Exhibit (h)(2)
AGENCY AGREEMENT
THIS AGREEMENT made the 29/th/ day of May, 2001, by and between UAM FUNDS,
INC. (the "Corporation"), a corporation existing under the laws of the State of
Maryland, and having its principal place of business at Xxx Xxxxxxx Xxxxxx Xxxx,
Xxxx, Xxxxxxxxxxxx 00000, and DST SYSTEMS, INC., a corporation existing under
the laws of the State of Delaware, having its principal place of business at 000
Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("DST"):
WITNESSETH:
WHEREAS, the Corporation desires to appoint DST as Transfer Agent and
Dividend Disbursing Agent for all present and future series or portfolios of the
Corporation, each presently existing series or portfolios (and each new series
or portfolio when created to be) set forth on Exhibit A, as amended from time to
time (as used herein the "Fund" or "Funds" includes, jointly and severally, the
Corporation and each investment company set forth on Exhibit A, as amended from
time to time with the mutual agreement of the Corporation and DST) 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.
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In connection with the appointment of DST as Transfer Agent and Dividend
Disbursing Agent for each Fund, there will be filed with DST the following
documents:
A. A certified copy of the resolutions of the Board of Directors of the
Corporation appointing DST as Transfer Agent and Dividend Disbursing
Agent for each Fund, approving the form of this Agreement, and
designating certain persons to give written instructions and requests
on behalf of the Corporation and each Fund;
B. A certified copy of the organizing documents of the Corporation and
each Fund and all amendments thereto;
C. A certified copy of the Bylaws of the Corporation (the Corporation
hereby representing and warranting that those of each Fund are
identical to those of the Corporation);
D. Copies of Registration Statements and amendments thereto, filed with
the Securities and Exchange Commission;
E. Specimens of the signatures of the officers of each Fund authorized to
sign stock certificates and individuals authorized to sign written
instructions and requests;
F. An opinion of counsel for each Fund with respect to:
(1) The Fund's organization and existence under the laws of its state
of organization,
(2) The status of all shares of stock of the Fund covered by the
appointment under the Securities Act of 1933, as amended (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.
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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 as amended (the "34 Act") and has
complied with the SEC's regulations for registered transfer agents.
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. DST hereby represents and warrants that, properly used, the TA2000
System is capable of maintaining these records required to be
maintained by a transfer agent under Section 17Ad(1)-(18) of the '34
Act for securities issued by open-end investment companies.
3. Certain Representations and Warranties of the Corporation on its own behalf
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and that of each Fund.
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The Corporation represents and warrants to DST that:
A. It is a corporation duly authorized and in good standing under the
laws of Maryland and each Fund is a business trust or corporation duly
organized and existing and in good standing under the laws of Maryland
or of Delaware, as applicable;
B. It and each Fund is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the
"40 Act");
C. A registration statement under the Securities 33 Act has been filed
and will be effective with respect to all shares of each Fund being
offered for sale;
D. All requisite steps have been and will continue to be taken to
register each 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; and
E. Each Fund is empowered under applicable laws and by its charter and
Bylaws to enter into and perform this Agreement.
4. Scope of Appointment.
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A. Subject to the conditions set forth in this Agreement, the Corporation
hereby appoints DST as Transfer Agent and Dividend Disbursing Agent
for each Fund.
B. DST hereby accepts such appointment and agrees that it will act as
each Fund's Transfer Agent and Dividend Disbursing Agent. DST agrees
that it will also act as agent in connection with each Fund's periodic
withdrawal payment accounts and other open accounts or similar plans
for shareholders, if any.
C. the Corporation 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 TA2000TM, DST's computerized data processing system for
securityholder accounting (the "TA2000 System"), will perform the
following services as transfer and dividend disbursing agent for each
Fund, and as agent of the Fund for shareholder accounts thereof, in a
timely manner: (i) issuing, transferring and exchanging shares in
book entry form; (ii) maintaining on the
TA2000 System shareholder accounts; (iii) with respect to brokers with
whom the Fund has agreed to participate in Networking and Fund/SERV,
as hereinafter defined, accepting and effectuating the registration
and maintenance of accounts through Networking and the purchase,
redemption, transfer and exchange of shares in such accounts through
Fund/SERV (Networking and Fund/SERV being programs operated by the
National Securities Clearing Corporation ("NSCC") on behalf of NSCC's
participants, including the Funds), in accordance with instructions
transmitted to and received by DST by transmission from NSCC on behalf
of broker-dealers and banks which have been established by, or in
accordance with the instructions of, an Authorized Person, as
hereinafter defined, on the Dealer File maintained by DST; (iv)
issuing instructions to the Funds' banks for the settlement of
transactions between the Funds and NSCC (acting on behalf of its
broker-dealer and bank participants); (v) providing account and
transaction information from each affected Fund's records on TA2000 in
accordance with NSCC's Networking and Fund/SERV rules for those
broker-dealers; (vi) maintaining shareholder accounts on TA2000
through Networking; (vii) providing transaction journals; (viii)
periodically preparing shareholder meeting lists for use in connection
with shareholder meetings and certifying a copy of such list; (ix)
mailing shareholder reports and prospectuses; (x) withholding, as
required by federal law, taxes on shareholder accounts, preparing,
filing and mailing U.S. Treasury Department Forms 1099, 1042, and
1042S and performing and paying backup withholding as required for all
shareholders; (xi) disbursing income dividends and capital gains
distributions to shareholders and recording reinvestment of dividends
and distributions in shares of the Fund; (xii) preparing and mailing
confirmation forms to shareholders and dealers, as instructed, for all
purchases and liquidations of shares of the Fund and other confirmable
transactions in shareholders' accounts; (xiii) providing or making
available on-line daily and monthly reports as provided by the TA2000
System and as requested by the Fund or its Authorized Person, as
hereinafter defined; (xiv) maintaining those records necessary to
carry out DST's duties hereunder,
including all information reasonably required by the 34 Act and the 40
