AGENCY AGREEMENT
THIS AGREEMENT made the ________ day of ________________, 19____,
by and between EAI SELECT MANAGERS EQUITY FUND, a Massachusetts business trust
having its principal place of business at 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxxxx 00000-0000 ("Fund"), 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, Fund desires to appoint DST as Transfer Agent and Dividend
Disbursing Agent, and DST desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Documents to be Filed with Appointment.
In connection with the appointment of DST as Transfer Agent and
Dividend Disbursing Agent for Fund, there will be filed with DST
the following documents:
A. A certified copy of the resolutions of the Board of
Directors/Trustees of Fund appointing DST as Transfer Agent
and Dividend Disbursing Agent, approving the form of this
Agreement, and designating certain persons to sign stock
certificates, if any, and give written instructions and
requests on behalf of Fund;
B. A certified copy of the Articles of Incorporation of Fund
and all amendments thereto;
C. A certified copy of the Bylaws of Fund;
D. Copies of Registration Statements and amendments thereto,
filed with the Securities and Exchange Commission.
E. Specimens of all forms of outstanding stock certificates,
in the forms approved by the Board of Directors of Fund,
with a certificate of the Secretary of Fund, as to such
approval;
F. Specimens of the signatures of the officers of the Fund
authorized to sign stock certificates and individuals
authorized to sign written instructions and requests;
G. An opinion of counsel for Fund with respect to:
1. Fund's organization and existence under the laws of its
state of organization,
2. The status of all shares of stock of Fund covered by
the appointment under the Securities Act of 1933, as
amended, and any other applicable federal or state
statute, and
3. That all issued shares are, and all unissued shares
will be, when issued, validly issued, fully paid and
nonassessable.
2. Certain Representations and Warranties of DST. DST represents and
warrants to Fund that:
A. It is a corporation duly organized and existing and in good
standing under the laws of Delaware.
B. It is duly qualified to carry on its business in the State
of Missouri.
C. It is empowered under applicable laws and by its Articles
of Incorporation and bylaws to enter into and perform the
services contemplated in this Agreement.
D. It is registered as a transfer agent to the extent required
under the Securities Exchange Act of 1934.
E. All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
F. It has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties
and obligations under this Agreement.
3. Certain Representations and Warranties of Fund.
Fund 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 State of Massachusetts.
B. It is an open-end management investment company registered
under the Investment Company Act of 1940, as amended.
C. A registration statement under the Securities Act of 1933
has been filed and will be effective with respect to all
shares of Fund being offered for sale.
D. All requisite steps have been and will continue to be taken
to register Fund's shares for sale in all applicable states
and such registration will be effective at all times shares
are offered for sale in such state.
E. Fund is empowered under applicable laws and by its charter
and bylaws to enter into and perform this Agreement.
4. Scope of Appointment.
A. Subject to the conditions set forth in this Agreement, Fund
hereby appoints DST as Transfer Agent and Dividend Disbursing
Agent.
B. DST hereby accepts such appointment and agrees that it will
act as Fund's Transfer Agent and Dividend Disbursing Agent.
DST agrees that it will also act as agent in connection
with Fund's periodic withdrawal payment accounts and
other open accounts or similar plans for shareholders,
if any.
C. Fund 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.
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, dividend
disbursing and shareholders' servicing agent for the Fund,
and as agent of the Fund for shareholder accounts thereof,
in a timely manner: issuing (including countersigning),
transferring and canceling share certificates; maintaining
all shareholder accounts; providing transaction journals;
preparing shareholder meeting lists, mailing proxies and proxy
materials, receiving and tabulating proxies, certifying the
shareholder votes in the Fund; mailing shareholder reports and
prospectuses; withholding, as required by Federal law, taxes on
shareholder accounts, disbursing income dividends and capital
gains distributions to shareholders, preparing, filing and
mailing U.S. Treasury Department Forms 1099, 1042, and 1042S and
performing and paying backup withholding as required for all
shareholders; preparing and mailing confirmation forms to
shareholders and dealers, as instructed, for all purchases and
liquidations of shares of the Fund and other confirmable
transactions in shareholders' accounts; recording reinvestment
of dividends and distributions in shares of the Fund; providing
or making available on-line daily and monthly reports as
provided by the TA2000{TM} System and as requested by the Fund
or its management company; maintaining those records necessary
to carry out DST's duties hereunder, including all information
reasonably required by the Fund to account for all transactions
in Fund shares, calculating the appropriate sales charge with
respect to each purchase of Fund shares as set forth in the
prospectus for the Fund, determining the portion of each sales
charge payable to the dealer participating in a sale in
accordance with schedules delivered to DST by the Fund's
principal underwriter or distributor (hereinafter "principal
underwriter") from time to time, disbursing dealer commissions
collected to such dealers, determining the portion of each sales
charge payable to such principal underwriter and disbursing such
commissions to the principal underwriter; receiving
correspondence pertaining to any former, existing or new
shareholder account, processing such correspondence for
proper recordkeeping, and responding promptly to shareholder
correspondence; mailing to dealers confirmations of wire order
trades; mailing copies of shareholder statements to
shareholders and registered representatives of dealers in
accordance with the Fund's instructions; and processing,
generally on the date of receipt, purchases or redemptions or
instructions to settle any mail or wire order purchases or
redemptions received in proper order as set forth in the
prospectus, rejecting promptly any requests not received in
proper order (as defined by the Fund or its agents), and causing
exchanges of shares to be executed in accordance with the Fund's
instructions and prospectus and the general exchange privilege
application.
