Exhibit 99.(h)(ii)
Form of
TRANSFER AGENCY AGREEMENT
Made as of the 31st day of January, 2004
by and between
UNDISCOVERED MANAGERS FUNDS
and
DST SYSTEMS, INC.
TABLE OF CONTENTS
Documents to be Filed with Appointment 1
Certain Representations and Warranties of DST 2
Certain Representations and Warranties of the Trust 2
Scope of Appointment 3
Limit of Authority 6
Compensation and Expenses 7
Operation of DST System 10
Indemnification 11
Certain Covenants of DST and the Trust 15
Recapitalization or Readjustment 17
Stock Certificates 18
Death, Resignation or Removal of Signing Officer 18
Future Amendments of Declaration of Trust and Bylaws 18
Instructions, Opinion of Counsel and Signatures or JPM 18
Force Majeure and Disaster Recovery Plans 19
Certification of Documents 20
Records 20
Disposition of Books, Records and Canceled Certificates 20
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Provisions Relating to DST as Transfer Agent 21
Provisions Relating to Dividend Disbursing Agency 23
Assumption of Duties By the Trust or Agents Designated By the Trust 24
Termination of Agreement 25
Confidentiality 26
Changes and Modifications 28
Assignment and Subcontractors 29
Limitations on Liability 29
Miscellaneous 30
Exhibit A - Fee Schedule 33
Exhibit B - Authorized Personnel 39
Exhibit C - Transfer Agency Services and Systems Features 40
Exhibit D - Confidentiality Agreement for Auditors 42
Appendix I 47
ii
TRANSFER AGENCY AGREEMENT
THIS AGREEMENT made as of the 30th day of January, 2004, by and between
UNDISCOVERED MANAGERS FUNDS, a business trust existing under the laws of the
Commonwealth of Massachusetts, having its principal place of business at 000 0xx
Xxx., Xxx Xxxx, XX 00000 and acting on its own behalf and on behalf of each of
the portfolios listed in Appendix I (collectively, the "Fund" or "Funds), and
DST SYSTEMS, INC., a corporation existing under the laws of the State of
Delaware, having its principal place of business at 0000 Xxxxxxxx, Xxxxxx Xxxx,
Xxxxxxxx 00000 ("DST"):
WITNESSETH:
WHEREAS, the Trust (as used hereinafter, the term "Trust" shall refer to
the X.X. Xxxxxx Mutual Fund Series and each Fund) is a Massachusetts business
trust registered with the Securities and Exchange Commission as an investment
company pursuant to the Investment Company Act of 1940, as amended, which
currently consists of the Funds listed on Appendix I; and
WHEREAS, the Trust desires to appoint DST as Transfer Agent and Dividend
Disbursing Agent for all shares of each Fund of the Trust (the "Shares"), 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 Trust, there will be filed with DST the
following documents:
A. A certified copy of the votes of the Board of Trustees of the
Trust appointing DST as Transfer Agent and Dividend Disbursing
Agent, approving the form of this Agreement, and designating
certain persons to sign Certificates, if any, and give written
instructions and requests on behalf of the Trust;
B. A certified copy of the Declaration of Trust of the Trust and all
amendments thereto;
C. A certified copy of the Bylaws of the Trust;
D. Copies of Registration Statements and amendments thereto, filed
with the Securities and Exchange Commission;
E. Specimens of all forms of outstanding Certificates;
F. Specimens of the signatures of the officers of the Trust
authorized to sign Certificates and individuals authorized to
sign written instructions and requests;
G. An opinion of counsel for the Trust with respect to:
(1) The Trust's organization and existence under the laws of
its state of organization,
(2) The status of all Shares, whether unissued or evidenced by
Certificates of the Trust, covered by the appointment
under the Securities Act of 1933, as amended, (the "'33
Act") and any other applicable federal or state statute,
and
(3) That all issued Shares are, and all unissued Shares will
be when issued, validly issued, fully paid and
non-assessable.
2. CERTAIN REPRESENTATIONS AND WARRANTIES OF DST.
DST represents and warrants to the Trust that:
A. It is a corporation duly organized and existing and in good
standing under the laws of Delaware.
B. It is duly qualified to carry on its business in the State of
Missouri.
C. It is empowered under applicable laws and by its Articles of
Incorporation and Bylaws to enter into and perform the services
contemplated in this Agreement.
D. It is registered as a transfer agent to the extent required under
the Securities Exchange Act of 1934, as amended, (the "'34 Act")
and it will remain so registered for the duration of this
Agreement. It will promptly notify the Trust in the event of any
material change in its status as a registered transfer agent.
Should DST fail to be registered with the appropriate federal
agency as a transfer agent at any time during this Agreement, the
Trust may, on written notice to DST, immediately terminate this
Agreement.
E. All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
F. It has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
3. CERTAIN REPRESENTATIONS AND WARRANTIES OF THE TRUST.
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The Trust represents and warrants to DST that:
A. It is a business trust duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
B. It is an open-end, non-diversified management investment company
registered under the Investment Company Act of 1940, as amended.
C. A registration statement under the '33 Act has been filed and
will be effective with respect to all Shares offered for sale.
D. All requisite steps have been and will continue to be taken to
register the 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 Trust is empowered under applicable laws and by its
Declaration of Trust and Bylaws to enter into and perform this
Agreement.
4. SCOPE OF APPOINTMENT.
A. Subject to the conditions and termination of provisions set forth
in this Agreement, the Trust hereby appoints DST as Transfer
Agent and Dividend Disbursing Agent for the Shares and for the
Shares of future portfolios of the Trust (Annex A shall be
revised to include such future portfolio(s)).
B. DST hereby accepts such appointment and agrees that it will act
as the Trust's Transfer Agent and Dividend Disbursing Agent. DST
agrees that it will also act as agent in connection with the
Trust's periodic withdrawal payment accounts and other open
accounts or similar plans for shareholders, if any.
C. The Trust agrees to use its best efforts to deliver to DST in
Kansas City, Missouri, as soon as they are available, all of its
shareholder account records for any new Fund of the Trust.
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 Trust, and as agent of the Trust for
shareholder accounts thereof, in a timely manner: issuing
(including countersigning), transferring and canceling share
certificates; maintaining all shareholder accounts; providing
transaction journals; once annually preparing shareholder meeting
lists for use in connection with the annual meeting and
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certifying the shareholder votes of the Trust; 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
Trust and other transactions in shareholders' accounts requiring
confirmation under applicable law; recording reinvestment of
dividends and distributions in Shares; providing or making
available on-line daily and monthly reports as both are regularly
provided by the TA2000(TM) System and as requested by the Trust
or its management company; maintaining those records necessary to
carry out DST's duties hereunder, including all information
reasonably required by the Trust to account for all transactions
in the Shares, calculating the appropriate sales charge with
respect to each purchase of the Shares as set forth in the
prospectus for the Trust, determining the portion of each sales
charge payable to the dealer participating in a sale in
accordance with schedules delivered to DST by the Trust'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 dealers in accordance with the Trust's instructions;
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 Trust, the Trust's agents or
prospectus, or the Procedures, as hereinafter defined), and
causing exchanges of shares to be executed in accordance with the
Trust's instructions and prospectus, the Procedures and the
general
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exchange privilege applicable; operating the order desk on behalf
of the Trust for the purpose of taking trade orders from
broker-dealers and institutions, confirming orders on "T+1"
(Trade Date Plus One), monitoring the settlement of such orders
and advising the Trust once such orders become delinquent based
upon the Trust's guidelines; monitoring "as of's" and advising
broker-dealers of the necessity to reimburse the Trust when the
as of loss from a transaction exceeds the thresholds established
by the Trust; and monitoring, administering and updating (but not
verifying the accuracy of) the MENTAP/Market Advisor database.