Act or required by the Corporation to account for all transactions in
the Funds' shares; (xv) calculating the appropriate sales charge with
respect to each purchase of the Fund shares as instructed by an
Authorized Person, as hereinafter defined, determining the portion of
each sales charge payable to the dealer participating in a sale in
accordance with schedules and instructions delivered to DST by the
Fund's principal underwriter or distributor (hereinafter "principal
underwriter") or an Authorized Person from time to time, disbursing
dealer commissions collected to such dealers, determining the portion
of each sales charge payable to such principal underwriter and
disbursing such commissions to the principal underwriter; (xvi)
receiving correspondence pertaining to any former, existing or new
shareholder account, processing such correspondence for proper
recordkeeping, and responding promptly to shareholder correspondence;
mailing to dealers confirmations of wire order trades; mailing copies
of shareholder statements to shareholders and registered
representatives of dealers in accordance with the instructions of an
Authorized Person; (xvii) processing, generally on the date of
receipt, purchases or redemptions or instructions to settle any mail
or wire order purchases or redemptions received in proper order as set
forth in the prospectus and the Procedures, as hereinafter defined,
rejecting promptly any requests not received in proper order (as
defined by an Authorized Person or the Procedures, as hereinafter
defined), and causing exchanges of shares to be executed in accordance
with the instructions of Authorized Persons, the Procedures, the
applicable prospectus and the general exchange privilege applicable;
(xix) providing to the person designated by an Authorized Person the
daily Blue Sky reports generated by the Blue Sky module of TA2000 with
respect to purchases of shares of the Funds on TA2000; and (xx)
providing to the Corporation escheatment reports as requested by an
Authorized Person with respect to the status of accounts and
outstanding checks on TA2000.
E. DST shall not be responsible to provide the services set forth in
Section 4.D. in connection with transactions (i) on behalf of
retirement plans and participants in
retirement plans and transactions ordered by brokers as part of a "no
transaction fee" program ("NTF"), the processing of which transactions
require DST to use methods and procedures other than those usually
employed by DST to perform shareholder servicing agent services, (ii)
involving the provision of information to DST after the commencement
of the nightly processing cycle of the TA2000 System or (iii) which
require more manual intervention by DST, either in the entry of data
or in the modification or amendment of reports generated by the TA2000
System than is usually required by non-retirement plan, non-NTF and
pre-nightly transactions (including, without limitation, price changes
and corrective processing (the "Exception Services").
F. DST shall use reasonable efforts to provide, reasonably promptly under
the circumstances, the same services with respect to any new,
additional functions or features or any changes or improvements to
existing functions or features as provided for in the Fund's
instructions, prospectus or application as amended from time to time,
for the Fund provided (i) DST is advised in advance by the Fund of any
changes therein and (ii) the TA2000 System and the mode of operations
utilized by DST as then constituted supports such additional functions
and features. If any addition to, improvement of or change in the
features and functions currently provided by the TA2000 System or the
operations as requested by the Corporation requires an enhancement or
modification to the TA2000 System or to operations as presently
conducted by DST, DST shall not be liable therefore until such
modification or enhancement is installed on the TA2000 System or new
mode of operation is instituted. If any new, additional function or
feature or change or improvement to existing functions or features or
new service or mode of operation measurably increases DST's cost of
performing the services required hereunder at the current level of
service, DST shall advise the Corporation of the amount of such
increase and if the Corporation elects to utilize such function,
feature or service, DST shall be entitled to increase its fees by the
amount of the increase in costs. In no event shall DST be responsible
for or
liable to provide any additional function, feature, improvement or
change in method of operation until it has consented thereto in
writing.
G. the Corporation shall add new series or portfolios to the TA2000
System upon at least thirty (30) days' prior written notice to DST
provided that the requirements of the new series are generally
consistent with services then being provided by DST under this
Agreement. Rates or charges for additional series shall be as set
forth in Exhibit B 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 as mutually
agreed to.
5. Limit of Authority.
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Unless otherwise expressly limited by the resolution of appointment or by
subsequent action by the Corporation or a 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 Corporation will file with DST: 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, and in all cases an opinion of counsel for the Fund stating: (1)
The status of the additional shares of stock of the Fund under the
Securities 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.
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A. In consideration for its services hereunder as Transfer Agent and
Dividend Disbursing Agent, the Corporation will pay to DST from time
to time a reasonable compensation for all services rendered as Agent.
("Compensation and Expenses") incurred in connection with the agency.
Such compensation is set forth in a separate schedule to be agreed to
by the Corporation and DST, a current copy of which is attached hereto
as Exhibit B. If the Corporation has not
paid the compensation and expenses due to DST under Sections 6.A and
6.B of this Agreement within thirty (30) days of receipt of the
invoice therefor, 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 Corporation 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 in
connection with legal questions regarding instructions, requests or
documentation submitted by shareholders, outside printing and mailing
firms (including Output Technology Solutions, Inc. and ("OTS")) and
OTS's subsidiaries, magnetic tapes, reels or cartridges (if sent to
the Corporation or to a third party at the Corporation'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 Corporation's
request at the Corporation's or a third party's premises,
telecommunications equipment, telephone/telecommunication lines
between the Fund and its agents, on one hand, and DST on the other,
proxy soliciting, processing and/or tabulating costs, second-site
backup computer facility, transmission of statement data for remote
printing or processing by a third party other than OTS, and National
Securities Clearing Corporation ("NSCC") transaction fees to the
extent any of the foregoing are paid by DST. The Corporation 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 Corporation will be promptly reimbursed by the
Corporation.