F. Fund shall have the right to add new series to the TA2OOO{TM}
System upon at least thirty (30) days' prior written notice
to DST provided that the requirements of the new series are
generally consistent with services then being provided by
DST under this Agreement. Rates or charges for additional
series shall be as set forth in Exhibit B, as hereinafter
defined, for the remainder of the contract term except as
such series use functions, features or characteristics for
which DST has imposed an additional charge as part of its
standard pricing schedule. In the latter event, rates and
charges shall be in accordance with DST's then-standard
pricing schedule.
G. 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 Fund's instructions, prospectus or
application as amended from time to time, for the Fund
provided (i) DST is advised in advance by the Fund of any
changes therein and (ii) the TA2000{TM} System and the mode of
operations utilized by DST as then constituted supports
such additional functions and features. If any addition to,
improvement of or change in the features and functions
currently provided by the TA2000{TM} System or the operations
as requested by the Fund requires an enhancement or modification
to the TA2000{TM} System or to operations as 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 the current level of service, DST
shall advise the Fund of the amount of such increase and if the
Fund elects to utilize such function, feature or service, DST
shall be entitled to increase its fees by the amount of the
increase in costs. In no event shall DST be responsible for or
liable to provide any additional function, feature, improvement
or change in method of operation until it has consented thereto
in writing.
5. Limit of Authority.
Unless otherwise expressly limited by the resolution of appointment or
by subsequent action by the Fund, the appointment of DST as Transfer
Agent will be construed to cover the full amount of authorized stock of
the class or classes for which DST is appointed as the same will, from
time to time, be constituted, and any subsequent increases in such
authorized amount.
In case of such increase Fund will file with DST:
A. If the appointment of DST was theretofore expressly limited,
a certified copy of a resolution of the Board of Directors
of Fund increasing the authority of DST;
B. A certified copy of the amendment to the Articles of
Incorporation of Fund authorizing the increase of stock;
C. A certified copy of the order or consent of each governmental or
regulatory authority required by law to consent to the issuance
of the increased stock, and an opinion of counsel that the order
or consent of no other governmental or regulatory authority is
required;
D. Opinion of counsel for Fund stating:
1. The status of the additional shares of stock of Fund
under the Securities Act of 1933, as amended, and any
other applicable federal or state statute; and
2. That the additional shares are, or when issued will be,
validly issued, fully paid and nonassessable.
6. Compensation and Expenses.
A. In consideration for its services hereunder as Transfer
Agent and Dividend Disbursing Agent, Fund will pay to DST
from time to time a reasonable compensation for all services
rendered as Agent, and also, all its reasonable out-of-pocket
expenses, charges, counsel fees, and other disbursements
(Compensation and Expenses) incurred in connection with the
agency. Such compensation is set forth in a separate schedule
to be agreed to by Fund and DST, a copy of which is attached
hereto as Exhibit A. If the Fund has not paid such
Compensation and Expenses to DST within a reasonable time, DST
may charge against any monies held under this Agreement, the
amount of any Compensation and/or Expenses for which it shall be
entitled to reimbursement under this Agreement.
B. The Fund also agrees promptly to reimburse DST for all
reasonable out-of-pocket expenses or disbursements incurred
by DST in connection with the performance of services under
this Agreement including, but not limited to, expenses for
postage, express delivery services, freight charges, envelopes,
checks, drafts, forms (continuous or otherwise), specially
requested reports and statements, telephone calls, telegraphs,
stationery supplies, counsel fees, outside printing and mailing
firms (including Output Technology, Inc. and Support Resources,
Inc.), magnetic tapes, reels or cartridges (if sent to a Fund or
to third party at the Fund's request) and magnetic tape handling
charges, off-site record storage, media for storage of
records (e.g., microfilm, microfiche, optical platters,
computer tapes), computer equipment installed at the Fund's
request at the Fund's or a third party's premises,
telecommunications equipment, telephone/telecommunication
lines between Fund and its agents, on one hand, and DST on
the other, proxy soliciting, processing and/or tabulating
costs, second-site backup computer facility, transmission
of statement data for remote printing or processing, and
NSCC transaction fees to the extent any of the foregoing are
paid by DST. The Fund agrees to pay postage expenses at
least one day in advance if so requested. In addition, any
other expenses incurred by DST at the request or with the
consent of the Fund will be promptly reimbursed by the Fund.
C. Amounts due hereunder shall be due and paid on or before the
thirtieth (30th) business day after receipt of the statement
therefor by the Fund (the "Due Date"). The Fund is aware
that its failure to pay all amounts in a timely fashion so
that they will be received by DST on or before the Due Date
will give rise to costs to DST not contemplated by this
Agreement, including but not limited to carrying, processing
and accounting charges. Accordingly, subject to Section
6.D. hereof, in the event that any amounts due hereunder are
not received by DST by the Due Date, the Fund shall pay a
late charge equal to the lesser of the maximum amount
permitted by applicable law or the product of that rate
announced from time to time by State Street Bank and Trust
Company as its "Prime Rate" plus three (3) percentage points
times the amount overdue, times the number of days from the
Due Date up to and including the day on which payment is
received by DST divided by 365. The parties hereby agree
that such late charge represents a fair and reasonable
computation of the costs incurred by reason of late payment
or payment of amounts not properly due. Acceptance of such
late charge shall in no event constitute a waiver of the
Fund's or DST's default or prevent the non-defaulting party
from exercising any other rights and remedies available to
it.
D. In the event that any charges are disputed, the Fund shall,
on or before the Due Date, pay all undisputed amounts due
hereunder and notify DST in writing of any disputed charges
for out-of-pocket expenses which it is disputing in good
faith. Payment for such disputed charges shall be due on
or before the close of the fifth (5th) business day after
the day on which DST provides to the Fund documentation
which an objective observer would agree reasonably supports
the disputed charges (the "Revised Due Date"). Late charges
shall not begin to accrue as to charges disputed in good
faith until the first day after the Revised Due Date.
