AMENDMENT TO
AGENCY AGREEMENT
THIS AMENDMENT TO AGENCY AGREEMENT (this "Amendment") is entered into as of
the first day of April, 2009 (the "Effective Date") by and between ADVISORS'
INNER CIRCLE FUND, a business trust existing under the laws of the Commonwealth
of Massachusetts, having its principal place of business at one Xxxxxxx Xxxxxx
Xxxx, Xxxx, Xxxxxxxxxxxx 00000 (the "Trust") and DST SYSTEMS, INC., a
corporation existing under the laws of the State of Delaware, having its
principal place of business at 000 Xxxx 00(xx) Xxxxxx, 0(xx) Xxxxx, Xxxxxx Xxxx,
Xxxxxxxx 00000 ("DST").
WHEREAS, the Trust and DST entered into that certain Agency Agreement on
the 1(st) day of April, 2006 to be effective as of the 1(st) day of July, 2006
(the "Agreement").
WHEREAS, the Trust and DST wish to amend the terms of the Agreement as
outlined below.
NOW, THEREFORE, in consideration of the mutual promises, undertakings,
covenants and conditions set forth herein, the Trust and DST agree as follows:
1. AMENDMENT TO AGREEMENT. With effect as of the Effective Date, the
Agreement is hereby modified as follows:
(a) The Preamble to the Agreement on the first page is hereby deleted
and the following is inserted in lieu thereof:
"THIS AGREEMENT made as of the 1(st) day of April, 2006, by and
between the ADVISORS' INNER CIRCLE FUND, a business trust existing under the
laws of the Commonwealth of Massachusetts, having its principal place of
business at Xxx Xxxxxxx Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx 00000 (the "Trust") on
behalf of each separate series of the Trust (each a "Fund") and each separate
series of certain Funds (each a "Portfolio") maintained by a fund
complex/management company as described and evidenced on each Advisor Complex
Schedule attached hereto, and DST SYSTEMS, INC., a corporation existing under
the laws of the State of Delaware, having its principal place of business at
000 Xxxx 00(xx) Xxxxxx, 0(xx) Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("DST"):"
(b) A new section 4(H) is added as follows:
(H) DST and the Trust will execute a schedule (each, an "Advisor
Complex Schedule"), substantially in the form attached hereto as
Exhibit C, for each separate fund complex/management company
client of the Trust for whom the Trust retains DST to provide
services pursuant to this Agreement (each an "Advisor Complex").
Each Advisor Complex
Schedule will show (i) the name of the Advisor Complex, (ii) the
term for the Advisor Complex Schedule (which, unless otherwise
mutually agreed in writing, will be coterminous with the terms of
the relationship between the Trust and the Advisor Complex), and
(iii) the fees to be paid by the Trust to DST pursuant to Section
6 with respect to such Advisor Complex.
(c) Section 6(A) is hereby deleted in its entirety and the following is
inserted in lieu thereof:
In consideration for its services hereunder as Transfer Agent and
Dividend Disbursing Agent, the Trust will pay to DST from time to
time a reasonable compensation for all services rendered as
Agent, and also, all its reasonable billable expenses, charges,
counsel fees, and other disbursements ("Compensation and
Expenses") incurred in connection with the agency. Such
compensation shall be calculated with respect to each Advisor
Complex as set forth on each Advisor Complex Schedule or, if no
separate fee schedule is agreed in an Advisor Complex Schedule
with respect to a particular Advisor Complex, such fees set forth
Exhibit A attached hereto and incorporated herein by reference.
If the Trust has not paid such Compensation and Expenses to DST
within a reasonable time, DST may charge against any monies held
under this Agreement, the amount of any Compensation and/or
Expenses for which it shall be entitled to reimbursement under
this Agreement.