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
Corporation (the "Due
Date"). The Fund is aware that its failure to pay all amounts in a
timely fashion so that they will be received by DST on or before the
Due Date will give rise to costs to DST not contemplated by this
Agreement, including but not limited to carrying, processing and
accounting charges. Accordingly, subject to Section 6.D. hereof, in
the event that any amounts due hereunder are not received by DST by
the Due Date, the Fund shall pay a late charge equal to the lesser of
the maximum amount permitted by applicable law or the product of one
and one-half per cent (1.5%) per month times the amount overdue, times
the number of months from the Due Date up to and including the day on
which payment is received by DST. The parties hereby agree that such
late charge represents a fair and reasonable computation of the costs
incurred by reason of late payment or payment of amounts not properly
due. Acceptance of such late charge shall in no event constitute a
waiver of the Fund's or DST's default or prevent the non-defaulting
party from exercising any other rights and remedies available to it.
D. In the event that any charges are disputed, the Corporation shall, on
or before the Due Date, pay all undisputed amounts due hereunder and
notify DST in writing of any disputed charges for billable expenses
which it is disputing in good faith. Payment for such disputed charges
shall be due on or before the close of the fifth (5th) business day
after the day on which DST provides to the Corporation 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 B shall increase or may be
increased as follows:
(1) On the first day of each new term, in accordance with the "Fee
Increases" provision in Exhibit B;
(2) DST may increase the fees and charges set forth on Exhibit B upon
at least ninety (90) days prior written notice, if changes in
existing laws, rules or
regulations: (i) require substantial system modifications or (ii)
materially increase cost of performance hereunder;
(3) DST may charge for additional features of TA2000 used by the
Corporation which features are not consistent with the
Corporation's current processing requirements; and
(4) In the event DST, at the Corporation's request or direction,
agrees to perform Exception Services, DST shall be entitled to
increase the fees and charges for such Exception Services from
those set forth on Exhibit B to the extent such Exception
Services increase DST's cost of performance (including any
increase in DST's risk of loss from errors). DST shall provide
the Corporation with reasonable evidence of such increase.
If DST notifies the Corporation 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
Corporation'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 and the Corporation are not able to agree upon such new fees, then the
Corporation shall have thirty (30) days upon which to accept DST's last
offer or to announce the Corporation's intention to terminate this
Agreement. DST thereupon will have fifteen (15) days to accept the
Corporation's position on the proposed fee increase or to accept the
termination of this Agreement. If such notice is accepted, the Corporation
shall deconvert from TA2000 within one hundred twenty (120) days of DST's
notice of acceptance of termination.
If DST notifies the Corporation of an increase in fees or charges under
Section 4.F. or 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 function, Fund feature or Exception Service. In the event
that DST and the Fund are unable to agree upon a new fee, then DST shall
not be obligated to provide such new service and shall not be entitled to
such fee increase.
7. Operation of DST System.
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In connection with the performance of its services under this Agreement,
DST is responsible for such items as:
A. That entries in DST's records, and in the Fund's records on the TA2000
System created by DST, reflect the orders, instructions, and other
information received by DST from the Fund, the Fund's distributor,
manager or principal underwriter, the Fund's investment adviser, the
Fund's sponsor, the Fund's custodian, the Fund's shareholder service
agent (UAM Shareholder Services Corporation, Inc. ("UAM SSC")), or the
Corporation (each an "Authorized Person"), broker-dealers or
shareholders;
B. That shareholder lists, shareholder account verifications,
confirmations and other shareholder account information to be produced
from its records or data be available and accurately reflect the data
in the Fund's records on the TA2000 System;
C. The accurate and timely issuance of dividend and distribution checks
in accordance with instructions received from the Corporation and the
data in the Fund's records on the TA2000 System;
D. That redemption transactions and payments be effected timely, under
normal circumstances on the day of receipt, and accurately in
accordance with redemption instructions received by DST from
Authorized Persons, broker-dealers or shareholders and the data in the
Fund's records on the TA2000 System;
E. The deposit daily in the Fund's appropriate special bank account of
all checks and payments received by DST from NSCC, broker-dealers or
shareholders for investment in shares;
F. Notwithstanding anything herein to the contrary, with respect to "as
of" adjustments, DST will not assume one hundred percent (100%)
responsibility for losses resulting from "as ofs" due to non-negligent
clerical errors or misinterpretations of shareholder instructions, but
DST will discuss with the Corporation DST's accepting liability for an
"as of" on a case-by-case basis and shall accept financial
responsibility for a particular situation involving negligent clerical
errors or negligent misinterpretations of shareholder instructions,
but not
non-negligent errors or misinterpretations, resulting in a material
(as defined by the Investment Company Institute) financial loss to the
Fund;
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 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 UAM SSC, or the Corporation's, or DST's
counsel (collectively the "Procedures") 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.
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A. DST shall at all times use reasonable care, due diligence and act in
good faith in performing its duties under this Agreement. DST shall
provide its services as Transfer Agent in accordance with Section 17A
of the 34 Act, and the rules and regulations thereunder. In the
absence of bad faith, willful misconduct, knowing (DST is presumed
under this Agreement to know when DST is violating provisions of the
34 Act and the 40 Act and any rules and regulations thereunder)
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 or any deviation therefrom
approved by an Authorized Person or, or UAM SSC, or the Corporation,
UAM SSC or DST counsel, or the waiver by the Corporation or an
Authorized Person of a requirement for any action by DST, which
requirement DST would otherwise have been entitled to demand.