E. At the request of Trust, DST shall use reasonable efforts to
provide the services set forth in Section 4.D. other than through
DST's usual methods and procedures to utilize the TA2000 System,
that is by performing services requiring more manual intervention
by DST, either in the entry of data or in the modification or
amendment of reports generated by the TA2000 System, or where
information is provided to DST after the commencement of the
nightly processing cycle of the TA2000 System, thereby decreasing
the effective time for performance by DST (the "Exception
Services").
F. DST shall use reasonable efforts to provide, reasonably promptly
under the circumstances, the same services with respect to any
new, additional functions or features or any changes or
improvements to existing functions or features as provided for in
the Trust's instructions, prospectus or application as amended
from time to time, for the Trust; provided (i) DST is advised in
advance by the Trust 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 Trust requires an
enhancement or modification to the TA2000(TM) System or to
operations as presently conducted by DST, DST shall not be liable
therefore until such modification or enhancement is installed on
the TA2000(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
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the current level of service, DST shall advise the Trust of the
amount of such increase and if the Trust 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
requested by the Trust until it has consented thereto in writing.
G. The Trust shall have the right to add all new Funds of the Trust
to the TA2000(TM) System, provided that the Trust provides DST
with at least thirty (30) days' prior written notice and
provided, further, 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 Funds shall
be as set forth in Exhibit A, as hereinafter defined, for the
remainder of the contract term except as such Fund uses
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. Notwithstanding the
foregoing, nothing herein is intended to, nor does it, prohibit
the Trust from offering Funds under a "private label" arrangement
whereby such Funds consist of omnibus accounts whose shareowner
detail, reflecting ownership of the shares of the omnibus
account, are maintained on another shareholder accounting and
recordkeeping system other than on the TA2000 System.
5. LIMIT OF AUTHORITY.
Unless otherwise expressly limited by the resolution of appointment or
by subsequent action by the Trust, 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 Trust will file with DST:
A. If the appointment of DST was theretofore expressly limited, a
certified copy of a resolution of the Board of Trustees of the
Trust increasing the authority of DST;
B. A certified copy of the amendment to the Declaration of Trust of
the Trust authorizing the increase of stock;
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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, or an opinion of counsel that the order
or consent of no other governmental or regulatory authority is
required;
D. Opinion of counsel for the Trust stating:
(1) The status of the additional shares of stock of the Trust
under the '33 Act and any other applicable federal or
state statute; and
(2) That the additional shares are, or when issued will be,
validly issued, fully paid and non-assessable.
6. COMPENSATION AND EXPENSES.
A. In consideration for its services hereunder as Transfer Agent and
Dividend Disbursing Agent, the Trust will pay to DST, from time
to time, a reasonable compensation for all services rendered as
Agent and, also, all DST's reasonable billable expenses, charges,
counsel fees, and other disbursements ("Compensation and
Expenses") incurred in connection with the agency. "Expenses" are
more fully described in Section 6.B. of this Agreement. Such
Compensation and Expenses are set forth in a separate schedule
previously agreed to by the Trust and DST, a copy of which is
attached hereto as Exhibit A. If the Trust 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 Expenses for which it shall be
entitled to reimbursement under this Agreement.
B. The Trust 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 incurred in connection with the review of the legal
sufficiency of documentation provided by a shareholder or
otherwise as to the advisability of complying with the request or
instruction of a shareholder or person purporting to act on
behalf of a shareholder; outside printing and mailing firms
(including Output Technologies, Inc. and its affiliates ["OTI"]);
7
magnetic tapes, reels or cartridges (if sent to the Trust or to a
third party at the Trust's request) and magnetic tape handling
charges; off-site record storage and media for storage of records
(e.g., microfilm, microfiche, optical platters, computer tapes);
computer equipment installed at the Trust's request at the
Trust's or a third party's premises; telecommunications equipment
and telephone/telecommunication lines between the Trust 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 other than by OTI (at a charge of .035/record); and
National Securities Clearing Corporation ("NSCC") transaction
fees to the extent any of the foregoing are paid or incurred by
DST. The Trust 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 Trust will be
promptly reimbursed by the Trust.
C. Amounts due hereunder shall be due and paid on or before the
thirtieth (30th) calendar day after receipt of the statement
therefor by the Trust (the "Due Date"). The Trust 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 Trust shall pay a late charge equal to the lesser of
the maximum amount permitted by applicable law or the product of
one and one-half (1 1/2) percentage points per month 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. 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
Trust'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 Trust shall, on
or before the Due Date, pay all undisputed amounts due hereunder
and notify DST in writing of any
8
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 Trust 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 anniversary of this Agreement, 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 DST's cost of performance hereunder;
(3) DST may charge for additional features of TA2000 used by
the Trust which features are not consistent with the
Trust's current processing requirements; and
(4) In the event DST, at the Trust's request or direction,
performs Exception Services, DST shall be entitled to
increase the fees and charges for such Exception Services
from those set forth on Exhibit A to the extent such
Exception Services increase DST's cost of performance.
If DST notifies the Trust 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 Trust'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 Trust of an increase in fees or charges under
subparagraphs (3) or (4) of this Section 6.E., the parties shall
confer, diligently and in good faith, and agree upon a new fee to
cover such new Trust feature.
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7. OPERATION OF DST SYSTEM.
In connection with the performance of its services under this Agreement,
DST is responsible for such items as:
A. That entries in DST's records, and in the Trust's records on the
TA2000(TM) System created by DST and DST's affiliates, accurately
reflect the orders, instructions, and other information received
by DST and such affiliates from the Trust, the Trust's
distributor, manager or principal underwriter, Xxxxx Xxxxxxx
Asset Management, (USA) Inc. ("JPM") and its affiliates, entities
from whom JPM or the Trust have directed DST to accept orders,
instructions or other information, the Trust's investment
adviser, banks or other entities which DST has been advised by
the Trust or JPM are affiliated with or a correspondent of JPM,
or the Trust's administrator (each an "Authorized Person"),
broker-dealers or shareholders (existing or new). DST has
currently been instructed, by way of example and not limitation,
to accept telephone instructions from any person reasonably
believed by DST to be a representative of an Authorized Person,
to accept third party checks initiated by or received from or
through a broker/dealer or a JPM-customer relationship, to accept
transactions and documentation by fax in accordance with the
guidelines established by an Authorized Person, to allow
corporations, partnerships, trusts and other accounts not
registered in the name of a single individual and individually
owned accounts to have telephone or "VOICE" transaction
processing privileges (the "Privileges"), to establish Privileges
on all accounts unless the establishing shareholder explicitly
directs that telephone exchanges and redemptions not be permitted
and to accept and to effectuate transmissions and trades entered
on a remote basis by JPM and banks affiliated with JPM (without
verification of the contents of such transmissions and trades);
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 Trust'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 Trust
and the data in the Trust's records on the TA2000(TM) System;
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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 Trust's records on the TA2000(TM) System;
E. The deposit daily in the Trust's appropriate special bank account
of all checks and payments received by DST from NSCC,
broker-dealers or shareholders for investment in shares;
F. Notwithstanding anything herein to the contrary, with respect to
"as of" adjustments, DST will not assume one hundred percent
(100%) responsibility for losses resulting from "as ofs" due to
clerical errors or misinterpretations of shareholder
instructions, but DST will discuss with the Trust 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 Trust where DST in its discretion deems
that to be appropriate;
G. The requiring of proper forms of instructions, signatures and
signature guarantees and any necessary documents supporting the
opening of shareholder accounts, transfers, redemptions and other
shareholder account transactions, all in conformance with DST's
present procedures as set forth in its Legal Manual, Third Party
Check Procedures, Checkwriting Draft Procedures, and Signature
Guarantee Procedures (collectively the "Procedures") with such
changes or deviations therefrom as may be from time to time
required or approved by the Trust, 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 a current, duplicate set of the Trust's
essential records at a secure separate location, in a form
available and usable forthwith in the event of any breakdown or
disaster disrupting its main operation.