(d) A new Section 18(L) is added as follows:
(L) In connection with the enactment of the Red Flags
Regulations (the "Regulations") promulgated jointly by the
Office of the Comptroller of the Currency, Treasury (OCC); Board
of Governors of the Federal Reserve System (Board); Federal
Deposit Insurance Corporation (FDIC); Office of Thrift
Supervision, Treasury (OTS); National Credit Union
Administration (NCUA); and Federal Trade Commission (FTC or
Commission) implementing section 114 of the Fair and Accurate
Credit Transactions Act of 2003 (FACT Act) and final rules
implementing section 315 of the FACT Act
(1) DST shall assist the Trust to fulfill the Trusts'
responsibilities under certain provisions of the Regulations
that focus on certain business processes that represent key
activities of the transfer agent/service provider function,
as set forth in the DST identity theft program (the
"Identity Theft Program"), a current copy of which has
hitherto been made available to Trust. These business
processes are set forth in the Identity Theft Program. DST
reserves the right to make changes thereto as experience
suggests alternative and better ways to
perform the affected function. DST shall provide Trust with written notice of
any such changes thereto.
(2) DST shall: (1) perform the procedures set forth in the Identity
Theft Program, as amended by DST from time to time, which pertain to DST's
performance of those transfer agency services in accordance with the terms and
conditions set forth in this Agreement, (ii) implement and maintain internal
controls and procedures reasonably necessary to insure that DST's employees act
in accordance with the Identity Theft Program, and (iii) provide Trust with
written notice of any material changes made to the Identity Theft Program.
(3) Notwithstanding the foregoing, DST's obligations shall be solely
as are set forth in this Section 18(L) and in the Identity Theft Program and
any obligations under the Regulations that DST has not agreed to perform under
such Identity Theft Program or under this Agreement shall remain the sole
obligation of the Trust(s) or the Trust, as applicable.
(4) With respect to the Identity Theft Program, DST will permit duly
authorized governmental and self-regulatory examiners to make periodic
inspections of its operations as such would involve Trust and the Trusts to
obtain, INTER ALIA, information and records relating to DST's performance of
its obligations under the Identity Theft Program and to inspect DST's
operations for purposes of determining DST's compliance with the Identity Theft
Program. Any costs imposed by such examiners in connection with such
examination (other than fines or other penalties arising solely out of DST's
failure to fulfill its obligations under the Identity Theft Program) shall be
paid by Trust.
(e) Section 21 is hereby deleted in its entirety and the following is
inserted in lieu thereof:
21. TERMINATION OF AGREEMENT.
A. This Agreement shall be in effect from the date set forth at the beginning
of this Agreement through March 30, 2014 and thereafter shall automatically
renew for successive three (3) year terms (each such period, a "RENEWAL
TERM") unless terminated by any party giving written notice of non-renewal
at least six (6) months' prior to the last day of the then current term
(the date on which such notice is due shall be referred to as the
"Non-Renewal Notification Date") to each other party hereto; provided that
DST shall deliver a written reminder (the "Renewal Reminder") to the Trust
of the Non-Renewal Notification Date not more than 120 days and not less
than ninety (90) days prior to such date. In the event DST fails to provide
the Renewal Reminder within the prescribed period prior to the Non-Renewal
Notification Date and the Trust does not provide DST
with a notice of non-renewal, then the subsequent Renewal Term shall be
twelve (12) months, rather than three (3) years; provided, however, in the
event DST provides the Trust a Renewal Reminder not more than 120 days and
not less than ninety (90) days prior to the expiration of any such 12 month
Renewal Term, the subsequent Renewal Term (i.e., the Renewal Term effective
upon the expiration of the twelve (12) month Renewal Term), shall be for
thirty-six (36) months unless this Agreement is terminated by any party
giving written notice of non-renewal at least six (6) months' prior to the
last day of the then current term. Each Advisor Complex Schedule shall
automatically terminate upon termination of this Agreement in accordance
with this Section 21. In addition, either party may terminate this
Agreement or an Advisor Complex Schedule in the following manner and under
the following circumstances:
(i) WITH RESPECT TO A TERMINATION FOR BREACH UNDER SECTION 21.B. OF THIS
AGREEMENT: upon such date as is specified in a written notice given by the
terminating party in the event of a material breach of this Agreement by
the other party, provided the terminating party (A) gives the breaching
party such notice of termination within forty-five days after the
terminating party becomes aware of the occurrence of such material breach
and (B) has notified the other party of such material breach at least
thirty (30) days prior to the specified date of termination. The breaching
party shall have thirty (30) days after receipt of the notice of
termination to cure the breach or, if the breach is not capable of remedy
within thirty (30) days, to commence actions, which if appropriately
pursued would result in the curing of such breach and to thereafter
appropriately pursue such actions. Where the material breach is not
remedied or an appropriate remedy is not undertaken and pursued as
previously set forth, DST will be due fees from the Trust at the regular
rates as set forth in the then applicable Fee Schedule for an additional
three (3) month period. At the end of such three (3) month period, or such
other time as mutually agreed to in writing by the parties hereto, this
Agreement shall terminate and the Trust's data shall be deconverted from
TA2000 to the new recordkeeping and processing system chosen by the Trust.