B. DST shall not be responsible for, and the Corporation shall indemnify
and hold DST harmless from and against, any and all losses, damages,
costs, charges, reasonable counsel fees, payments, expenses and
liability which may be asserted against DST or for which DST may be
held to be liable, arising out of or attributable to:
(1) All actions of DST required to be taken by DST pursuant to this
Agreement, provided that DST has acted in good faith and with due
diligence and reasonable care;
(2) The Corporation's or any Fund's refusal or failure to comply with
the terms of this Agreement, the Corporation's negligence or
willful misconduct, or the breach of any representation or
warranty of the Corporation hereunder;
(3) The good faith reliance on, or the carrying out of, any written
or oral instructions or requests of persons designated by the
Corporation or the Fund in writing (see Exhibit C) 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 Corporation or the Fund, its investment advisor, its sponsor
or its principal underwriter;
(4) Defaults by dealers or shareowners with respect to payment for
share orders previously entered;
(5) The offer or sale of the Fund's shares in violation of any
requirement under federal securities laws or regulations or the
securities laws or regulations of any state or in violation of
any stop order or other determination or ruling by any federal
agency or state with respect to the offer or sale of such shares
in such state (unless such violation results from DST's failure
to comply with written instructions of the Corporation or the
Fund or of any officer of the Corporation or the Fund that no
offers or sales be input into the Fund's securityholder records
in or to residents of such state);
(6) The Corporation's or the Fund's errors and mistakes in the use of
the TA2000 System, the data center, computer and related
equipment used to access the TA2000 System (the "DST
Facilities"), and control procedures relating thereto in the
verification of output and in the remote input of data;
(7) Errors, inaccuracies, and omissions in, or errors, inaccuracies
or omissions of DST arising out of or resulting from such errors,
inaccuracies and omissions in, the Fund's records, shareholder
and other records, delivered to DST hereunder by the Corporation
or the Fund's or the Corporation's prior agent(s);
(8) Actions or omissions to act by the Corporation or the Fund or
agents designated by the Corporation or the Fund with respect to
duties assumed thereby as provided for in Section 21 hereof; and
(9) DST's performance of Exception Services, if DST agrees to perform
Exception Services, except where DST acted or omitted to act in
bad faith, with reckless disregard of its obligations under this
Agreement 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 Corporation harmless from and against any and all losses, damages,
costs, charges, reasonable counsel fees, payments, expenses and
liability arising out of DST's failure to comply with the terms of
this Agreement or arising out of or attributable to DST's negligence
or willful misconduct or breach of any representation or warranty of
DST hereunder.
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. DST will indemnify and hold the Corporation harmless against, and DST
will at its own expense defend any action brought against the
Corporation to the extent such action is based upon, a claim that the
TA2000 system as used within the scope of this Agreement infringes any
U.S. patent, copyright or trade secret; provided, that DST is
immediately notified in writing of any such claim; and provided,
further, that DST shall have the exclusive right to control such
defense and settle such claim. Notwithstanding the foregoing, in no
event may DST settle any such claim, lawsuit or proceeding in a manner
which binds the Corporation to liability without the Corporation's
consent and in no event shall the Corporation settle any such claim,
lawsuit or proceeding without DST's prior written approval. In the
event of any such claim, litigation or threat thereof, DST may, in its
sole and absolute discretion either;
(i) Procure for the Corporation a right to continue to use the
TA2000 System at no additional charge to the Corporation; or
(ii) Replace or modify the TA2000 System so as to be non-
infringing without eliminating or diminishing the services
provided hereunder at no additional charge to the
Corporation; or
(iii) Only if (i) or (ii) cannot be accomplished on commercially
reasonable terms, terminate this Agreement without any
further liability to the Corporation.
F. 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 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.
9. Certain Covenants of DST and the Fund.
-------------------------------------
A. All requisite steps will be taken by the Fund from time to time when
and as necessary to register the Fund's shares for sale in all states
in which the Fund's shares shall at the time be offered for sale and
require registration. If at any time the Fund will receive notice of
any stop order or other proceeding in any such state affecting such
registration or the sale of the Fund's shares, or of any stop order or
other proceeding under the federal securities laws affecting the sale
of the Fund's shares, the Fund will give prompt notice thereof to DST.
B. DST hereby agrees to perform such transfer agency functions as are set
forth in Section 4.D. and 4.E. above and establish and maintain
facilities and procedures reasonably acceptable to the Corporation 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 40 Act and the 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 Corporation and will be preserved and will be
surrendered promptly to the Corporation on request.
D. DST agrees to furnish the Corporation annual reports of its financial
condition, consisting of a balance sheet, earnings statement and any
other financial information reasonably requested by the Corporation.
The annual financial statements will be certified by DST's certified
public accountants.
E. DST represents and agrees that it will use its reasonable efforts to
keep current on the trends of the investment company industry relating
to shareholder services and will use its reasonable efforts to
continue to modernize and improve.
F. DST will permit the Corporation and, upon execution of DST's standard
Confidentiality and Limited Use Agreement, a copy of which is attached
hereto as Exhibit D, its authorized representatives to make periodic
inspections of its operations as such would involve the Corporation at
reasonable times during business hours.
G. DST agrees to use its reasonable efforts to provide in Kansas City or
at the Corporation's facility at the Corporation's expense and at
DST's then current rates and charges therefor training for the
Corporation's personnel in connection with use and operation of the
TA2000 System as reasonably requested by the Corporation. All travel
and reimbursable expenses incurred by the Corporation's personnel in
connection with and during training at DST's Facility shall be borne
by the Corporation. Reasonable travel, per diem and reimbursable
expenses incurred by DST personnel in connection with and during
training at the Corporation's facility shall be borne by the
Corporation.
H. Notwithstanding anything in this Agreement to the contrary, DST's only
warranty or covenant with respect to year 2000 compliance is that the
TA2000 System will be year 2000 compliant during the term set forth in
Section 21 of this Agreement. As used in this Agreement, "year 2000
compliant" shall mean that the TA2000 System will perform in
accordance with the terms of this Agreement regardless of
the century with respect to which date data is encountered by the
TA2000 System; provided, that (i) all date data received by DST for
use by the TA2000 System is accurate and in formats specified by DST
from time to time, (ii) all date data generated by the TA2000 System
is accepted by the recipient in formats provided by DST from time to
time, and (iii) DST shall not be obligated to provide date data for
interface functions such as screens, reports or data transmission
files in any format other than that specified by DST from time to
time. Notwithstanding the foregoing, DST makes no representation or
warranty as to the ability of any hardware, firmware, software,
products or services provided to DST by any other party to manipulate
or to process date data, or as to the functionality of any DST
software (including without limitation the TA2000 System), in
circumstances where data received from any third party system
(including without limitation that of the Fund and its Authorized
Persons, agents or customers), is invalid, incorrect or otherwise
corrupt.