E. The fees and charges set forth on Exhibit A shall increase
or may be increased as follows:
(1) On the first day of each new term, in accordance with
the "Fee Increases" provision in Exhibit A.
(2) DST may increase the fees and charges set forth on
Exhibit A upon at least ninety (90) days prior written
notice, if changes in existing laws, rules or
regulations: (i) require substantial system
modifications or (ii) materially increase cost of
performance hereunder.
(3) DST may charge for additional features of TA2000 used
by the Fund which features are not consistent with the
Fund's current processing requirements.
If DST notifies Fund of an increase in fees or charges
pursuant to subparagraph (2) of this Section 6.E., the parties
shall confer, diligently and in good faith and agree upon a new
fee to cover the amount necessary, but not more than such amount,
to reimburse DST for the Fund's aliquot portion of the cost of
developing the new software to comply with regulatory charges and
for the increased cost of operation.
If DST notifies Fund of an increase in fees or charges under
subparagraph (3) of this Section 6.E., the parties shall confer,
diligently and in good faith, and agree upon a new fee to cover
such new fund feature.
7. Operation of DST System.
In connection with the performance of its services under this
Agreement, DST is responsible for such items as:
A. That entries in DST's records and in the Fund's records on
the TA2000{TM} System created by DST reflect the orders,
instructions, and other information received by DST from
broker-dealers, shareholders, the Fund, the Fund's principal
underwriter or Fund's investment adviser;
B. That shareholder lists, shareholder account verifications,
confirmations and other shareholder account information to
be produced from its records or data be available and
accurately reflect the data in the Fund's records on the
TA2000{TM} System;
C. The accurate and timely issuance of dividend and distribution
checks in accordance with instructions received from the Fund
and the data in the Fund's records on the TA2000{TM} System;
D. That redemption transactions and payments be effected
timely, under normal circumstances on the day of receipt,
and accurately in accordance with redemption instructions
received by DST from dealers, shareholders, the Fund or the
Fund's principal underwriter and the data in the Fund's
records on the TA2OOO{TM} 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 of's" due to clerical errors or misinterpretations
of shareholder instructions, but DST will discuss with the
Fund DST's accepting liability for an "as of" on a case-by-case
basis and may accept financial responsibility for a particular
situation resulting in a financial loss to the Fund where DST in
its discretion deems that to be appropriate;
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
their or DST's counsel (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.
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 Exchange Act, and the
rules and regulations thereunder. In the absence of bad
faith, willful misconduct, knowing violations of applicable
law pertaining to the manner in which transfer agency
services are to be performed by DST (excluding any violations
arising directly or indirectly out of the actions of DST-
unaffiliated third parties), 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 Fund and reviewed and
approved by Fund counsel, as amended from time to time with
approval of counsel, or for any deviation therefrom approved
by Fund or DST counsel. DST shall not be responsible for,
and the Fund shall indemnify and hold DST harmless from and
against, any and all losses, damages, costs, charges,
counsel fees, payments, expenses and liability which may be
asserted against DST or for which DST may be held to be
liable, arising out of or attributable to:
(1) All actions of DST required to be taken by DST pursuant
to this Agreement, provided that DST has acted in good
faith and with due diligence and reasonable care;
(2) The Fund's refusal or failure to comply with the terms
of this Agreement, the Fund's negligence or willful
misconduct, or the breach of any representation or
warranty of the Fund hereunder;
(3) The good faith reliance on, or the carrying out of,
any written or oral instructions or requests of persons
designated by the Fund in writing (see Exhibit B) from
time to time as authorized to give instructions on
its behalf or representatives of the Fund's investment
advisor, sponsor or principal underwriter or DST's good
faith reliance on, or use of, information, data,
records and documents received from, or which have been
prepared and/or maintained by the Fund, its investment
advisor, its sponsor or its principal underwriter;
(4) Defaults by dealers or shareowners with respect to
payment for share orders previously entered;
(5) The offer or sale of the Fund's shares in violation
of any requirement under federal securities laws or
regulations or the securities laws or regulations of
any state or in violation of any stop order or other
determination or ruling by any federal agency or state
with respect to the offer or sale of such shares in
such state (unless such violation results from DST's
failure to comply with written instructions of the
Fund or of any officer of the Fund that no offers or
sales be input into the Funds securityholder records
in or to residents of such state);
(6) The Fund's errors and mistakes 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 Fund's records, shareholder and other records,
delivered to DST hereunder by the Fund or its prior
agent(s); and
(8) Actions or omissions to act by the Fund or agents
designated by the Fund with respect to duties assumed
thereby as provided for in Section 21 hereof.
B. Except where DST is entitled to indemnification under
Section 8.A. hereof and with respect to "as of s" set forth
in Section 7.F., DST shall indemnify and hold the Fund
harmless from and against any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liability
arising out of DST's failure to comply with the terms of this
Agreement or arising out of or attributable to DST's negligence
or willful misconduct or breach of any representation or
warranty of DST hereunder.
C. EXCEPT FOR VIOLATIONS OF SECTIONS 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.
D. 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 there for),
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 Fund.
A. All requisite steps will be taken by Fund from time to time
when and as necessary to register the Fund's shares for
sale in all states in which Fund's shares shall at the time
be offered for sale and require registration. If at any
time Fund will receive notice of any stop order or other
proceeding in any such state affecting such registration or
the sale of Fund's shares, or of any stop order or other
proceeding under the federal securities laws affecting the
sale of Fund's shares, 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.E. above and establish and
maintain facilities and procedures reasonably acceptable to
Fund for safekeeping of stock certificates, check forms,
and facsimile signature imprinting devices, if any; and for
the preparation or use, and for keeping account of, such
certificates, forms and devices, and to carry such insurance
as it considers adequate and reasonably available.