8. INDEMNIFICATION.
A. DST shall at all times use reasonable care, due diligence and act
in good faith in performing its duties under this Agreement. DST
shall provide its services hereunder in accordance with the '34
Act, and other Federal laws, rules and
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regulations of governmental authorities having jurisdiction over
DST. In the absence of bad faith, willful misconduct, knowing
violations of applicable law pertaining to the manner in which
transfer agency services are to be performed by DST (excluding
any violations arising directly or indirectly out of the actions
or omissions to act of third parties unaffiliated with DST),
reckless disregard of the performance of its duties, or
negligence on its part, DST shall not be liable for any action
taken, suffered, or omitted by it or for any error of judgment
made by it in the performance of its duties under this Agreement.
For those activities or actions delineated in the Procedures, DST
shall be presumed to have used reasonable care, due diligence and
acted in good faith if it has acted in accordance with the
Procedures, copies of which have been provided to the Trust and
reviewed and approved by the Trust's counsel, as amended from
time to time with approval of counsel, or for any deviation
therefrom approved by the Trust or DST counsel.
B. DST shall not be responsible for, and the Trust shall indemnify
and hold DST harmless from and against, any and all losses,
damages, reasonable costs, reasonable charges, reasonable
counsel fees, payments, reasonable expenses and liability (the
"Adverse Consequences") which may be asserted against DST or for
which DST may be held to be liable, arising out of or
attributable to:
(1) All actions of DST required to be taken by DST pursuant to
this Agreement, provided that DST has acted in good faith
and with due diligence and reasonable care;
(2) The Trust's refusal or failure to comply with the terms of
this Agreement, the Trust's negligence or willful
misconduct, or the breach of any representation or
warranty of the Trust hereunder;
(3) The good faith reliance on, or the carrying out of, any
written or oral instructions or requests of persons
designated by the Trust in writing (see Exhibit B) from
time to time as authorized to give instructions on its
behalf or representatives of an Authorized Person or DST's
good faith reliance on, or use of, information, data,
records and documents received from, or which have been
prepared and/or maintained by the Trust, its investment
advisor, its sponsor or its principal underwriter;
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(4) Defaults by dealers or shareowners with respect to payment
for share orders previously entered;
(5) The offer or sale of Shares in violation of any
requirement under federal securities laws or regulations
or the securities laws or regulations of any state or in
violation of any stop order or other determination or
ruling by any federal agency or state with respect to the
offer or sale of such shares in such state (unless such
violation results from DST's failure to comply with
written instructions of the Trust or of any officer of the
Trust that no offers or sales be input into the Trust's
securityholder records in or to residents of such state);
(6) Any error or mistake of the Trust, any Authorized Person,
and any agent designated by the Trust in the use of the
TA2000(TM) System, the data center, computer and related
equipment used to access the TA2000(TM) System (the "DST
Facilities"), and control procedures relating thereto in
the verification of output and in the remote input of
data;
(7) Errors, inaccuracies, and omissions in, or errors,
inaccuracies or omissions of DST arising out of or
resulting from such errors, inaccuracies and omissions in,
the Trust's records, shareholder and other records,
delivered to DST hereunder by the Trust or its prior
agent(s);
(8) Actions or omissions to act by the Trust or agents
designated by the Trust with respect to duties assumed
thereby as provided for in Section 21 hereof; and
(9) DST's performance of Exception Services except where DST
acted or omitted to act in bad faith, with reckless
disregard of its obligations or with gross negligence.
C. Except where DST is entitled to indemnification under Section
8.B. hereof and with respect to "as ofs" set forth in Section
7.F., DST shall indemnify and hold the Trust harmless from and
against any and all Adverse Consequences arising out of DST's
failure to comply with the terms of this Agreement or arising out
of or attributable to DST's negligence, willful misconduct or
reckless disregard of its obligations under
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this Agreement or DST's breach of any of its representations or
warranties under this Agreement.
D. EXCEPT FOR VIOLATIONS OF SECTION 23, IN NO EVENT AND UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY TO THIS AGREEMENT BE LIABLE TO
ANYONE, INCLUDING, WITHOUT LIMITATION TO THE OTHER PARTY, FOR
CONSEQUENTIAL DAMAGES FOR ANY ACT OR FAILURE TO ACT UNDER ANY
PROVISION OF THIS AGREEMENT EVEN IF ADVISED OF THE POSSIBILITY
THEREOF.
E. Promptly after receipt by an indemnified person of notice of the
commencement of any action, such indemnified person will, if a
claim in respect thereto is to be made against an indemnifying
party hereunder, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the
indemnifying party will not relieve an indemnifying party from
any liability that it may have to any indemnified person for
contribution or otherwise under the indemnity agreement contained
herein except to the extent it is prejudiced as a proximate
result of such failure to timely notify. In case any such action
is brought against any indemnified person and such indemnified
person seeks or intends to seek indemnity from an indemnifying
party, the indemnifying party will be entitled to participate in,
and, to the extent that it may wish, assume the defense thereof
(in its own name or in the name and on behalf of any indemnified
party or both with counsel reasonably satisfactory to such
indemnified person); provided, however, if the defendants in any
such action include both the indemnified person and an
indemnifying party and the indemnified person shall have
reasonably concluded that there may be a conflict between the
positions of the indemnified person and an indemnifying party in
conducting the defense of any such action or that there may be
legal defenses available to it and/or other indemnified persons
which are inconsistent with those available to an indemnifying
party, the indemnified person or indemnified persons shall have
the right to select one separate counsel (in addition to local
counsel) to assume such legal defense and to otherwise
participate in the defense of such action on behalf of such
indemnified person or indemnified persons at such indemnified
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party's sole expense. Upon receipt of notice from an indemnifying
party to such indemnified person of its election so to assume the
defense of such action and approval by the indemnified person of
counsel, which approval shall not be unreasonably withheld (and
any disapproval shall be accompanied by a written statement of
the reasons therefor), the indemnifying party will not be liable
to such indemnified person hereunder for any legal or other
expenses subsequently incurred by such indemnified person in
connection with the defense thereof. An indemnifying party will
not settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified persons
are actual or potential parties to such claim, action, suit or
proceeding) unless such settlement, compromise or consent
includes an unconditional release of each indemnified person from
all liability arising out of such claim, action, suit or
proceeding. An indemnified party will not, without the prior
written consent of the indemnifying party, settle or compromise
or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought
hereunder. If it does so, it waives its right to indemnification
therefor.
F. In any case an indemnifying person may be asked to indemnify or
save an indemnified person harmless, the indemnified person shall
use reasonable care to (i) fully and promptly advise the
indemnifying person of all pertinent facts concerning the
situation in question, and (ii) timely advise the indemnifying
person of any matter as to which the indemnified person is aware
that a claim which may give rise to Adverse Consequences has been
asserted or is being threatened and appears reasonably likely to
be asserted.