10. Recapitalization or Readjustment.
--------------------------------
In case of any recapitalization, readjustment or other change in the
capital structure of the Fund, DST will accomplish such recapitalization or
readjustment by book entry upon receiving:
A. Written instructions from an officer of the Corporation or the
affected Fund; and
B. Opinion of counsel for the Fund stating:
(1) The status of the shares of stock of the Fund in the new form
under the 33 Act as amended and any other applicable federal or
state statute; and
(2) That all corporate and regulatory steps required for the issuance
of the new shares have been completed and the issued shares in
the new form are, and all unissued shares will be, when issued,
validly issued, fully paid and non-assessable.
11. Stock Certificates.
------------------
The Fund has only five (5) or less certificates outstanding and does not
intend to issue more. The Corporation shall be solely responsible for all
activities relating to such
certificates, including processing all transactions and maintaining all
records pertaining thereto.
12. Death, Resignation or Removal of Signing Officer.
------------------------------------------------
The Corporation will file promptly with DST written notice of any change in
the officers authorized to sign written instructions or requests, together
with two signature cards bearing the specimen signature of each newly
authorized officer.
13. Future Amendments of Charter and Bylaws.
---------------------------------------
The Corporation will promptly file with DST copies of all material
amendments to the Funds' charter document 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 Corporation to
give instructions to DST, and may with the approval of an the Corporation
officer consult with legal counsel for the Fund, or DST's own legal counsel
at the expense of the Corporation, with respect to any matter arising in
connection with the agency (the Corporation will not bear the expense of
DST outside counsel for matters relating to DST's obligations under federal
law) and it will not be liable for any action taken or omitted by it in
good faith in reliance upon such instructions or upon the opinion of such
counsel. DST will be protected in acting upon any paper or document
reasonably believed by it to be genuine and to have been signed by the
proper person or 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 Corporation. Stock certificates will be forwarded to the Corporation
for processing.
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 of 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 Corporation is paying each
Funds' pro rata portion of the charge therefor, DST would, in event of
a disaster rendering the DST Facilities inoperable, use reasonable
efforts to convert the TA2000 System containing the designated the
Fund data to the computers at the Recovery Facility in accordance with
the then current Business Contingency Plan.
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 DST's operations to other operating areas
or to the Crisis Management Center is also covered in DST's Business
Contingency Plan.
16. 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 40 Act,
if any.
17. Disposition of Books, Records and Canceled Certificates.
-------------------------------------------------------
DST may send periodically to the Corporation, 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, upon the understanding that such books,
documents, and records will be maintained by the Corporation, the Fund or
the recipient designated by the Corporation or the Fund under and in
accordance with the requirements of Section 17Ad-7 adopted under the 34
Act, including by way of example and not limitation Section 17Ad-7(g)
thereof. Such materials will not be destroyed without the consent of DST
(which consent will not be unreasonably withheld), but will be safely
stored for possible future reference.
18. Provisions Relating to DST as Transfer Agent.
--------------------------------------------
A. DST will register the ownership of additional shares as it receives
appropriate instructions or payment therefore, it being the
responsibility of the Fund or its designated agents to assure that
sufficient numbers of shares have been registered as required by all
applicable laws, rules or regulations and that all applicable taxes
have been paid.
B. Book entry (unissued) shares of stock will be transferred and
ownership thereof will be re-registered or book entry (unissued)
shares of stock accepted for redemption and funds remitted therefor,
or book entry transfer be effected, upon receipt by DST of
instructions deemed by DST properly endorsed and accompanied by such
documents as DST reasonably 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 any necessary document
is valid and genuine, and for that purpose it may require a guaranty
of signature in accordance with DST's Signature Guarantee Procedures.
DST also reserves the right to refuse to transfer or redeem shares
until it is satisfied that the requested transfer or redemption is
legally authorized, and it will incur no liability for the refusal in
good faith to make transfers or redemptions which, in its judgment,
are improper or unauthorized. DST may, in effecting transfers or
redemptions, rely upon the Procedures, Simplification Acts, Uniform
-------
Commercial Code or other statutes which protect it, the Corporation
---------------
and the Fund in not requiring complete fiduciary or other
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.
C. DST will act as Conversion Agent for unissued shares upon receiving
written instructions from any officer of the Fund and such other
documents as DST reasonably deems necessary.
D. DST will supply shareholder's lists to the Corporation for shareholder
meetings upon receiving a request from an officer of the Corporation.
E. Upon receipt of written instructions of an officer of the Corporation,
DST will, at the expense of the Corporation, address and mail notices
to shareholders.
F. In case of any request or demand for the inspection of the stock books
of the Fund or any other Corporation books in the possession of DST,
DST will endeavor to notify the Corporation 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.
19. Provisions Relating to Dividend Disbursing Agency.
-------------------------------------------------
A. DST will, at the expense of the Corporation, provide a special form of
check containing the imprint of any device or other matter desired by
the Corporation. Said checks must, however, be of a form and size
convenient for use by DST.
B. If the Corporation 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 Corporation.
C. If the Corporation desires distributions be 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 Corporation; 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 Corporation.
D. DST shall establish and maintain one or more deposit accounts as Agent
for the Funds, 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.
20. Assumption of Duties By the Corporation or Agents Designated By the
-------------------------------------------------------------------
Corporation.