C. To the extent required by Section 31 of the Investment
Company Act of 1940 as amended and Rules thereunder, DST
agrees that all records maintained by DST relating to the
services to be performed by DST under this Agreement are the
property of Fund and will be preserved and will be surrendered
promptly to Fund on request.
D. DST agrees to furnish Fund annual reports of its parent's
financial condition, consisting of a balance sheet, earnings
statement and any other financial information reasonably
requested by Fund. 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.
F. DST will permit Fund and its authorized representatives to
make periodic inspections of its operations as such would
involve the Fund at reasonable times during business hours.
G. DST agrees to use its best efforts to provide in Kansas
City at the Fund's expense two (2) man weeks of training
for the Fund's personnel in connection with use and operation of
the TA2000{TM} System. All travel and reimbursable expenses
incurred by the Fund's personnel in connection with and during
training at DST's Facility shall be borne by the Fund. At the
Fund's option and expense, DST also agrees to use its best
efforts to provide an additional two (2) man weeks of training
at the Fund's facility for the Fund's personnel in connection
with the conversion to the TA2OOO{TM} System. Reasonable
travel, per diem and reimbursable expenses incurred by DST
personnel in connection with and during training at the Fund's
facility or in connection with the conversion shall be borne by
the Fund.
10. Recapitalization or Readjustment.
In case of any recapitalization, readjustment or other change in
the capital structure of Fund requiring a change in the form of
stock certificates, DST will issue or register certificates in
the new form in exchange for, or in transfer of, the outstanding
certificates in the old form, upon receiving:
A. Written instructions from an officer of Fund;
B. Certified copy of the amendment to the Articles of Incorporation
or other document effecting the change;
C. Certified copy of the order or consent of each governmental
or regulatory authority, required by law to the issuance of
the stock in the new form, and an opinion of counsel that
the order or consent of no other government or regulatory
authority is required;
D. Specimens of the new certificates in the form approved by
the Board of Directors of Fund, with a certificate of the
Secretary of Fund as to such approval;
E. Opinion of counsel for Fund stating:
(1) The status of the shares of stock of Fund in the new
form under the Securities Act of 1933, as amended and
any other applicable federal or state statute; and
(2) That the issued shares in the new form are, and all
unissued shares will be, when issued, validly issued,
fully paid and nonassessable.
11. Stock Certificates. [STRIKE IF THE FUND WILL NOT ISSUE STOCK
CERTIFICATES]
Fund will furnish DST with a sufficient supply of blank stock
certificates and from time to time will renew such supply upon
the request of DST. Such certificates will be signed manually or
by facsimile signatures of the officers of Fund authorized by law
and by bylaws to sign stock certificates, and if required, will
bear the corporate seal or facsimile thereof.
12. Death, Resignation or Removal of Signing Officer.
Fund will file promptly with DST written notice of any change in
the officers authorized to sign stock certificates, written
instructions or requests, together with two signature cards bearing the
specimen signature of each newly authorized officer. In case any
officer of Fund who will have signed manually or whose facsimile
signature will have been affixed to blank stock certificates will die,
resign, or be removed prior to the issuance of such certificates, DST
may issue or register such stock certificates as the stock certificates
of Fund notwithstanding such death, resignation, or removal, until
specifically directed to the contrary by Fund in writing. In
the absence of such direction, Fund will file promptly with DST
such approval, adoption, or ratification as may be required by
law.
13. Future Amendments of Charter and Bylaws.
Fund will promptly file with DST copies of all material amendments to
its Articles of Incorporation or bylaws made after the date of this
Agreement.
14. Instructions, Opinion of Counsel and Signatures.
At any time DST may apply to any person authorized by the Fund
to give instructions to DST, and may with the approval of a Fund
officer consult with legal counsel for Fund or its own legal
counsel at the expense of Fund, with respect to any matter arising in
connection with the agency and it will not be liable for any action
taken or omitted by it in good faith in reliance upon such instructions
or upon the opinion of such counsel. 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 Fund. It will also be protected
in recognizing stock certificates which it reasonably believes to
bear the proper manual or facsimile signatures of the officers of
Fund, and the proper countersignature of any former Transfer
Agent or Registrar, or of a co-Transfer Agent or co-Registrar.
15. Force Majeure and Disaster Recovery Plans.
A. DST shall not be responsible or liable for its failure or
delay in performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by
circumstances beyond its reasonable control, including,
without limitation: any interruption, loss or malfunction
or any utility, transportation, computer (hardware or
software) or communication service; inability to obtain
labor, material, equipment or transportation, or a delay in
mails; governmental or exchange action, statute, ordinance,
rulings, regulations or direction; war, strike, riot,
emergency, civil disturbance, terrorism, vandalism, explosions,
labor disputes, freezes, floods, fires, tornados, acts of God or
public enemy, revolutions, or insurrection; or any other cause,
contingency, circumstance or delay not subject to DST's
reasonable control which prevents or hinders DST's performance
hereunder.
B. DST currently maintains an agreement with a third party
whereby DST is to be permitted to use on a "shared use"
basis a "hot site" (the "Recovery Facility") maintained by
such party in event of a disaster rendering the DST Facilities
inoperable. DST has developed and is continually revising a
Business Contingency Plan 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 Fund
is paying its pro rata portion of the charge therefor, DST
would, in event of a disaster rendering the DST Facilities
inoperable, convert the TA2000{TM} System containing the
designated Fund data to the computers at the Recovery Facility
in accordance with the then current Business Contingency Plan.
D. DST also currently maintains, separate from the area in
which the operations which provides the services to the
Fund hereunder are located, a Crisis Management Center
consisting of phones, computers and the other equipment
necessary to operate a full service transfer agency business
in the event one of its operations areas is rendered inoperable.