If the material breach is remedied or an appropriate remedy is undertaken
and pursued as previously set forth within such thirty (30) day cure
period, the Agreement shall continue for the remainder of the then current
Term and any future Terms to which the parties have committed at such time.
(ii) WITH RESPECT TO A TERMINATION OF AN ADVISOR COMPLEX SCHEDULE: An
Advisor Complex Schedule may be terminated effective as of the expiration
of the then current term specified on the Advisor Complex Schedule by
either party giving to the other party the amount of prior written notice
prior to the such expiration specified in the applicable Advisor Complex
Schedule, 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. For clarification, a
termination of any Advisor Complex Schedule shall have no effect on any
other Advisor Complex's applicable Advisor Complex Schedule and such other
Advisor Complex Schedules will remain active on TA2000 under the Trust and
this Agreement shall remain in full force and effect for those other
Advisor
Complex's who remain active on TA2000. In event of a termination under this
subsection, no termination fee shall be owed by the terminating party to
the other party; provided, however, the Trust will be responsible for all
deconversion costs with respect to the deconversion of the applicable
Advisor Complex.
(iii) WITH RESPECT TO A TERMINATION FOR BREACH UNDER SECTION 21.C. OF THIS
AGREEMENT: upon such date as is specified in a written notice given by the
terminating party in the event of a material breach of an Advisor Complex
Schedule or a material breach of this Agreement by the other party,
provided the terminating party (A) gives the breaching party such notice of
termination within forty-five days after the terminating party becomes
aware of the occurrence of such material breach and (B) has notified the
other party of such material breach at least thirty (30) days prior to the
specified date of termination, The breaching party shall have thirty (30)
days after receipt of the notice of termination to cure the breach or, if
the breach is not capable of remedy within thirty (30) days, to commence
actions, which if appropriately pursued would result in the curing of such
breach and to thereafter appropriately pursue such actions. Where the
material breach is not remedied or an appropriate remedy is not undertaken
and pursued as previously set forth, DST will be due fees from the Trust at
the regular rates as set forth in the then applicable Fee Schedule for an
additional three (3) month period. At the end of such three (3) month
period, or such other time as mutually agreed to in writing by the parties
hereto, the applicable Advisor Complex Schedule shall terminate and the
applicable Advisor Complex's data shall be deconverted from TA2000 to the
new recordkeeping and processing system chosen by the Advisor Complex,
provided, however, a termination of any Advisor Complex Schedule pursuant
to this Section shall have no effect on any other Advisor Complex Schedule
and such other Advisor Complex Schedules will remain active on TA2000 under
the Trust and this Agreement shall remain in full force and effect for
those other Advisor Complexes who remain active on TA2000. If the material
breach is remedied or an appropriate remedy is undertaken and pursued as
previously set forth within such thirty (30) day cure period, the
applicable Advisor Complex Schedule shall continue for the remainder of the
then current Term and any future Terms to which the parties are committed
as specified on the Advisor Complex Schedule.