-----------
A. The Corporation, the Fund or their 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 Sections 4.D. and 4.E. of this Agreement,
including but not limited to answering and responding to telephone
inquiries from shareholders and brokers, accepting shareholder and
broker instructions (either or both oral and written) and transmitting
orders based on such instructions to DST, preparing and mailing
confirmations, obtaining certified TIN numbers, classifying the status
of shareholders and shareholder accounts under applicable tax law,
establishing shareholder accounts on the TA2000 System and assigning
social codes and Taxpayer Identification Number codes thereof, and
disbursing monies of the Fund, said assumption to be embodied in
writing to be signed by both parties.
B. To the extent the Corporation or the Fund or their 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 Corporation's designee UAM Shareholder Service Center,
Inc. ("UAMSSC") shall be responsible for the activities set forth in
Exhibit D, attached hereto. DST will use its reasonable efforts to
provide reasonable
assistance to UAM SSC in performing the services described therein but
DST shall have no responsibility or liability for any errors,
inaccuracies, omissions or inadequacies of UAM SSC or for verifying
any of UAM SSC actions or omissions.
21. Termination of Agreement.
------------------------
A. This Agreement shall be in effect until October 31, 2001 (the "Initial
Term"), but may be terminated by either party upon delivery of six (6)
month's written notice to the other party, provided, however, that the
effective date of any termination shall not occur during the period
from December 15 through March 30 of any year to avoid adversely
impacting year end and any such termination by the Corporation will be
subject to the fees and charges set forth in Section 22.C of this
Agreement. Upon the expiration of the Initial Term, or any term
thereafter, this Agreement shall automatically renew for successive
one-year terms, unless terminated by the either party on six (6)
month's prior written notice to the other party.
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. In the event of termination, the Corporation will promptly pay DST all
amounts due to DST hereunder prior to or contemporaneously with the
deconversion of the Fund's records from the TA2000 System. In
addition, if this Agreement is terminated by the Corporation for any
reason other than those set forth in Section 22.B. hereof during the
Initial Term or, after such Initial Term, at any time otherwise than
as of the last day of the then current term, then the Corporation
shall pay to DST a termination fee equal to the aggregate of all the
discounts received or due to the Corporation during the then current
term. Additionally, if such termination occurs before the expiration
of the Initial Term, DST shall be entitled to recover, and the
Corporation shall pay to DST, an amount equal to the aggregate of all
costs incurred by DST in connection with the establishment of the
Funds on, and the conversion of the Funds to, the TA2000 System less
the amounts previously reimbursed to DST for the first 1100 man hours.
All discounts to fees otherwise payable by the Corporation to DST
under this Agreement shall cease and be of no further force and effect
as of the first day of any month during which DST receives a notice of
termination of this Agreement from the Corporation.
D. In the event of termination, DST will use its reasonable efforts to
transfer the records of the Fund to the designated successor transfer
agent, to provide reasonable assistance to the Corporation 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.
22. Confidentiality.
---------------
A. DST agrees that, except as provided in the last sentence of Section
18.F. hereof, or as otherwise required by law or by subpoena, DST will
keep confidential all records of and information in its possession
relating to the Corporation and 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 Corporation or the
Fund.
B. The Corporation agrees that it and each Fund will keep confidential
all financial statements and other financial records received from
DST, the terms and provisions of this Agreement, all accountant's
reports relating to DST, and all manuals, systems and other technical
information and data, not publicly disclosed, relating to DST's
operations and programs furnished to it by DST pursuant to this
Agreement and will not disclose the same to any person except at the
request or with the consent of DST.
C. (1) The Corporation acknowledges that DST has proprietary rights in
and to the TA2000 System used to perform services hereunder
including, but not limited to the maintenance of shareholder
accounts and records, processing of related information and
generation of output, including, without limitation any changes
or modifications of the TA2000 System and any other DST programs,
data bases, supporting documentation, or procedures (collectively
"DST Confidential Information") which the Corporation's access to
the TA2000 System or computer hardware or software may permit the
Corporation 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 Corporation
agrees that it and each Fund will maintain the confidentiality of
the DST Confidential Information.
(2) The Corporation 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
Corporation will advise all of its employees and agents and all
of the employees and agents of each Fund 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 Corporation 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 Corporation
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.
23. Changes and Modifications.
-------------------------
A. During the term of this Agreement DST will use on behalf of the
Corporation without additional cost all modifications, enhancements,
or changes which DST may make to the TA2000 System in the normal
course of its business and which are applicable to functions and
features offered by the Fund, unless substantially all DST clients are
charged separately for such modifications, enhancements or changes,
including, without limitation, substantial system revisions or
modifications necessitated by changes in existing laws, rules or
regulations in which case the charges applicable to such
modifications, enhancements or changes shall be determined according
to Section 6.E. of this Agreement.
B. DST shall have the right, at any time and from time to time, to alter
and to modify any systems, programs, procedures or facilities used or
employed in performing its duties and obligations hereunder; provided
that the Corporation 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 Corporation in
using or employing the TA2000 System or DST Facilities hereunder or
the reports to be generated by such system and facilities hereunder,
unless the Corporation is given thirty (30) days prior notice to allow
the Corporation to change its procedures and DST provides the
Corporation with revised operating procedures and controls.
C. All enhancements, improvements, changes, modifications or new features
added to the TA2000 System however developed or paid for shall be, and
shall remain, the confidential and exclusive property of, and
proprietary to, DST.
24. 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, telecommunication companies, and any agents of the Fund
(including without limitation the Fund's banks - custodian, deposit and
paying banks), provided, if DST selected such company, DST shall have
exercised due care in selecting the same.
25. Limitation on Liability.
------------------------
If the Corporation 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
Corporation shall be deemed to relate solely to the particular Fund to
which such transaction relates. Under no circumstances shall the rights,
obligations or remedies with respect to a particular Fund constitute a
right, obligation or remedy applicable to any other Fund. The use of this
single document to memorialize the separate agreement of each Fund is
understood to be for clerical convenience only and shall not constitute any
basis for joining the Funds for any reason.