9. CERTAIN COVENANTS OF DST AND THE TRUST.
A. All requisite steps will be taken by the Trust from time to time
when and as necessary to register the Shares for sale in all
states in which the Shares shall at the time be offered for sale
and require registration. If at any time the Trust receives
notice of any stop order or other proceeding in any such state
affecting such registration or the sale of the Shares, or of any
stop order or other proceeding under
15
the federal securities laws affecting the sale of the Shares, the
Trust 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 Exhibit C, to establish
and to maintain facilities and procedures reasonably acceptable
to the Trust for safekeeping of Certificates, check forms, and
facsimile signature imprinting devices, if any, and for the
preparation or use, and the keeping account of, such
Certificates, forms and devices, and to carry such insurance as
DST 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
Trust and will be preserved and will be surrendered promptly to
the Trust on request.
D. DST agrees to furnish the Trust annual reports of (i) DST's
financial condition, consisting of a balance sheet, earnings
statement and any other financial information reasonably
requested by the Trust, and (ii) a report in accordance with
Statements on Auditing Standards No. 70 (the "SAS 70 Report").
The annual financial statements will be certified by DST's
certified public accountants.
E. DST represents and agrees that it will use its best efforts to
keep current on the trends of the investment company industry
relating to shareholder services and will use its best efforts to
continue to modernize and improve. Notwithstanding the foregoing,
(i) DST shall not be liable for failing to make any modification
or improvement as to the necessity of which the Fund has not
advised DST in writing and (ii) for any delay in the
implementation of such modification or improvement where DST
reasonably requires more time than was permitted by circumstances
or such regulations.
F. DST will permit the Trust and its authorized representatives to
make periodic inspections of its operations as such would involve
the Trust at reasonable times during business hours subject to
such authorized representatives' execution of DST's
"Confidentiality and Limited Use Agreement, a blank copy of which
is attached hereto as Exhibit D.
16
G. DST agrees to use its best efforts to provide in Kansas City at
the Trust's expense two (2) man weeks of training for the Trust's
personnel in connection with use and operation of the TA2000(TM)
System. All travel and reimbursable expenses incurred by the
Trust's personnel in connection with and during training at DST's
Facility shall be borne by the Trust. At the Trust's option and
expense, DST also agrees to use its best efforts to provide an
additional two (2) man weeks of training at the Trust's facility
for the Trust's personnel in connection with the conversion to
the TA2000(TM) System. Reasonable travel, per diem and
reimbursable expenses incurred by DST personnel in connection
with and during training at the Trust's facility or in connection
with the conversion shall be borne by the Trust.
H. DST shall reasonably cooperate with the Trust's independent
public accountants and shall take all reasonable action in the
performance of its obligations under this Agreement to assure
that all readily necessary information is made available to such
accountants for the expression of their opinion as such may be
required from time to time. Special reports or information may be
charged for. A report is "Special" if it is not regularly
produced by TA2000(TM) or requires special programming.
10. RECAPITALIZATION OR READJUSTMENT.
In case of any recapitalization, readjustment or other change in the
capital structure of the Trust requiring a change in the form of
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 Trust;
B. Certified copy of the amendment to the Declaration of Trust 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 Trustees of the Trust, with a certificate of the
Secretary of the Trust as to such approval;
E. Opinion of counsel for the Trust stating:
17
(1) The status of the shares of stock of the Trust in the new
form under the '33 Act, 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 registered, validly issued,
fully paid and nonassessable.
11. STOCK CERTIFICATES ("CERTIFICATES").
The Trust will furnish DST with a sufficient supply of blank
Certificates and from time to time will renew such supply upon the
request of DST. Such Certificates will be signed manually or by
facsimile signatures of the officers of the Trust authorized by law and
by bylaws to sign Certificates, and if required, will bear the corporate
seal or facsimile thereof.
12. DEATH, RESIGNATION OR REMOVAL OF SIGNING OFFICER.
The Trust will file promptly with DST written notice of any change in
the officers authorized to sign Certificates, written instructions or
requests, together with a revised Exhibit B. In case any officer of the
Trust who will have signed manually or whose facsimile signature will
have been affixed to blank Certificates will die, resign, or be removed
prior to the issuance of such certificates, DST may issue or register
such Certificates as the Certificates of the Trust notwithstanding such
death, resignation, or removal, until specifically directed to the
contrary by the Trust in writing. In the absence of such direction, the
Trust will file promptly with DST such approval, adoption, or
ratification as may be required by law.
13. FUTURE AMENDMENTS OF DECLARATION OF TRUST AND BYLAWS.
The Trust will promptly file with DST copies of all material amendments
to its Declaration of Trust or Bylaws made after the date of this
Agreement.
14. INSTRUCTIONS, OPINION OF COUNSEL AND SIGNATURES OR JPM .
Any time DST shall be in doubt as to any proposed or requested action or
omission to be taken or omitted by it, DST may apply to any person
authorized by the Trust to give instructions to DST. DST may with the
approval of a Trust officer consult with legal counsel for the Trust or
may consult with DST's own legal counsel at DST's own expense, with
respect to any matter involving a question of law involved in any action
to be taken or omitted by DST in connection with the agency. DST 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.
Notwithstanding the foregoing, the Trust shall reimburse DST for outside
counsel
18
fees incurred in connection with the review of the legal sufficiency of
documentation provided by a shareholder or otherwise as to the
advisability of complying with the request of a shareholder or person
purporting to act on behalf of a shareholder. 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 Trust. It will also be
protected in recognizing Certificates which it reasonably believes to
bear the proper manual or facsimile signatures of the officers of the
Trust, and the proper countersignature of any former Transfer Agent or
Registrar, or of a co-Transfer Agent or co-Registrar.
15. FORCE MAJEURE AND DISASTER RECOVERY PLANS.
A. DST shall not be responsible or liable for its failure or delay
in performance of its obligations under this Agreement arising
out of or caused, directly or indirectly, by circumstances beyond
its reasonable control, including, without limitation: any
interruption, loss or malfunction or any utility, transportation,
computer (hardware or software) or communication service;
inability to obtain labor, material, equipment or transportation,
or a delay in mails; governmental or exchange action, statute,
ordinance, rulings, regulations or direction; war, strike, riot,
emergency, civil disturbance, terrorism, vandalism, explosions,
labor disputes, freezes, floods, fires, tornadoes, acts of God or
public enemy, revolutions, or insurrection; or any other cause,
contingency, circumstance or delay not subject to DST's
reasonable control which prevents or hinders DST's performance
hereunder.
B. DST currently maintains an agreement with a third party whereby
DST is to be permitted to use on a "shared use" basis a "hot
site" (the "Recovery Facility") maintained by such party in event
of a disaster rendering the DST Facilities inoperable. DST has
developed and is continually revising a business contingency plan
(the "Business Contingency Plan") detailing which, how, when, and
by whom data maintained by DST at the DST Facilities will be
installed and operated at the Recovery Facility. Provided the
Trust is paying its pro rata portion of the charge therefor, DST
would, in event of a disaster rendering the DST Facilities
inoperable, use reasonable efforts to convert the TA2000(TM)
System containing the designated
19
Trust 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 Trust 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 Declaration of Trust of the Trust 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
Declaration of Trust 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 Trustees
of the Trust, will be certified by the Secretary or an Assistant
Secretary of the Trust under the Trust's seal.
17. RECORDS.
DST will maintain customary records in connection with its agency, and
particularly will maintain those records required to be maintained
pursuant to subparagraph (2) (iv) of paragraph (b) of Rule 31a-1 under
the Investment Company Act of 1940, if any.