The transfer of operations to other operating areas or to the
Crisis Management Center is also covered in DST's Business
Contingency Plan.
16. Certification of Documents.
The required copy of the Articles of Incorporation of Fund and
copies of all amendments thereto will be certified by the Secretary of
State (or other appropriate official) of the State of Incorporation,
and if such Articles of Incorporation and amendments are required by
law to be also filed with a county, city or other officer of official
body, a certificate of such filing will appear on the certified copy
submitted to DST. A copy of the order or consent of each governmental
or regulatory authority required by law to the issuance of the stock
will be certified by the Secretary or Clerk of such governmental or
regulatory authority, under proper seal of such authority. The copy of
the Bylaws and copies of all amendments thereto, and copies of
resolutions of the Board of Directors of Fund, will be certified by the
Secretary or an Assistant Secretary of Fund under the Fund's seal.
17. Records.
DST will maintain customary records in connection with its agency, and
particularly will maintain those records required to be maintained
pursuant to subparagraph (2)(iv) of paragraph (b) of Rule 31a-1 under
the Investment Company Act of 1940, if any.
18. Disposition of Books, Records and Canceled Certificates
DST may send periodically to Fund, or to where designated by the
Secretary or an Assistant Secretary of Fund, all books, documents, and
all records no longer deemed needed for current purposes and stock
certificates which have been canceled in transfer or in exchange, upon
the understanding that such books, documents, records, and stock
certificates will be maintained by the Fund under and in accordance
with the requirements of Section l7Ad-7 adopted under the Securities
Exchange Act of 1934. Such materials will not be destroyed by Fund
without the consent of DST (which consent will not be unreasonably
withheld), but will be safely stored for possible future reference.
19. Provisions Relating to DST as Transfer Agent.
A. DST will make original issues of stock certificates upon
written request of an officer of Fund and upon being furnished
with a certified copy of a resolution of the Board of Directors
authorizing such original issue, an opinion of counsel as
outlined in paragraphs 1.D. and G. of this Agreement, any
documents required by paragraphs 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 Fund will
furnish DST with sufficient funds to pay all required taxes
on the original issue of the stock, if any. Fund will
furnish DST such evidence as may be required by DST to show
the actual value of the stock. If no taxes are payable DST
will be furnished with an opinion of outside counsel to that
effect.
C. Shares of stock will be transferred and new certificates
issued in transfer, or shares of stock accepted for redemption
and funds remitted therefor, or book entry transfer be effected,
upon surrender of the old certificates in form or receipt by DST
of instructions deemed by DST properly endorsed for transfer or
redemption accompanied by such documents as DST may deem
necessary to evidence the authority of the person making the
transfer or redemption. DST reserves the right to refuse to
transfer or redeem shares until it is satisfied that the
endorsement or signature on the certificate or any other
document is valid and genuine, and for that purpose it may
require a guaranty of signature in accordance with the Signature
Guarantee Procedures. DST also reserves the right to refuse to
transfer or redeem shares until it is satisfied that the
requested transfer or redemption is legally authorized, and
it will incur no liability for the refusal in good faith to
make transfers or redemptions which, in its judgment, are
improper or unauthorized. DST may, in effecting transfers
or redemptions, rely upon Simplification Acts or other
statutes which protect it and Fund in not requiring complete
fiduciary documentation. In cases in which DST is not
directed or otherwise required to maintain the consolidated
records of shareholder's accounts, DST will not be liable
for any loss which may arise by reason of not having such
records.
D. When mail is used for delivery of stock certificates, DST
will forward stock certificates in "nonnegotiable" form by
first class or registered mail and stock certificates in
"negotiable" form by registered mail, all such mail deliveries
to be covered while in transit to the addressee by insurance
arranged for by DST.
E. DST will issue and mail subscription warrants,
certificates representing stock dividends, exchanges or
split ups, or act as Conversion Agent upon receiving written
instructions from any officer of Fund and such other
documents as DST deems necessary.
F. DST will issue, transfer, and split up certificates and
will issue certificates of stock representing full shares
upon surrender of scrip certificates aggregating one full
share or more when presented to DST for that purpose upon
receiving written instructions from an officer of Fund and
such other documents as DST may deem necessary.
G. DST may issue new certificates in place of certificates
represented to have been lost, destroyed, stolen or otherwise
wrongfully taken upon receiving instructions from Fund and
indemnity satisfactory to DST and Fund, and may issue new
certificates in exchange for, and upon surrender of, mutilated
certificates. Such instructions from Fund will be in such form
as will be approved by the Board of Directors of Fund and will
be in accordance with the provisions of law and the bylaws of
Fund governing such matter.
H. DST will supply a shareholder's list to Fund for its annual
meeting upon receiving a request from an officer of Fund.
It will also, at the expense of the Fund, supply lists at
such other times as may be requested by an officer of Fund.
I. Upon receipt of written instructions of an officer of Fund,
DST will, at the expense of the Fund, address and mail
notices to shareholders.
J. In case of any request or demand for the inspection of the
stock books of Fund or any other books in the possession
of DST, DST will endeavor to notify Fund and to secure
instructions as to permitting or refusing such inspection.
DST reserves the right, however, to exhibit the stock books
or other books to any person in case it is advised by its
counsel that it may be held responsible for the failure to
exhibit the stock books or other books to such person.
20. Provisions Relating to Dividend Disbursing Agency.
A. DST will, at the expense of Fund, provide a special form
of check containing the imprint of any device or other
matter desired by Fund. Said checks must, however, be of
a form and size convenient for use by DST.
B. If Fund desires to include additional printed matter,
financial statements, etc., with the dividend checks, the
same will be furnished DST within a reasonable time prior
to the date of mailing of the dividend checks, at the
expense of Fund.