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. Each party, in addition to any other rights and remedies, shall have the
right to terminate an Advisor Complex Schedule forthwith upon the
occurrence at any
time of failure by the other party or its assigns to perform its duties in
accordance with the Agreement or such Advisor Complex Schedule, which
failure materially adversely affects the business operations of the first
party or the applicable Advisor Complex and which failure continues for
thirty (30) days after receipt of written notice from the first party.
D. In the event of the full termination of this Agreement or a termination of
an Advisor Complex Schedule, the Trust will promptly pay DST all amounts
due to DST under this Agreement and DST will use its reasonable efforts, in
accordance with acceptable industry standards, to transfer the records of
the Trust (or deconverting Advisor Complex, if a termination of a Advisor
Complex Schedule, but not the full termination of the Agreement) to the
designated successor transfer agent (or a place designated by the Trust in
case of a liquidating termination) within a reasonable time period, to
provide reasonable assistance to the deconverting Advisor Complex 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.
E. If, prior to converting from the TA2000 System, a Fund or Portfolio
thereof is unable to obtain a commitment from the new transfer agent that
the new transfer agent will perform year end reporting (tax or otherwise)
for the entire year and mail and file all reports, including by way of
example and not limitation, reports or returns of Form 1099, 5498,m 945,
1042 and 10425, annual account valuations for retirement accounts and year
end statements for all accounts and any other reports required to be made
by state governments or the federal government or regulatory agencies (the
"Returns") (i) DST shall perform year end reporting as instructed by the
Fund for the portion of the year DST served as transfer agent and (ii) DST
shall be paid therefore a monthly per CUSIP fee (in addition to any
applicable Closed CUSIP Fee) through the end of the last month during which
the last Return or form is filed (at its standard rate and fees for
personnel then in effect at that time). The Fund will cause the new
transfer agent to timely advise DST of all changes to the shareholder
records effecting such reporting by DST (including but not limited to all
account maintenance and any "as of" processing) until all DST reporting
obligations cease; and DST shall have no further obligations to the Fund,
and the Trust hereby indemnifies, or shall cause the Fund to indemnify. DST
and holds, or shall cause the Fund to hold, DST harmless against any
Adverse Consequences arising out of or resulting from the failure of the
new transfer agent to timely and properly advise DST as required by this
Agreement or which could have been avoided if the new transfer agent had
timely and properly advised DST thereof or which occur after the Trust or
the Fund
ceases to pay DST to maintain the Fund data on the XXXX System and DST
purges the data of the Fund from the TA2000 System.
F. In the event of a termination by a Fund or Portfolio which is liquidating
and distributing the proceeds thereof to such shareholders and thereafter
closing, such Fund or Portfolio shall use reasonable efforts to provide DST
at least three (3) months prior written notice of such liquidation,
distribution and closing. In such event, DST may charge reasonable fees as
set forth in the then existing Fee Schedule and reasonable fees for account
maintenance and processing and for all expenses incurred on the terminated
Liquidating Fund's, Portfolio's or Class' behalf, for the time period
required to complete the liquidation and/or maintain the Liquidating Fund,
Portfolio or Class on DST's TA2000 System for the provision of services,
including services in connection with Internal Revenue Service reporting or
other required regulatory reporting. All such fees shall be reviewable by
the Trust for reasonableness and shall be paid monthly by the Trust until
the liquidation is complete and the liquidating Fund or Portfolio is purged
from the TA2000 System and DST's services are no longer being utilized.
(f) A new Section 22(D) is added as follows:
Throughout the Term, DST shall comply with Exhibit D (DST Information
Protection Program), which is made a part of this Agreement and applies to
the Transfer Agency. The policies and procedures specified in Exhibit D
(DST Information Protection Program) are subject to change at any time
provided that the protections afforded thereby will not be diminished in
comparison with those provided by DST to the Trust prior to the execution
of this Agreement. DST will be reasonably available to meet with and
provide reasonable assurances to the Trust concerning its data security
procedures.