26. 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 Corporation 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
Corporation 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 Corporation. This Agreement is between DST
and the Corporation and neither this Agreement nor the performance of
services under it shall create any rights in any third parties. There
are no third party beneficiaries hereto.
J. Except as specifically provided herein, this Agreement does not in any
way affect any other agreements entered into among the parties hereto
and any actions taken or omitted by any party hereunder shall not
affect any rights or obligations of any other party hereunder.
K. The failure of either party to insist upon the performance of any
terms or conditions of this Agreement or to enforce any rights
resulting from any breach of any of the terms or conditions of this
Agreement, including the payment of damages, shall not be construed as
a continuing or permanent waiver of any such terms, conditions, rights
or privileges, but the same shall continue and remain in full force
and effect as if no such forbearance or waiver had occurred.
L. This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement, draft or agreement or
proposal with respect to the subject matter hereof, whether oral or
written, and this Agreement may not be modified except by written
instrument executed by both parties.
M. All notices to be given hereunder shall be deemed properly given if
delivered in person or if sent by U.S. mail, first class, postage
prepaid, or if sent by facsimile and thereafter confirmed by mail as
follows:
If to DST:
DST Systems, Inc.
000 Xxxx 00/xx/ Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Senior Vice President-Full Service
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy of non-operational notices to:
DST Systems, Inc.
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Legal Department
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to the Corporation:
UAM Funds, Inc.
c/o SEI Investments
Xxx Xxxxxxx Xxxxxx Xxxx
Xxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxxx
Telephone: (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.
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. UAM FUNDS, INC.
By: /s/ Xxxxxxxx Xxxxx By: /s/ Xxxxx X. Xxx III
------------------ ----------------------
Title:____________________ Title: President
-----------
EXHIBIT A, p. 1
FUNDS
Fund Name
Acadian Emerging Markets Portfolio
C&B Balanced Portfolio
C&B Equity Portfolio
C&B Equity Portfolio for Taxable Investors
C&B Mid Cap Equity Portfolio
DSI Limited Maturity Bond Portfolio
DSI Money Market Portfolio
FMA Small Company Portfolio
ICM Small Company Portfolio
Independence Small Cap Fund
XxXxx Domestic Equity Portfolio
XxXxx International Equity Portfolio
XxXxx Small Cap Equity Portfolio
XxXxx U S Government Portfolio
NWQ Special Equity Portfolio
Rice, Hall, Xxxxx Xxxxx Cap Portfolio
Rice, Hall, Xxxxx Xxxxx/Mid Cap Portfolio
Sirach Bond Portfolio
Sirach Equity Portfolio
Sirach Growth Portfolio
Sirach Strategic Balanced Portfolio
Sirach Special Equity Portfolio
TS&W Balanced Portfolio
TS&W Equity Portfolio
TS&W Fixed Income Portfolio
TS&W International Equity Portfolio
EXHIBIT B
Page 1 of 6
DST SYSTEMS, INC.
UAM FUNDS, INC.
TRANSFER AGENCY FEE SCHEDULE
TERM: 11/1/1998 - 10/31/2001
(CPI 4.1% - Effective 11/1/00)
A. Base Fee:
Cusip Base Fee - $13,939 per cusip per year
Base Fee Discount:
Months 1 - 6 20%
Months 7-12 15%
Months 13-18 10%
Months 19-24 5%
Months 25-36 0%
B. Account Maintenance Fees:
Open Accounts - $9.65 per open account per year
Closed Accounts - $1.87 per closed account per year
C. Transaction Processing Fees:
New Account Set-Up:
Manual - $3.76 per new account set-up
Automated - $1.61 per new account set-up
Manual Transactions - $2.69 per transaction
Omnibus Transactions - $2.69 per transaction
12b-1 Processing - $0.17 per open and closed account per cycle
D. Optional Services:
*Vision - $0.05 per view + $5.00 per ID per month
*FANMAIL - $6,000 per year + $0.18 per record
*NSCC - See Exhibit A
*FAN - See Exhibit B
Contingent Deferred Sales Charge (CDSC) - $2.04 per open account
Trade Date Accumulated Shares System (TASS) - $1.07 per account per year
Intelligent Workstation (IWS)/Literature - $0.37 per item
Average Cost - $5,387 per year of history converted + $0.27 per account per
year
*Power Select (Remote Licenses Fee) - $2,413 per month
EXHIBIT B
Page 2 of 6
E. Voice Response System:
Monthly Call Volume Per Call Fee
------------------- ------------
1 - 40,000 $0.22
40,001 - 120,000 0.17
120,001 - 200,000 0.12
200,001 - 300,000 0.08
Over 300,000 0.07
Subject to a monthly minimum of $107 per CUSIP plus $0.004 per shareholder
account.
F. Other:
*Computer/Technical Personnel (2001 Standard Rates):
*Business Analyst/Tester:
Dedicated $106,080 per year
On Request $93.60 per hour
*COBOL Programmer:
Dedicated $176,800 per year
On Request $140.40 per hour
*Workstation Programmer:
Dedicated $204,880 per year
On Request $166.40 per hour
*Business Analyst:
Senior Staff Support $75 per hour
Staff Support $55 per hour
Clerical Support $45 per hour
Escheatment Costs - $130 per cusip per filing plus $1.56 per item plus out-
of-pocket costs
Acquisition/Conversion Costs - Out of pocket expenses including but not
limited to travel and accommodations, programming, training, equipment
installation, etc.
EXHIBIT B
Page 3 of 6
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 are set forth
hereinafter. Reimbursable expenses are billed separately from service fees
on a monthly basis.
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 of 1.5% per month until
payment is received.