C. If Fund desires its distributions mailed in any special
form of envelopes, sufficient supply of the same will be
furnished to DST but the size and form of said envelopes
will be subject to the approval of DST. If stamped envelopes
are used, they must be furnished by Fund; or if postage stamps
are to be affixed to the envelopes, the stamps or the cash
necessary for such stamps must be furnished by Fund.
D. DST shall establish and maintain on behalf of the Fund one
or more deposit accounts as Agent for Fund, into which DST
shall deposit the funds DST receives for payment of dividends,
distributions, redemptions or other disbursements provided for
hereunder and to draw checks against such accounts.
E. DST is authorized and directed to stop payment of checks
theretofore issued hereunder, but not presented for payment,
when the payees thereof allege either that they have not
received the checks or that such checks have been mislaid,
lost, stolen, destroyed or through no fault of theirs, are
otherwise beyond their control, and cannot be produced by
them for presentation and collection, and, to issue and
deliver duplicate checks in replacement thereof.
21. Assumption of Duties By the Fund or Agents Designated By the
Fund.
A. The Fund or its designated agents other than DST may assume
certain duties and responsibilities of DST or those services of
Transfer Agent and Dividend Disbursement Agent as those terms
are referred to in Section 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 TA2OOO{TM} system and assigning social codes and Taxpayer
Identification Number codes thereof, and disbursing monies
of the Fund, said assumption to be embodied in writing to
be signed by both parties.
B. To the extent the Fund or its agent or affiliate assumes such
duties and responsibilities, DST shall be relieved from
all responsibility and liability therefor and is hereby
indemnified and held harmless against any liability therefrom
and in the same manner and degree as provided for in Section 8
hereof.
C. Initially the Fund or its designees shall be responsible for
the following: [LIST RESPONSIBILITIES OR DELETE AS
APPROPRIATE.] (i) answer and respond to phone calls from
shareholders and broker-dealers, and (ii) scan items into
DST's AWD{TM} System as such calls or items are received by the
Fund, and (iii) enter and confirm wire order trades.
22. Termination of Agreement.
A. This Agreement shall be in effect for an initial period of
____ years and thereafter may be terminated by either party
upon receipt of one (1) year's written notice from 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.
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) Any interruption or cessation of operations by the
other party or its assigns which materially interferes
with the business operation of the first party;
(2) The bankruptcy of the other party or its assigns or the
appointment of a receiver for the other party or its
assigns;
(3) Any merger, consolidation or sale of substantially all
the assets of the other party or its assigns; or
(4) 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, Fund will promptly pay DST all
amounts due to DST hereunder. In addition, if this Agreement is
terminated by the Fund for any reason other than those set forth
in Sections 22.B. or 22.C. hereof, then the Fund shall pay to
DST a termination fee equal to the lesser of (i) the aggregate
of the fees charged to the Fund during the previous six (6)
calendar months preceding receipt of the notice or (ii) the
average monthly fee over the preceding six (6) months times the
number of months remaining in the then current term after
termination. If the Fund shall not have been billed for six (6)
months before termination, the average monthly fee shall be
calculated by dividing the aggregate fees charged to the
Fund during whatever period it was billed by the number of
months in that period and that average monthly fee shall be
multiplied by six (6) in order to determine the aggregate
fees in subparagraph 22.C.(i). In any event, the effective date
of any deconversion as a result of termination hereof
shall not occur during the period from December 15th through
March 30th of any year to avoid adversely impacting year
end.
C. In the event of termination, DST will use its best efforts
to transfer the records of the Fund to the designated
successor transfer agent, to provide reasonable assistance
to the Fund and its designated successor transfer agent,
and to provide other information relating to its service
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, or to provide any new,
functionality or to require DST to disclose any DST Confidential
Information or any information which is otherwise confidential
to DST.
23. Confidentiality.
A. DST agrees that, except as provided in the last sentence of
Section 19.J hereof, or as otherwise required by law, DST
will keep confidential all records of and information in its
possession relating to 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 Fund.
B. Fund agrees to keep confidential all financial statements
and other financial records (other than statements and
records relating solely to Fund'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 pursuant to this Agreement
and will not disclose the same to any person except at the
request or with the consent of DST.
C. (1) The Fund acknowledges that DST has proprietary rights
in and to the TA2OOO{TM} System used to perform services
hereunder including, but not limited to the maintenance
of shareholder accounts and records, processing of
related information and generation of output,
including, without limitation any changes or
modifications of the TA2000{TM} System and any other DST
programs, data bases, supporting documentation, or
procedures (collectively "DST Confidential Information")
which the Fund's access to the TA2OOO{TM} System or
computer hardware or software may permit the Fund or its
employees or agents to become aware of or to access and
that the DST Confidential Information constitutes
confidential material and trade secrets of DST. The
Fund agrees to maintain the confidentiality of the DST
Confidential Information.
(2) The Fund acknowledges that any unauthorized use,
misuse, disclosure or taking of DST Confidential
Information which is confidential as provided by law, or
which is a trade secret, residing or existing
internal or external to a computer, computer system,
or computer network, or the knowing and unauthorized
accessing or causing to be accessed of any computer,
computer system, or computer network, may be subject
to civil liabilities and criminal penalties under
applicable state law. The Fund will advise all of its
employees and agents who have access to any DST
Confidential Information or to any computer equipment
capable of accessing DST or DST hardware or software
of the foregoing. DST is intended to be, and shall be,
a third party beneficiary of the Fund's obligations
and undertakings contained in this Section.
(3) Fund acknowledges that disclosure of the DST
Confidential Information may give rise to an irreparable
injury to DST inadequately compensable in damages.