(g) Exhibit A is hereby amended to delete the paragraph under the heading,
"2. Fee Increases" under the heading "NOTES TO THE ABOVE FEE SCHEDULE" in
its entirety and replace it as follows:
2. FEE INCREASES
The fees payable under each Advisor Complex Schedule shall increase annually,
effective as of each anniversary of the Effective Date of such Advisor Complex
Schedule, by an amount not to exceed the percentage increase, if any, in the
Consumer Price Index for all Urban Consumers (CPI-U) in the Kansas City,
Missouri-Kansas Standard Metropolitan Statistical Area, All Items, Base
1982-1984=100, as reported by the Bureau of Labor Statistics, since the last
anniversary date; provided, however, if the percentage increase in the CPI-U
since the last anniversary date exceeds five percent (5%) the fee increase
shall be limited to five percent (5%) and the amount by which the percentage
increase in the CPI-U exceeds five percent (5%) may be charged in later years,
provided in no year will the fee increase exceed five percent (5%). If the
Bureau of Labor Statistics ceases
to publish such Consumer Price Index for all Urban Consumers, DST shall in good
faith select an alternate adjustment index.
(h) A new Exhibit C (Advisor Complex Schedule) is hereby added to the
Agreement as set forth in Attachment I hereto.
2. EFFECT ON AGREEMENT. As of the Effective Date, this Amendment
shall be effective to amend the Agreement and to the extent of any conflict
between the Agreement and this Amendment, this Amendment supercedes and
replaces the Agreement.
3. EXECUTION IN COUNTERPARTS/FACSIMILE TRANSMISSION. This Amendment
may be executed in separate counterparts, each of which will be deemed to be an
original and all of which, collectively, will be deemed to constitute one and
the same Amendment. This Amendment may also be signed by exchanging facsimile
copies of this Amendment, duly executed, in which event the parties hereto will
promptly thereafter exchange original counterpart signed copies hereof.
4. TERMINOLOGY. The words "include", "includes" and "including" will
be deemed to be followed by the phrase "without limitation". The words
"herein", "hereof", "hereunder" and similar terms will refer to this Amendment
unless the context requires otherwise.
5. AGREEMENT IN FULL FORCE AND EFFECT. Except as specifically
modified by this Second Amendment, the terms and conditions of the Agreement
shall remain in full force and effect, and the Agreement, as amended by this
Amendment, and all of its terms, including, but not limited to any warranties
and representations set forth therein, if any, are hereby ratified and
confirmed by the Trust and DST as of the Effective Date.
6. CAPITALIZED TERMS. All capitalized terms used but not defined in
this Amendment will be deemed to be defined as set forth in the Agreement.
7. AUTHORIZATION. Each party hereby represents and warrants to the
other that the person or entity signing this Amendment on behalf of such party
is duly authorized to execute and deliver this Amendment and to legally bind
the party on whose behalf this Amendment is signed to all of the terms,
covenants and conditions contained in this Amendment.
8. GOVERNING LAW. This Amendment shall be construed according to and
governed by the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties have caused this Second Amendment to
be executed by their duly authorized representatives as of the date first
written above.
ADVISORS' INNER CIRCLE FUND
By: /s/ Xxxx Xxxxxxxxx
------------------
Printed Name: Xxxx Xxxxxxxxx
Title: President
DST SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Printed Name: Xxxxxx X. Xxxxxxx
Title: Vice President
ATTACHMENT I
EXHIBIT C TO THE AGENCY AGREEMENT BETWEEN
DST AND ADVISORS' INNER CIRCLE FUND
PAGE 1 OF 2
ADVISOR COMPLEX SCHEDULE
This ADVISOR COMPLEX SCHEDULE (this "Schedule") to the Agreement (as amended,
the "Agreement") originally made as of the 1(s)` day of April, 2006, by and
between the ADVISOR'S INNER CIRCLE FUND, a business trust existing under the
laws of the Commonwealth of Massachusetts, having its principal place of
business at Xxx Xxxxxxx Xxxxxx Xxxx, Xxxx, Xxxxxxxxxxxx 00000 (the "Trust") and
DST SYSTEMS, INC., a corporation existing under the laws of the State of
Delaware, having its principal place of business at 000 Xxxx 00(xx) Xxxxxx,
0(xx) Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("DST") is entered into by and between
DST and the Trust as of the ___ day of _______ , 20_"
1. ADVISOR COMPLEX. Subject to the Terms and conditions contained in the
Agreement, DST shall provide the Services specified therein to the Trust on
behalf of ___________
2. TERM. This Advisor Complex Schedule shall continue until ____________________
3. REQUIRED NOTICE PRIOR TO EXPIRATION. The amount of prior written notice
required pursuant to Section 21(a)(ii) is ______________
4. FEES. In consideration for its services to the Trust as Transfer Agent and
Dividend Disbursing Agent on behalf of the Advisor Complex specified in this
Advisor Complex Schedule, the Trust will pay to DST from time to time a
reasonable compensation for all services rendered as Agent, and also, all its
reasonable billable expenses, charges, counsel fees, and other disbursements
("Compensation and Expenses") incurred in connection with the agency. Such
compensation is set forth on Exhibit A attached hereto and incorporated herein
by reference.