C. The above fees, except for those indicated by an "*", are guaranteed for a
three year term, subject to an annual increase in an amount not less than
the annual percentage change in the Consumer Price Index (CPI) for all urban
consumers 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 for the twelve (12) calendar months
immediately following the month during which such anniversary occurred. In
section F, new Computer/Technical Personnel fees go into effect each January
1. 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.
NSCC OUT-OF-POCKET EXPENSES EXHIBIT B.1
Page 4 of 6
================================================================================
DST Fees
DST charges $1,500 per cusip per year for the NSCC platform
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 $.30 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.
WEB SERVICES EXHIBIT B.2
Page 5 of 6
================================================================================
Base Fee
Basic Package/1/ $10,000
Advanced Package/2/ $15,000
FAN Set-up Fee $ 5,000
Transaction Fees
Account Inquiry (Position) $ .05
Account Inquiry (History) $ .05
Transactions/3/ $ .50
Monthly Minimum Transaction Fees $ 2,000
Other Fees
Fund-Specific Enhancements/Consulting $150/hour
Tutorial Web Site $ 5,000
Notes:
1. These fees apply only to cases where the Fund provides a link from the
Customer Web Site to the DST Web Site.
2. The FAN set-up fee is a one-time charge. The Customer will only incur
this charge once, regardless of the number of FAN Web Services in which
the Customer participates.
3. Other Transactions may be supported in the future, the fees for which
will be determined at that time. The Customer will not be obligated to
offer new Transaction types.
4. If a Customer upgrades from the "Basic" package to the "Advanced"
package, the Customer will pay an additional $5,000 fee for the upgrade.
_____________________
/1/ Includes 10 hours of consulting. Additional hours will be billed at
$150/hour.
/2/ Includes 15 hours of consulting. Additional hours will be billed at
$150/hour.
/3/ Transactions include ACH purchase, exchange, redemption via ACH, wire, or
check.
EXHIBIT B.3
Page 6 of 6
================================================================================
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 See Exhibit A
(Fund/Serv and Networking)
Off-site Record Storage
Second Site Disaster
Backup Fee (per account) $0.10 per account
per year
Transmission of Statement Data for Currently $.035 per
Remote Processing, except for transmissions to OTS shareholder
record
Travel, Per Diem and other Billables
Incurred by DST personnel traveling to,
at and from the Fund at the request
of the Fund
EXHIBIT C
AUTHORIZED PERSONNEL
Pursuant to Section 7.A. of the Agency Agreement between the Corporation and DST
(the "Agreement"), the Corporation authorizes the following the Corporation
personnel to provide instructions to DST, and receive inquiries from DST in
connection with the Agreement:
Name Title
---- -----
_____________________________ ________________________________
_____________________________ ________________________________
_____________________________ ________________________________
_____________________________ ________________________________
_____________________________ ________________________________
_____________________________ ________________________________
_____________________________ ________________________________
This Exhibit may be revised by the Corporation by providing DST with a
substitute Exhibit C. Any such substitute Exhibit C shall become effective
twenty-four (24) hours after DST's receipt of the document and shall be
incorporated into the Agreement.
ACKNOWLEDGMENT OF RECEIPT:
DST SYSTEMS, INC. UAM FUNDS, INC.
By: /s/ Xxxxxxxx Xxxxx By: /s/ Xxxxx X. Xxx III
------------------ --------------------
Title:____________________________ Title: President
---------
Date:______________________________ Date:_______________________________
EXHIBIT D, p. 1
SERVICES
UAM SSC shall be responsible for receiving telephone calls, faxes, letters
and transmissions from shareholders and institutions and processing transactions
generated by such telephone calls, faxes, letters and transmissions. The general
categories of services UAM SSC will be responsible for performing include but
are not limited to:
1. Purchase, redemption and exchange of shares
2. Addition or deletion of services for an account
3. Explanation of fund or market conditions and performance
4. Research account inquiries, respond to such inquiries, and make any
required account corrections
5. Change account address or distribution option
6. Correct registration or account error
7. Send additional account statements or other requested materials or
forms
Without limitation of the foregoing, UAM SSC shall at a minimum perform the
following specific services:
1. Provide Shareholder Support
2. Process "Phone" Transactions
ACH Buys
ACH Sells
Purchase Orders (Settle by Wire or Check)
Redemption Orders (Settle by Wire or Check)
Account Exchanges
3. Process Account Maintenance
4. Problem Research and Resolution
EXHIBIT D, p. 2
SERVICES
5. Prepare Research Documentation for DST
6. All Correspondence Services except for Correspondence Requiring the
Return of Original Documentation received at DST
7. Institutional Desk Servicing, including but not limited to:
Dealer Servicing
Account Maintenance
Dealer File Maintenance
Transaction Processing
Order Settlement Support
Adjustment Processing Support
NSCC Networking Support
Fund Info/Data Dissemination
8. Redemption by ACH to bank of record
9. Redemption by check to address of record
10. Redemption by wire to bank of record
11. Exchange between funds
12. ACH purchase from bank of record
13. Process purchase order (a.k.a. confirmed purchase)
14. Request stop/replace redemption checks to address of record
15. Research/document/request corrective processing
16. Account Maintenance
Non-Signature Guaranteed address change
Stop/restart/defer a Systematic Monthly Investment (SIP)
Increase/decrease a Systematic Monthly Investment (SIP)
Increase/decrease/defer/discontinue a systematic withdrawal plan
(SWP)
Add a beneficiary birth date
Change dividend/capital gains distribution method
EXHIBIT D, p. 3
SERVICES
Stop dividend mail
Add/change a dividend move
Combine identical accounts within the same funds
Add or delete stop mail from the account
Request stop or replace a redemption check after fifteen (15) days
Add/change/delete systematic exchanges (SYSEXCH) with the same
registration
Correct minor errors in names on registration if clearly indicated
on the application
Reissue checkwriting drafts on a Cash Reserve account where the
privilege has been established
Link/unlink accounts for the INVESTOR statement product (managers
only)