18. DISPOSITION OF BOOKS, RECORDS AND CANCELED CERTIFICATES.
DST may send periodically to the Trust, or to where designated by the
Secretary or an Assistant Secretary of the Trust, all books, documents,
and all records no longer deemed needed for current purposes and
Certificates which have been canceled in transfer or in exchange, upon
the understanding that such books, documents, records, and Certificates
will be maintained by the Trust under and in accordance with the
requirements of Section 17Ad-7 adopted under the Securities Exchange Act
of 1934. Such materials will not be
20
destroyed by the Trust without the consent of DST (which consent will
not be unreasonably withheld), but will be safely stored for possible
future reference.
19. PROVISIONS RELATING TO DST AS TRANSFER AGENT.
A. DST will make original issues of Certificates upon written
request of an officer of the Trust and upon being furnished with
a certified copy of a resolution of the Board of Trustees
authorizing such original issue, an opinion of counsel as
outlined in subparagraphs 1.G. and 5.D. of this Agreement, any
documents required by Sections 5. or 10. of this Agreement, and
necessary funds for the payment of any original issue tax.
B. Before making any original issue of Certificates of the Trust
will furnish DST with sufficient funds to pay all required taxes
on the original issue of the stock, if any. The Trust will
furnish DST such evidence as may be required by DST to show the
actual value of the stock. If no taxes are payable DST will be
furnished with a certified statement from an officer of the Trust
to that effect.
C. Shares of stock represented by Certificates will be transferred
and new Certificates issued in transfer, or Shares of stock
accepted for redemption and funds remitted therefor, or book
entry transfer be effected, upon surrender of the old
Certificates in form or receipt by DST of instructions deemed by
DST properly endorsed for transfer or redemption accompanied by
such documents as DST may deem necessary to evidence the
authority of the person making the transfer or redemption. DST
reserves the right to refuse to transfer or redeem Shares until
it is satisfied that the endorsement or signature on the
Certificate or any other document is valid and genuine, and for
that purpose it may require a guaranty of signature in accordance
with the Signature Guarantee Procedures. DST will incur no
liability and shall be indemnified and held harmless by the Fund
for any action taken by it in accordance with an instruction
bearing what purports to be a signature guarantee or medallion of
an Eligible Guarantor Institution or otherwise in accordance with
DST's Signature Guarantee Procedures adopted pursuant to 17
C.F.R. Section 240.17Ad-15 under the Securities and Exchange Act
of 1934. DST also reserves the right to refuse to transfer or
redeem shares until DST is satisfied that the requested transfer
or redemption is legally authorized, and it will incur no
liability for the refusal in good
21
faith to make transfers or redemptions which, in its reasonable
judgment, are improper or unauthorized. Authority to perform a
redemption shall be suspended when the Trust suspends the
shareholders' right of redemption provided that the Trust
delivers written notice of such suspension to DST. DST may, in
effecting transfers or redemptions, rely upon Simplification
Acts, UNIFORM COMMERCIAL CODE or other statutes which protect it
and the Trust in not requiring complete fiduciary documentation.
In cases in which DST is not directed or otherwise required to
maintain the consolidated records of shareholder's accounts, DST
will not be liable for any loss which may arise by reason of not
having such records.
D. When mail is used for delivery of Certificates, DST will forward
Certificates in "nonnegotiable" form by first class or registered
mail and Certificates in "negotiable" form by registered mail,
all such mail deliveries to be covered while in transit to the
addressee by insurance arranged for by DST.
E. DST will issue and mail subscription warrants, Certificates
representing stock dividends, exchanges or split ups, or act as
Conversion Agent upon receiving written instructions from any
officer of the Trust and such other documents as DST deems
necessary.
F. DST will issue, transfer, and split up Certificates and will
issue Certificates of stock representing full Shares upon
surrender of scrip certificates aggregating one full share or
more when presented to DST for that purpose upon receiving
written instructions from an officer of the Trust and such other
documents as DST may deem necessary.
G. DST may issue new Certificates in place of Certificates
represented to have been lost, destroyed, stolen or otherwise
wrongfully taken upon receiving instructions from the Trust and
indemnity satisfactory to DST and the Trust, and may issue new
Certificates in exchange for, and upon surrender of, mutilated
Certificates. Such instructions from the Trust will be in such
form as will be approved by the Board of Trustees of the Trust
and will be in accordance with the provisions of law and the
bylaws of the Trust governing such matter.
22
H. DST will supply a shareholder's list to the Trust for its annual
meeting upon receiving a request from an officer of the Trust. It
will also, at the expense of the Trust, supply lists at such
other times as may be requested by an officer of the Trust.
I. Upon receipt of written instructions of an officer of the Trust,
DST will, at the expense of the Trust, address and mail notices
to shareholders.
J. In case of any request or demand for the inspection of the
securityholder files or stock books of the Trust or any other
books or records in the possession of the Trust in DST's
possession, DST will not permit such inspection, except (i) after
prior notification to and approval in writing by the Trust or
Advisor as appropriate, which approval shall not be unreasonably
withheld and may not be withheld or delayed where DST may be
exposed to civil or criminal contempt proceedings for failure to
comply when requested to divulge such information by duly
constituted authorities, or (ii) when so requested by the Trust
or an Authorized Person. Nothing in the foregoing is intended to,
nor does it, prohibit or deny to DST the right to disclose
information requested by subpoena, Court Order, administrative
order or request issued by a federal, state or local authority
purporting to be issued under statutory authority or a
self-regulatory organization registered under the '34 Act. DST
shall use reasonable efforts to advise the Trust concerning
subpoenas received for records of the Trust and, upon being so
advised, the Trust shall be responsible for handling and
responding thereto.
20. PROVISIONS RELATING TO DIVIDEND DISBURSING AGENCY.
A. DST will, at the expense of the Trust, provide a special form of
check containing the imprint of any device or other matter
desired by the Trust. Said checks must, however, be of a form and
size convenient for use by DST.
B. If the Trust 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 Trust.
C. If the Trust 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 Trust; or if postage stamps are to be affixed to
the
23
envelopes, the stamps or the cash necessary for such stamps must
be furnished by the Trust.
D. DST shall establish and maintain on behalf of the Trust one or
more deposit accounts as Agent for the Trust, 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 TRUST OR AGENTS DESIGNATED BY THE TRUST.
A. The Trust or its designated agents other than DST may assume
certain duties and responsibilities with respect to the
operations of the Trust, including (with DST's agreement)
providing all, or a portion, of those services which DST is
obligated to provide under Section 4.D. of this Agreement.
B. To the extent the Trust or its agent or affiliate assumes DST's
duties and responsibilities (which assumption should be embodied
in writing), DST shall be relieved from all responsibility and
liability therefor (including any Adverse Consequences directly
or indirectly arising out of or resulting from the actions or
omissions of the Trust or its designees, as well as from any "as
of" liability or withholding reversals in connection therewith)
and DST is hereby indemnified and held harmless against any
liability therefrom in the same manner and degree as provided for
in Section 8 hereof.
