monthly Accrual Portfolio(s) $23.00 per account per year
Other Accrual Portfolio(s) $21.00 per account per year
Closed Accounts $2.85 per account per year
Retail Phone Calls $2.00/each
Retail New Accounts $3.50/each
Retail Manual Transactions $1.50/each
Year 2 - April 1998 through March 1999
Open Accounts
Daily Accrual Portfolio(s) $26.00 per account per year
Monthly Accrual Portfolio(s) $23.00 per account per year
Other Accrual Portfolio(s) $21.00 per account per year
Closed Accounts $2.85 per account per year
Retail Phone Calls $2.00/each
Retail New Accounts $3.50/each
Retail Manual Transactions $1.50/each
Year 3 - April 1999 through March 2000
Open Accounts
Daily Accrual Portfolio(s) $26.00 per account per year
Monthly Accrual Portfolio(s) $23.00 per account per year
Other Accrual Portfolio(s) $21.00 per account per year
Closed Accounts $2.85 per account per year
Retail Phone Calls $2.00/each
Retail New Accounts $3.50/each
Retail Manual Transactions $1.50/each
35
EXHIBIT A
FEE SCHEDULE
PAGE 3 OF 5
C. OPTIONAL SERVICES
Financial Intermediary Interfaces (includes generally
Xxxxxx and Xxxxxx-like interfaces, NSCC and transactions
with entities entering more than five transactions
a week) (See Exhibit A.1)
12b-1 Processing $.15 per open and closed account per cycle
CDSC/Sharelot Accounting $1.90 per account per year
Ad-Hoc Reporting
Multi File Reports $400 per report
Single File Reports $250 per report
*Audio Response(TM) System - Not Used Currently Charges quoted upon request
*NSCC To Be Determined
Escheatment Costs - as incurred
Conversion/Acquisition Costs - Out of Pocket expenses including but not
limited to travel and accommodations, programming, training, equipment
installation, etc.
*Computer/Technical Personnel:
Business Analyst/Tester:
Dedicated $70,500 per year
On Request:
Senior Staff Support $65 per hour
Staff Support $45 per hour
Clerical Support $35 per hour
Technical/Programming:
Dedicated $115,000 per year
On Request $90 per hour
Technical/C Programming:
Dedicated $140,000 per year
On Request $115 per hour
NOTES TO THE ABOVE FEE SCHEDULE
A. The above schedule does not include reimbursable expenses that are
incurred on the Fund's behalf. Examples of reimbursable expenses include but
are not limited to those set forth on page 5 of this Exhibit A. Reimbursable
expenses are billed separately from service fees on a monthly basis. Postage
will be paid in advance if so requested.
36
EXHIBIT A
FEE SCHEDULE
Page 4 of 5
B. Any fees or reimbursable expenses not paid within 30 days of the date of
the original invoice will be charged a late payment fee as described in the
contract.
C. The above fees, except for those indicated by an "*", are guaranteed for a
three year period. All items marked by an "*" are subject to change with 60
day notice.
D. The monthly fee for an open account shall be charged in the month during
which an account is opened through the month in which such account is closed.
The monthly fee for a closed account shall be charged in the month following
the month during which such account is closed and shall cease to be charged
in the month following the Purge Date, as hereinafter defined. The "Purge
Date" for any year shall be any day after June 1st of that year, as selected
by the Fund, provided that written notification is presented to DST at least
forty-five (45) days prior to the Purge Date.
E. Fee Increases: DST reserves the right to raise fees by a rate in excess of
the aggregate increase in the Consumer Price Index for All Urban Consumers
("CPI-U") in the Kansas City, Missouri-Kansas-Standard Metropolitan
Statistical Area, All Items, Base 1982-1984 = 100, as- last reported by the
U.S. Bureau of Labor Statistics during the term of this Fee Schedule upon the
expiration of this Fee Schedule at the close of business on January 31, 2000,
unless the parties to this Agreement have mutually agreed in a writing
executed by each to a new Fee Schedule.
F. All Print/Mail, except checks (dividend and redemption), to be performed
at Output Technologies Eastern Region, Inc. (at Braintree, Massachusetts).
Fees Accepted By:
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx Xxxxxx
---------------------------------- ---------------------------------------
DST Systems, Inc. TIP Funds
7/11/97
---------------------------------- ---------------------------------------
Date Date
37
EXHIBIT A
FEE SCHEDULE
Page 5 of 5
Reimbursable Expenses
Forms
Postage (to be paid in advance if so requested)
Mailing Services
Computer Hardware and Software - specific to Fund or installed at remote site
at Fund's direction
Telecommunications Equipment and Lines/Long Distance Charges
Magnetic Tapes, Reels or Cartridges
Magnetic Tape Handling Charges
Microfiche/Microfilm
Freight Charges
Printing
Bank Wire and ACH Charges
Proxy Processing - per proxy mailed
not including postage
Includes: Proxy Card
Printing
Outgoing Envelope
Return Envelope
Tabulation and Certification
T.I.N. Certification (W-8 & W-9)
(Postage associated with the
return envelope is included)
N.S.C.C. Communications Charge To Be Determined
(Fund/Serv and Networking)
Off-site Record Storage Currently $.07
Second Site Disaster (guaranteed not to
Backup Fee (per account) exceed $.11 through
12/31/97)
Transmission of Statement Data for Currently $.035/per
Remote Processing record
Travel, Per Diem and other Billables
Incurred-by DST personnel traveling to,
at and from the Fund at the request
of the Fund
38
EXHIBIT A.1
PAGE 1 OF 1
TIP FUNDS
FINANCIAL INTERMEDIARY/THIRD PARTY ADMINISTRATOR FEES
All Same Day (Trade Date) Processing/Settlement Environments
Base Fee $100/intermediary/mo
Manual Transactions $3.50
Phone Calls (inbound and outbound) $4.00
All Non-Same Day (Trade Date + x) Processing/Settlement Environments
Base Fee $100/intermediary/mo
Manual Transactions $11.00
Phone Calls (inbound and outbound) $4.00
Listbills
Per Roster List:
Received via phone/fax for manual processing $25
Received via electronic data transmission, no manual processing $10
Per Manual Transaction $1.00
All Electronic Data Transmissions
Initial Set-up $40/CUSIP
Data Transmissions/Interfaces:
First 10 CUSIPS $100/CUSIP/mo
Next 15 CUSIPS $75/CUSIP/mo
CUSIPS over 25 $50/CUSIP/mo
Fee Cap
The aggregate of all fees set forth on this Exhibit A.1 will not exceed $25,000
per year calculated on a monthly basis.
39
EXHIBIT B
POST DECONVERSION FEE SCHEDULE
All fees effective as of deconversion:
Account Maintenance
Closed Accounts $.20/month/acct
Transaction/Maintenance Processing $2.50/item
Telephone Calls $4.00/call
Research Requests $40/hour (1 hr min)
Programming
As required at DST's then current standard rates
Reimbursable Expenses
This schedule does not include reimbursable expenses that are incurred on the
Fund's behalf. Examples of reimbursable expenses include but are not limited to
forms, postage, mailing services, telephone line/long distance charges,
transmission of statement data for remote print/mail operations, remote client
hardware, document storage, tax certification mailings, magnetic tapes,
printing, microfiche, Fed wire bank charges, ACH bank charges, NSCC charges, as
required or incurred, etc. Reimbursable expenses are billed separately from
Account Maintenance and Programming fees on a monthly basis and late payments
are subject to late charges in accordance with Section 6.C. of this Agreement.
40