5. MISCELLANEOUS. This Advisor Complex may be executed in one or more
counterparts, each of which shall be deemed an original and all or which
together shall constitute one and the same Advisor Complex Schedule.
EXHIBIT C TO THE AGENCY AGREEMENT BETWEEN
DST AND ADVISORS' INNER CIRCLE FUND
PAGE 2 OF 2
IN WITNESS WHEREOF, each party hereto has caused the Advisor Complex
Schedule to be executed on its behalf as of the date first above written.
ADVISORS INNER CIRCLE DST SYSTEMS, INC.
FUND
By:_______________________ By:_______________________
Name:_____________________ Name:_____________________
Title:____________________ Title:____________________
Date:_____________________ Date:_____________________
EXHIBIT D TO THE AGENCY AGREEMENT
BETWEEN DST AND ADVISORS' INNER CIRCLE FUND
PAGE 1 OF 1
DST INFORMATION PROTECTION PROGRAM
DST has a formal Information Protection Program (IPP) that was established and
exists as a working roadmap for DST security. DST does Risk Assessments,
Security Assessments, Security Awareness for the corporation as a whole,
targeted training for specific applicable groups, and other security related
activities. DST has a program and process pursuant to which DST reviews its
technology and architecture and security requirements and needs.
Integral to the function of the IPP are the Information Protection Committee
(IPC) and the Information Protection Board (IPB). The IPC convenes periodically
during the year and is responsible for 1) identifying, measuring and rating
risks, 2) approving policies, standards, and practices, and 3) assessing and
reporting progress towards compliance. The IPB convenes periodically during the
year and is responsible for providing executive level oversight and guidance to
the Information Protection Program.
A component of the IPP is DST's Policies, Control Standards, and Technology
Baselines. DST's Security Management Console (SMC) is an on-line system DST
obtained from Xxxxxx Technologies that provides Security Policies, Control
Standards, and Technical Baselines, oriented to the financial industry. The
policies and standards incorporated in the SMC are designed to be consistent
and evolve with IS027001, HIPAA, Data Protection Act of 1998, IS Forum
Standards, FFIEC IS Booklet, and MAS to the extent DST deems them applicable to
its business.
DST has in place security log and activity monitoring, on a 24x7x365 basis. DST
has an Intrusion Detection System (IDS) implemented to keep us informed on
network activity. DST has an incident response process to deal with
unexplainable logs and activities that are observed. This process is reviewed
for validity and effectiveness for the purpose. DST uses third party security
reviews to also provide the information to support DST's security efforts.
All of the foregoing policies and procedures are subject to regular review and
modification without notice, it being agreed that (i) no change to the
foregoing shall diminish the over-all level of security and protections
afforded to Trust Data as maintained on TA2000 and the DST Facilities and (ii)
DST hereby undertakes that it shall at all times have in place data security
policies and standards that are reasonably designed to be consistent and evolve
with IS027001, HIPAA, Data Protection Act of 1998, IS Forum Standards, FFIEC IS
Booklet, and MAS to the extent DST reasonably deems them applicable to its
business.