C. Initially, with respect to accounts serviced by JPM or banks
affiliated with or a correspondent of JPM, the Trust or its
designees shall be responsible for the following: (i) answering
and responding to telephone inquiries from shareholders and
brokers; (ii) accepting shareholder and broker instructions
(either or both oral and written) and (A) transmitting to DST
orders (transactions and maintenance) based on such instructions
for input into TA2000 by DST or (B) themselves
24
inputting such orders into TA2000 on a remote basis; (iii)
preparing and mailing confirmations; (iv) classifying the status
of shareholders and shareholder accounts under applicable tax
law and in accordance with the capabilities provided on TA2000,
and performing all compliance functions with respect thereto,
including without limitation obtaining certified TIN's, Form
W-8's and other documentation, and properly coding accounts
(social codes, tax status, foreign accounts and so forth) as
provided for on TA2000; (v) on a remote basis establishing
shareholder accounts on the TA2000(TM) System, establishing the
appropriate privileges thereupon and assigning social codes and
Taxpayer Identification Number codes thereof; (vi) disbursing
monies of the Trust; (vii) sending redemption and dividend wires
in accordance with instructions received; and (viii) following
up and collecting upon unsettled trade orders and unpaid
broker-dealer, institutional or shareholder "as of's".
Additionally, the Trust or its designees are also responsible
for verifying the accuracy of, and notifying DST as to errors
in, the MENTAP/Market Advisor and Confluence FundStation
databases.
22. TERMINATION OF AGREEMENT.
A. 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;
(2) failure by the other party or its assigns to perform its
duties (including any material interruption or cessation
of its operations) 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, unless such failure is excused under
Section 15 of this Agreement; or
(3) merger, consolidation or sale of substantially all of the
assets of the other party or its assigns; or
(4) acquisition of a controlling interest in the other party
or its assigns by any third party except as may presently
exist within the previous sixty (60) days.
25
B. In the event of termination, the Trust will promptly pay DST all
amounts due to DST hereunder, including, if this Agreement is
terminated by the Trust for any reason other than those set forth
in Sections 22.A. hereof, the termination fee set forth in
Exhibit A to this Agreement shall apply.
D. In the event of termination, DST will use its best efforts to
transfer the records of the Trust to the designated successor
transfer agent, to provide reasonable assistance to the Trust and
its designated successor transfer agent, and to provide other
information relating to its services provided hereunder (subject
to the recompense of DST for such assistance at its standard
rates and fees for personnel then in effect at that time);
provided, however, as used herein "reasonable assistance" and
"other information" shall not include assisting any new service
or system provider to modify, alter, enhance, or improve its
system or to improve, enhance, or alter its current system, or to
provide any new functionality or to require DST to disclose any
DST Confidential Information, as hereinafter defined, or any
information which is otherwise confidential to DST.
23. CONFIDENTIALITY.
A. DST agrees on behalf of itself, its affiliates, its officers and
employees, except as provided in Section 19.J. hereof, or as
otherwise required by law, DST will keep confidential all records
of and information in its possession relating to the Trust 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 Trust. Notwithstanding the foregoing, DST shall be permitted
in the ordinary course of business to provide such information to
third parties providing services to DST which DST utilizes in
connection with the services DST provides to the Trust under this
Agreement or in accordance with Section 19.J. of this Agreement.
B. The Trust on behalf of itself, its affiliates, its officers and
employees and all entities which it directs DST to provide any of
the following information agrees to keep confidential all
financial statements and other financial records (other than
statements and records relating solely to the Trust's business
dealings with DST) and all manuals, systems and other technical
information and data, not publicly disclosed, relating to DST's
operations and programs furnished to it by DST
26
pursuant to this Agreement and will not disclose the same to any
person except at the request or with the consent of DST.
C. (1) The Trust 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 Trust's access
to the TA2000(TM) System or computer hardware or software
may permit the Trust 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 Trust agrees to
maintain the confidentiality of the DST Confidential
Information of which it is, or becomes, aware or to
which it has access. (2) The Trust 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 Trust 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 Trust 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 Trust consents to
27
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 of ten
termination or expiration of this Agreement for a period
(10) years.
24. CHANGES AND MODIFICATIONS.
A. During the term of this Agreement DST will use on behalf of the
Trust 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 Trust to its shareholders, 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 Trust 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 Trust 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 Trust 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
Trust is given thirty (30) days prior notice to allow the Trust
to change its procedures and DST provides the Trust with revised
operating procedures and controls.
C. All enhancements, improvements, changes, modifications 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, XXX.
00
00. ASSIGNMENT AND SUBCONTRACTORS.
A. Neither this Agreement nor any rights or obligations hereunder
may be assigned by either party hereto without the written
consent of the other party. In the event of a mutually agreed to
assignment, each party shall remain liable for the performance of
its assignee(s). DST may, however, employ agents to assist it in
performing its duties hereunder.
B. Notwithstanding anything in this Agreement to the contrary,
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, the National
Securities Clearing Commission and telecommunication companies,
provided, if DST selected such company, DST shall have exercised
due care in selecting the same.
26. LIMITATIONS ON LIABILITY.
A. Notwithstanding anything in this Agreement to the contrary, each
of the four Trusts which executed this Agreement, together with
each Fund which is a part of such Trust (SEE, Appendix I) is and
shall be regarded for all purposes hereunder as a separate party
apart from each other Trust and all other Funds. To the extent
that a Trust is comprised of more than one Fund, each Fund shall
be regarded for all purposes hereunder as a separate party apart
from each other Fund. Unless the context otherwise requires, with
respect to every transaction covered by this Agreement, every
reference herein to the Trust shall be deemed to relate solely to
the particular Fund or Trust to which such transaction relates.
Under no circumstances shall the rights, obligations or remedies
with respect to a particular Trust or a particular Fund
constitute a right, obligation or remedy applicable to any other
Trust or Fund. The use of this single document to memorialize the
separate agreement of each Trust and each Fund herein is
understood to be for clerical convenience only and shall not
constitute any basis for joining the Trusts or Funds for any
reason.
B. Notice is hereby given that a copy of the Trust'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 Trust by the
29
undersigned duly authorized representative of the Trust 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 Trust and shall not be binding upon
any trustee, officer or shareholder of the Trust 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 execution, expiration, termination or
cancellation of this Agreement or the performance of services
hereunder until any statute of limitations applicable to the
matter at issues shall have expired.
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.
30
H. Neither the execution nor performance of this Agreement shall be
deemed to create a partnership or joint venture by and between
the Trust 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 Trust. This Agreement is between
DST and the Trust 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.
I. 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.
J. 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.
K. 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.
L. All notices to be given hereunder shall be deemed properly given
if delivered in person or if sent by U.S. mail, first class,
postage prepaid, or if sent by facsimile and thereafter confirmed
by mail as follows:
If to DST:
DST Systems, Inc.
000 X. 00xx Xx., 0xx Xx.
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Senior Vice President-Full Service
Facsimile No.: 000-000-0000
With a copy of non-operational notices to:
31
DST Systems, Inc.
000 X. 00xx Xx., 0xx Xx.
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Legal Department
Facsimile No.: 000-000-0000
If to the Trust:
Xxxx X. Xxxxxxxx
Vice President and Assistant Secretary
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: 000-000-0000
Fax 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.
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:
---------------------------------
Title:
------------------------------
UNDISCOVERED MANAGERS FUNDS
By:
---------------------------------
Title:
------------------------------
32
EXHBIT A
FEE SCHEDULE
I. TRANSFER AGENCY
A. BASE FEES
Complex Base Fee - $1,316,250 per year
CUSIP Fees - The standard Chase Vista rate of $21,000 per year is bundled
in the complex fee.
CUSIP Base Fee for Omnibus Positions (DFR CUSIPS) - $13,750 per CUSIP
per year
Closed Cusips - $150 per month through May of the following Year.