Accordingly, DST may seek (without the posting of any
bond or other security) injunctive relief against the
breach of the foregoing undertaking of confidentiality
and nondisclosure, in addition to any other legal
remedies which may be available, and Fund consents to
the obtaining of such injunctive relief. All of the
undertakings and obligations relating to confidentiality
and nondisclosure, whether contained in this Section or
elsewhere in this Agreement shall survive the
termination or expiration of this Agreement for a period
of ten (10) years.
24. Changes and Modifications.
A. During the term of this Agreement DST will use on behalf of
the Fund without additional cost all modifications,
enhancements, or changes which DST may make to the TA2OOO{TM}
System in the normal course of its business and which are
applicable to functions and features offered by the Fund,
unless substantially all DST clients are charged separately
for such modifications, enhancements or changes, including,
without limitation, substantial system revisions or
modifications necessitated by changes in existing laws,
rules or regulations. The Fund agrees to pay DST promptly
for modifications and improvements which are charged for
separately at the rate provided for in DST's standard
pricing schedule which shall be identical for substantially
all clients, if a standard pricing schedule shall exist.
If there is no standard pricing schedule, the parties shall
mutually agree upon the rates to be charged.
B. DST shall have the right, at any time and from time to time,
to alter and modify any systems, programs, procedures or
facilities used or employed in performing its duties and
obligations hereunder; provided that the Fund will be
notified as promptly as possible prior to implementation of
such alterations and modifications and that no such alteration
or modification or deletion shall materially adversely change or
affect the operations and procedures of the Fund in using or
employing the TA2000{TM} System or DST Facilities hereunder or
the reports to be generated by such system and facilities
hereunder, unless the Fund is given thirty (30) days prior
notice to allow the Fund to change its procedures and DST
provides the Fund with revised operating procedures and
controls.
C. All enhancements, improvements, changes, modifications or
new features added to the TA2OOO{TM} System however developed
or paid for shall be, and shall remain, the confidential and
exclusive property of, and proprietary to, DST.
25. Subcontractors.
Nothing herein shall impose any duty upon DST in connection with
or make DST liable for the actions or omissions to act of unaffiliated
third parties such as, by way of example and not limitation, Airborne
Services, the U.S. mails and telecommunication companies, provided, if
DST selected such company, DST shall have exercised due care in
selecting the same.
26. Limitations on Liability.
A. If Fund is comprised of more than one Portfolio, each
Portfolio shall be regarded for all purposes hereunder as
a separate party apart from each other Portfolio. Unless
the context otherwise requires, with respect to every
transaction covered by this Agreement, every reference
herein to the Fund shall be deemed to relate solely to the
particular Portfolio to which such transaction relates.
Under no circumstances shall the rights, obligations or
remedies with respect to a particular Portfolio constitute
a right, obligation or remedy applicable to any other
Portfolio. The use of this single document to memorialize
the separate agreement of each Portfolio is understood to
be for clerical convenience only and shall not constitute
any basis for joining the Portfolios for any reason. [DELETE IF
NOT APPLICABLE)
B. Notice is hereby given that a copy of Fund's Trust Agreement
and all amendments thereto is on file with the Secretary of
State of the state of its organization; that this Agreement
has been executed on behalf of Fund by the undersigned duly
authorized representative of Fund in his/her capacity as
such and not individually; and that the obligations of this
Agreement shall only be binding upon the assets and property
of Fund and shall not be binding upon any trustee, officer
or shareholder of Fund individually. [DELETE IF NOT
APPLICABLE]
27. Miscellaneous.
A. This Agreement shall be construed according to, and the
rights and liabilities of the parties hereto shall be
governed by, the laws of the State of Missouri, excluding
that body of law applicable to choice of law.
B. All terms and provisions of this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the
parties hereto and their respective successors and permitted
assigns.
C. The representations and warranties, and the indemnification
extended hereunder, if any, are intended to and shall
continue after and survive the expiration, termination or
cancellation of this Agreement.
D. No provisions of the Agreement may be amended or modified
in any manner except by a written agreement properly authorized
and executed each party hereto.
E. The captions in the Agreement are included for convenience
of reference only, and in no way define or delimit any of
the provisions hereof or otherwise affect their construction
or effect.
F. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
G. If any part, term or provision of this Agreement is by the
courts held to be illegal, in conflict with any law or
otherwise invalid, the remaining portion or portions shall
be considered severable and not be affected, and the rights
and obligations of the parties shall be construed and
enforced as if the Agreement did not contain the particular
part, term or provision held to be illegal or invalid.
H. This Agreement may not be assigned by the Fund or DST
without 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 Fund and DST. It is understood and agreed that
all services performed hereunder by DST shall be as an
independent contractor and not as an employee of the Fund.
This Agreement is between DST and the Fund and neither this
Agreement nor the performance of services under it shall
create any rights in any third parties. There are no third
party beneficiaries hereto.
J. Except as specifically provided herein, this Agreement does
not in any way affect any other agreements entered into
among the parties hereto and any actions taken or omitted
by any party hereunder shall not affect any rights or
obligations of any other party hereunder.
K. The failure of either party to insist upon the performance
of any terms or conditions of this Agreement or to enforce
any rights resulting from any breach of any of the terms or
conditions of this Agreement, including the payment of
damages, shall not be construed as a continuing or permanent
waiver of any such terms, conditions, rights or privileges,
but the same shall continue and remain in full force and
effect as if no such forbearance or waiver had occurred.
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.
0000 Xxxxxxxx, 0xx Xx.
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Senior Vice President-Full Service
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
With a copy of non-operational notices to:
DST Systems, Inc.
0000 Xxxxxxxx, 0xx X.
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Legal Department
Facsimile No. : 000-000-0000
Telephone No.: 000-000-0000
If to Fund:
Xxx Xxx Associates Corp.