Additional Items Bundled in Complex Fee:
- SuperSelect Reports
- Bulk Transmissions
- Standard Tape Generations
B. ACCOUNT MAINTENANCE AND PROCESSING FEES
Non Institutional Non Network Level 3 Open Accounts - $16.35 per account
per year
Non-Institutional Network Level 3 Open Accounts - $12.85 per account per
year
Closed Accounts - Included in Base Fee
Transaction Processing
Contingency Processing - $1,000 per initiation + $5.00 per retail
transaction and/or $10.00 per institutional transaction (for entities
that remotely process; includes financial, non-financial, confirmed
orders, omnibus and maintenance transactions)
Non-Institutional Omnibus Transactions - $1.00 per transaction
Phone Calls - Inbound & Outbound, including Fulfillment - $4.60 per call
Lost Shareholder Compliance - $1.25 per lost s/h account per year + $1.60
per database match
Checkwriting - included in base/account fees
ACH Transactions & Listbill Processing - included in base/account fees
Contingent Deferred Sales Charge / Sharelot Accounting - included in
base/account fees
12b-1 / TASS Processing - included in base/account fees
Investor Facility - included in base/account fees
Special 12b-1 Runs (more than 1 mo cycle and 2 quarterly cycles) -
$1,338/quarter plus $.01 per open and closed account per cycle
33
TRAC-2000 - separate schedule
TA2000 Voice System - see Exhibit A
*NSCC - see Exhibit B
*Remote TA2000 AWD/IWS Software and Licensing Fees - under separate
schedule
*FAN - under separate schedule
Vision - under separate schedule
Fanmail - under separate schedule
C. SHAREOWNER/MANAGEMENT COMPANY CHARGES
Fiduciary Trustee Fees:
Paid By the Shareowner:
Non-Employees (Traditional and Xxxx XXX) - $15.00 per social
security # per plan type per year
Simples (Non DFI) - $10.00 per social security # per plan type per
year, $0 Set-up charge
Simples (DFI) - $10.00 per social security # per plan type per
year, $10.00 Set-up charge
Paid By the Management Company:
Employees (Traditional and Xxxx XXX) - $5.00 per account per year
No Fee IRA's (Traditional and Xxxx XXX) - $15.00 per social
security # per plan type per year
403(b) Loan Fees:
Application/Origination Fee - $25.00 per loan
Annual Processing Fee - $25.00 per loan per year
D. PROGRAMMING (2001 STANDARD RATES)
*COBOL Programmer:
Dedicated Resources $150,000 per year
On-Request: $120.00 per hour
*Workstation Programmer:
Dedicated Resources $185,000 per year
On-Request $150.00 per hour
*Business Analyst/Tester:
Dedicated Resources $95,000 per year
On-Request $75.00 per hour
34
*Web Developer:
Dedicated Resources $220,000 per year
On-Request $180.00 per hour
*Full Service Staff Support:
Senior Staff Support $75 per hour
Staff Support $55 per hour
Clerical Support $45 per hour
NOTES TO THE ABOVE FEE SCHEDULE
A. The above schedule does not include out of pocket expenses incurred by
DST on the Fund's behalf. Examples of out of pocket expenses include but
are not limited to forms, postage, mailing services, telephone line and
long distance charges, client remote hardware, disaster recovery (range
$0.08-$0.12 per acct per year, currently $0.10 based on actual expense),
magnetic tapes, printing, ACH bank charges, NSCC charges, proxy
processing, microfilm/microfiche, etc.
B. Service fees and out of pocket expenses are billed monthly. Any fees or
out-of-pocket expenses not paid within 30 days of the date of the
original invoice will be charged a late payment fee of 1.5% per month
until payment is received.
C. In the event XX Xxxxxx were to move its Transfer Agency servicing
operation to another platform for any reason other than material service
deficiencies brought to DST's attention which were not remedied within an
acceptable timeframe, XX Xxxxxx would compensate DST for staff wind down
and related expenses using the aggregate of the salaries paid by DST
during the two months immediately preceding the termination to all DST
personnel utilized to provide Transfer Agent and Corporate Support
services to the fund.
Except for a termination pursuant to the provisions of Section 22.A., six
months notice is required by either party to terminate the
Transfer
Agency agreement.
D. The fees in this schedule, except those indicated by an "*", are
guaranteed through the Fund Merger. Items marked by an "*" are subject to
change with 60 days written notice.
35
TA2000 VOICE(TM) SYSTEM
FEE SCHEDULE
PER CALL SERVICE FEE
Utilization of DST's TA2000 Voice(TM) System is based on a service fee of $.21
PER CALL. Each call has a maximum duration of seven (7) minutes. This charge is
a flat rate regardless of the number or type of transactions that a shareholder
processes during the call. A given call could result in inquiries and/or
transactions being processed for various funds in the complex. Therefore, on a
monthly basis, DST will report the number of inquiries and/or transactions
processed by fund. A percentage of the total will be derived and reported for
each fund. As a result of this process, DST will allocate the charges among the
individual funds.
MULTIPLE CALL FLOWS
An additional fee of $525 per month will be charged for each additional call
flow that requires different flows, functions, vocabulary, processing, rules or
access method. An additional fee of $210 per month will be charged for each
additional call flow that is identical in flows, functions, vocabulary,
processing rules or access method.
MINIMUM MONTHLY CHARGE
DST's commitment to the reliability and continued enhancement of the TA2000
Voice System necessitates a minimum monthly charge for the service. The minimum
monthly charge will only be assessed when it is greater than the monthly service
fees. The minimum monthly charge will be implemented on a graduated basis based
on the number of cusips and shareholders in a fund complex and is the sum of the
cusip and account charges. The schedule for this charge is as follows:
YEARS CHARGE PER CHARGE PER
OF CUSIP AUTHORIZED SHAREHOLDER
SERVICE FOR SERVICE* ACCOUNT**
1 $ 52.50 $ .002
2 $ 78.75 $ .003
3 $ 105.00 $ .004
* CUSIPS ADDED TO THE SERVICE will be subject to the same minimums
being charged to the other cusips in the complex at the time the
cusips are added.
** THE PER ACCOUNT CHARGE is based on the total number of shareholder
accounts in authorized cusips at the end of each month.
36
OUT OF POCKET COSTS
Each fund complex will require a unique WATS number for their shareholders to
call. Each WATS number will require a specific number of trunks to service a
given volume of shareholder calls. All installation and monthly usage charges
associated with these will be billed through monthly out-of-pocket invoices.
37
NSCC FEES AND OUT-OF-POCKET EXPENSES
SETTLING BANK FEES
The fund may be charged fees by the Settling Bank at which the net
settlement account resides for monthly maintenance of this account. These
are negotiated directly between the Fund and the Settling Bank.
NSCC PARTICIPANT FEES
The NSCC charges $40 per month per management company for CPU
access/shared line costs.
A combined participant base fee of $200 per month is charged for the
following services:
FUND/SERV:
The NSCC charges an activity charge of $.25 per inputted transaction.
Transactions include purchases, redemptions and exchanges.
NETWORKING: The NSCC charges the following activity fee:
- $.02 per account for funds paying dividends on a monthly
basis
- $.01 per account for funds paying dividends other than
monthly
COMMISSION SETTLEMENT: The NSCC charges the following processing fee:
- $.30 per hundred records, per month, for one to 500,000
records; there is a $50 per month minimum processing charge
- $.20 per hundred records, per month, for 500,001 to
1,000,000 records
- $.10 per hundred records, per month, for 1,000,001 records
and above
Note: Participant fees are cumulative when Fund/SERV, Networking and/or
Commission Settlement are used in conjunction with each other.
38
EXHIBIT B
AUTHORIZED PERSONNEL
Pursuant to Section 8.B.(3) of the Agency Agreement between the Trust and DST
(the "Agreement"), the Trust authorizes the following Trust personnel to provide
instructions to DST, and receive inquiries from DST in connection with the
Agreement:
NAME TITLE SIGNATURE
---- ----- ---------
--------------------- -------------------- ------------------------
--------------------- -------------------- ------------------------
--------------------- -------------------- ------------------------
--------------------- -------------------- ------------------------
--------------------- -------------------- ------------------------
--------------------- -------------------- ------------------------
--------------------- -------------------- ------------------------
This Exhibit may be revised by the Trust by providing DST with a substitute
Exhibit B. Any such substitute Exhibit B 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.
By:
-----------------------------------
Title:
--------------------------------
Date:
---------------------------------
UNDISCOVERED MANANGERS FUNDS
By:
-----------------------------------
Title:
--------------------------------
Date:
---------------------------------
39
EXHIBIT C
TRANSFER AGENCY SERVICES AND SYSTEMS FEATURES
FUNCTIONS
A. Issuance of stock certificates
B. Recording of non-certificate shares
C. Purchase, redemptions, exchanges, transfers and legal transfer
D. Changes of address, etc.
E. Daily balancing of the Fund (that is maintaining the master, history and
certificate files in balance, advising the Trust of any differences and
resolving those caused by DST's error)
F. Dividend calculation and disbursement
G. Mailing of quarterly and annual reports, if requested
H. Filing of 1099/1042 information to shareholders and government
I. Provide N1R information - as available on TA2000
J. Systematic withdrawal and purchase plans
K. Pre-authorized checks
L. Purchase reminders
M. Reconcilement of dividend and disbursement accounts and advising trust of
any discrepancies
N. Provide research and correspondence to shareholder's inquiries
O. Daily communication of standard reports to the Fund
P. Provide listings, labels and other special reports
Q. Proxy issuance and tabulation
40
R. Annual Statements of shareholders on microfilm
S. Provide reports as required under Section 19K
T. Wire order processing
U. 12B-1 processing
41
EXHIBIT D
ABC - Auditor's Short Name
DEF - Auditor's Address
GHI - Auditor's Legal Name
JKL - Client Short Name
MNO - Client
CONFIDENTIALITY AGREEMENT FOR AUDITORS
This Agreement entered into this ____ day of ____________, 20__, by and
between DST Systems, Inc., 000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx, 00000
("DST") and GHI, DEF ("ABC").
WHEREAS, DST has developed a proprietary software system for mutual fund
shareholder recordkeeping and accounting ("DST System"); and
WHEREAS, MNO ("JKL") and DST have entered into an Agency Agreement dated
as of ________________________ (the "Agreement"), whereby JKL has obtained the
right to access DST's TA2000(TM) System and the DST Facilities, as defined in
the Agreement, in connection with the provisions of services to JKL's client
investment companies (the "Funds");
WHEREAS, pursuant to the Agreement JKL has the right to cause its
auditors, ABC, to perform on-site audits of records and accounts and operating
procedures directly pertaining to JKL's securityholder accounts in and the
performance of services for the Funds (the "Audit Subject Matter") subject to
the execution of this Confidentiality Agreement;
WHEREAS, DST will not permit any auditor access to its Facilities, its
TA2000 System and JKL's records in its possession and on its computers unless
and until such auditor duly executes this Agreement;
WHEREAS, each person set forth on the list attached hereto as Exhibit I
(the "Auditors") (a) is employed and designated by ABC, JKL's independent,
public auditing firm, to perform the aforementioned
42
audit of the Audit Subject Matter and (b) must obtain such access in order (i)
for ABC to fulfill its obligations to JKL and (ii) for each Auditor to perform
their obligations to ABC;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, the parties agree as follows:
(a) In accordance with the terms and conditions of the Agreement,
DST shall permit the Auditors reasonable access to the DST Facilities, as
defined in the Agreement, and the Audit Subject Matter and provide
reasonable assistance to them.
(b) ABC and each Auditor recognizes the proprietary right of DST
in and to the TA2000 System which ABC and each Auditor agrees that: (i)
all materials, information and data, in whatever form or media, including
without limitation documents, specifications, forms, systems designs,
structures, procedures, flow charts, data and screen formats, algorithms
and source and object code, pertaining to aspects of the DST System which
DST treats as confidential and protected, and requires its customers to
treat as confidential and protected ("DST Information"), provided to or
disclosed to ABC and its auditors shall remain the sole and exclusive
property of DST; (ii) all DST Information shall be held in strictest
confidence by ABC and each Auditor; (iii) ABC and each Auditor shall use
such DST Information solely for the purpose of auditing the Audit Subject
Matter in accordance with generally accepted auditing standards and,
except for such audit, neither ABC nor any Auditor shall utilize,
distribute, transfer or disclose in any way to any person or firm other
than JKL the DST Information provided or disclosed to it by DST, its
employees, representatives and agents; and (iv) only those employees,
representatives or agents of ABC having a "need to know" shall have
access to the DST Information.
43
(c) Upon completion of its review of the DST Information furnished
or disclosed to it (or upon earlier request by DST upon reasonable cause
being shown) ABC and each of its Auditors: (i) shall return to DST any
tangible materials furnished to any of them hereunder, and any copies
thereof; (ii) shall make available to DST any portion of any analyses,
compilations, studies or documents in whatever form or media made by it
or any of the Auditors containing or summarizing the details of any DST
Information; and (iii) shall safeguard or destroy, as DST may reasonably
require, such portions thereof as might compromise the confidentiality of
any DST Information; and (iv) shall provide DST with a written statement
to effect that the obligations undertaken in (i) - (iii) of this
Paragraph (c) have been fulfilled. Subsection (ii) hereof is not intended
to, and does not, apply to or prohibit the preparation and provision
solely to JKL and the Funds of an Audit Report conforming to generally
accepted auditing standards and applicable law with respect thereto.
(d) ABC shall be responsible for any breach of this Agreement by
any of the Auditors.
(e) This Agreement shall be inoperative as to such portions of the
DST Information which
(i) are or become generally available to the public other than as a
result of a disclosure by ABC or the Auditors; or (ii) become available
to ABC on a non-confidential basis from a third party (unrelated to ABC
or DST) which is entitled to disclose it; or (iii) was known to ABC on a
non-confidential basis prior to its disclosure to ABC by DST.
The parties acknowledge that in the event of any breach or threatened
breach of this Agreement remedies at law will be inadequate and the party
seeking to enforce this Agreement will be entitled to injunctive and other
equitable relief (without the posting of any bond).
44
IN WITNESS WHEREOF, the parties hereto executed this Agreement the day
and year first above written.
ABC DST SYSTEMS, INC.
By: By:
-------------------------------- --------------------------------
Dated: Dated:
----------------------------- -----------------------------
45
EXHIBIT I
The following individuals are all employees of ABC and are the only
persons whom ABC will use to perform the audit of the Audit Subject Matter and
to whom DST Information will be disclosed. The signature of each Auditor
hereupon evidences his/her acknowledgment and awareness of and agreement to be
bound by the terms of the attached Confidentiality Agreement.
NAME OF AUDITOR TITLE SIGNATURE
--------------- ----- ---------
46
APPENDIX I
UNDISCOVERED MANAGERS FUND CUSIP NUMBER
-------------------------- ------------
Undiscovered Managers Behavioral Growth Fund
Undiscovered Managers Behavioral Value Fund
Undiscovered Managers REIT Fund
Undiscovered Managers Small Cap Growth Fund
47