00 Xxxx Xxx., 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: _______________________
Facsimile No.: _______________
Telephone No. _______________
With a copy of non-operational notices to:
Evaluation Associates Capital Markets, Incorporated ___
000 Xxxxxxxxxxx Xxx., Xxxxx 000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxx
Xx. Vice President and General Counsel
Facsimile No.: ________________
Telephone 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.
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:
EAL SELECT MANAGERS EQUITY
FUND
By:
Title:
EXHIBIT A, p. 1
REMOTE SERVICE
FEE SCHEDULE
Fee Increases
The fees and charges set forth in this Exhibit B shall increase annually upon
each anniversary of this Agreement over the fees and charges during the prior
12 months in an amount equal to the annual percentage of change in the Consumer
Price Index 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 12 calendar months immediately preceding
such anniversary. In the event that this Agreement was not signed as of
the first day of the month, the fees and charges increase shall be effective as
of the first day of the month immediately following the month during which the
anniversary occurred.
OPEN AND CLOSED ACCOUNTS FEES
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 Fund,
provided that written notification is presented to DST at least forty-five (45)
days prior to the Purge Date.
REIMBURSABLE EXPENSES
Forms
Postage (to be paid in advance if so requested)
Outside Mailing Services
Computer Hardware
Telecommunications Equipment
Magnetic Tapes, Reels or Cartridges
Magnetic Tape Handling Charges
Microfiche/Microfilm
Freight Charges
Proxy Processing - per proxy mailed not including postage
Includes: Proxy Card
Printing
Outgoing Envelope
Return Envelope
Tabulation
T.I.N. Certification (W-8 & W-9)
(Postage associated with the return
envelope is included)
N.S.C.C. Communications Charge Currently $1,200.00
(Fund/Serv and Networking) per Fund per Year
Off-site Record Storage
SunGard Second Site Disaster Currently between $.06
Backup Fee (per account) and $.08 (guaranteed
not to exceed $.11
through 12/31/94)
Transmission of Statement Data for Currently $.035/per
Remote Processing record
Travel, Per Diem and other Out-of-Pockets
Incurred by DST personnel traveling to,
at and from Fund at the request of Fund
DST SYSTEMS, INC.
EVALUATION ASSOCIATES CAPITAL MARKETS, INCORPORATED (EAI)
TRANSFER AGENCY FEE PROPOSAL
EFFECTIVE THROUGH DECEMBER 31, 1998
A. MINIMUM FEE
Conversion through 12/31/96 - $18,000 per cusip per year
1/1/97 through 12/31/97 - $21,000 per cusip per year
1/1/98 through 12/31/98 - $24,000 per cusip per year
Note: Minimum applies unless charges included in Section B exceed
the minimum.
B. ACCOUNT MAINTENANCE AND PROCESSING FEES
Open Accounts - $12.00 per account per year
Manual Transaction - $2.00
Correspondence - $4.00
Shareholder Related Calls (inbound and outbound) - $2.00
C. FEDERAL FUNDS WIRES
Federal Funds Wires received or delivered - $6.00
D. OPTIONAL SERVICES
Asset Allocation - $2.40 per nucleus account per year
Asset Reallocation - $.25 per nucleus account per cycle
12b-1 Processing - $.20 per open and closed account per cycle
Trail Accounting Sub-System (TASS) - $1.00 per account per year
(in addition to 12b-1 fees)
Investor Facility - $2.40 per year per master account with
multiple accounts
*Sales and Management information System (PC based remote XXXXX)
- $1,500 per month for the relationship
*Computer/Technical Personnel:
Business Analyst/Tester:
Dedicated - $65,000 per year
On Request:
Senior Staff Support - $60 per hour
Staff Support - $40 per hour
Clerical Support - $30 per hour
Technical/Programming
Dedicated - $102,000 per year
On Request - $80 per hour
Technical/C Programming:
Dedicated - $130,000 per year
On Request - $105 per hour
Financial Intermediary Interface:
Automated:
First Four Funds - $17,000 per intermediary per
year
Each Additional Fund - $3,000 per intermediary
per
year
Manual/Partially Automated:
First Four Funds - $34,000 per intermediary per
year
Each Additional Fund - $6,000 per intermediary
per
year
Average Cost System:
$5,000 per year of history converted
$.25 per account per year
*Auto Response{TM} System - see Exhibit A
*NSCC - see Exhibit B
Escheatment Costs - as incurred
Conversion Costs - Out of pocket expenses including but not
limited to travel and accommodations, programming, training,
equipment installation, etc.
NOTES TO THE ABOVE FEE SCHEDULE
A. The above schedule does not include reimbursable expenses that
are incurred on the Fund's behalf. Examples of reimbursable
expenses include but are not limited to forms postage, mailing
services, telephone line/long distance charges, remote client
hardware, disaster recovery, proxy processing, magnetic tapes,
printing, microfilm/microfiche, ACH bank charges, NSCC charges,
etc. 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
through December 31, 1998 subject to an annual increase in an amount
not less than the annual percentage change in the Consumer Price Index
(CPI) of the Kansas City Metropolitan Area. Those items marked by an
"*" are subject to change with a 60 day notice. The minimum fee per
cusip is stepped up each succeeding year and therefore is not subject
to annual CPI adjustment.
D. This fee schedule will remain in effect as long as the nature of
the Fund remains institutional. If at any time during the duration of
this agreement it is determined that the Fund has become retail in
nature, a new fee schedule will be implemented. A key indicator will
be determined which would signal this change from institutional to
retail.
Fees Accepted By:
____________________________ ____________________________
DST Systems, Inc. Evaluation
Associates
Capital Markets,
Incorporated
____________________________ __________________________
Date Date
