AGENCY AGREEMENT
THIS AGREEMENT made the 5th day of February, 2004, by and between
Advisors' Inner Circle Fund (on behalf of the portfolios listed in Exhibit D) a
corporation existing under the laws of the Commonwealth of Massachusetts having
its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ (the "Fund"), and DST SYSTEMS, INC., a corporation existing under the laws
of the State of Delaware, having its principal place of business at ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("DST"):
WITNESSETH:
WHEREAS, the Fund desires to appoint DST as Transfer Agent and Dividend
Disbursing Agent, and DST desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. DOCUMENTS TO BE FILED WITH APPOINTMENT.
In connection with the appointment of DST as Transfer Agent and
Dividend Disbursing Agent for the Fund, there will be filed with DST
the following documents:
A. A certified copy of the resolutions of the Board of Directors
of the Fund (which term when used herein shall include any
Board of Trustees, or other governing body of the Fund,
however styled) appointing DST as Transfer Agent and Dividend
Disbursing Agent, approving the form of this Agreement, and
designating certain persons to sign stock certificates, if
any, and give written instructions and requests on behalf of
the Fund;
B. A certified copy of the Articles of Incorporation (which term
as used herein shall include, where relevant, the Declaration
of Trust, or other basic instrument establishing the existence
and nature of the Fund) of the Fund and all amendments
thereto;
C. A certified copy of the Bylaws of the Fund;
D. Copies of Registration Statements and amendments thereto,
filed with the Securities and Exchange Commission;
E. Specimens of all forms of outstanding stock certificates, in
the forms approved by the Board of Directors of the Fund, with
a certificate of the Secretary of the Fund, as to such
approval;
F. Specimens of the signatures of the officers of the Fund
authorized to sign stock certificates and individuals
authorized to sign written instructions and requests;
G. An opinion of counsel for the Fund, as such opinion(s) have
been filed with the Fund's Registration Statement or notices
required under Rule 24f-2 under the Investment Company Act of
1940 (the "1940 Act"), with respect to:
(1) The Fund's organization and existence under the laws of
its state of organization, and
(2) That all issued shares are validly issued, fully paid
and nonassessable.
2. CERTAIN REPRESENTATIONS AND WARRANTIES OF DST.
DST represents and warrants to the Fund that:
A. It is a corporation duly organized and existing and in good
standing under the laws of Delaware.
B. It is duly qualified to carry on its business in the State of
Missouri.
C. It is empowered under applicable laws and by its Articles of
Incorporation and Bylaws to enter into and perform the
services contemplated in this Agreement.
D. It is registered as a transfer agent to the extent required
under the Securities Exchange Act of 1934 (the "1934 Act").
E. All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
F. It has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
G. It is in compliance with Securities and Exchange Commission
("SEC") regulations and is not subject to restrictions under
Rule 17Ad.
H. Copies of DST's Rule 17Ad-13 reports will be provided to the
Fund annually as and to the extent required under Rule 17Ad-13
under the 1934 Act.
I. Its fidelity bonding and minimum capital meet the transfer
agency requirements of the New York Stock Exchange and the
American Stock Exchange.
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3. CERTAIN REPRESENTATIONS AND WARRANTIES OF THE FUND.
The Fund represents and warrants to DST that:
A. It is a corporation duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
B. It is an open-end management investment company registered
under the 1940 Act, as amended, the portfolios of which may be
diversified or non-diversified.
C. A registration statement under the Securities Act of 1933 has
been filed and will be effective with respect to all shares of
the Fund being offered for sale.
D. All requisite steps have been and will continue to be taken to
register the Fund's shares for sale in all applicable states
and such registration will be effective at all times shares
are offered for sale in such state.
E. The Fund is empowered under applicable laws and by its charter
and Bylaws to enter into and perform this Agreement.
4. SCOPE OF APPOINTMENT.
A. Subject to the conditions set forth in this Agreement, the
Fund hereby appoints DST as Transfer Agent and Dividend
Disbursing Agent.
B. DST hereby accepts such appointment and agrees that it will
act as the Fund's Transfer Agent and Dividend Disbursing
Agent. DST agrees that it will also act as agent in connection
with the Fund's periodic withdrawal payment accounts and other
open accounts or similar plans for shareholders, if any.
C. The Fund agrees to use its reasonable efforts to deliver to
DST in Kansas City, Missouri, as soon as they are available,
all of its shareholder account records.
D. DST, utilizing TA2000(R), DST's computerized data processing
system for securityholder accounting (the "TA2000(R)System"),
will perform the following services as transfer and dividend
disbursing agent for the Fund, and as agent of the Fund for
shareholder accounts thereof, in a timely manner: issuing
(including countersigning), transferring and canceling share
certificates, if any; maintaining all shareholder accounts;
providing transaction journals; as requested by the Fund and
subject to payment by the Fund of an additional fee, preparing
shareholder meeting lists for use in connection with any
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annual or special meeting and arrange for an affiliate to
print, mail and receive back proxies and to certify the
shareholder votes of the Fund of any portfolios thereof;
mailing shareholder reports and prospectuses; withholding, as
required by federal law, taxes on shareholder accounts,
disbursing income dividends and capital gains distributions to
shareholders, preparing, filing and mailing U.S. Treasury
Department Forms 1099, 1042, and 1042S and performing and
paying backup withholding as required for all shareholders;
preparing and mailing confirmation forms to shareholders and
dealers, as instructed, for all purchases and liquidations of
shares of the Fund and other confirmable transactions in
shareholders' accounts; recording reinvestment of dividends
and distributions in shares of the Fund; providing or making
available on-line daily and monthly reports as provided by the
TA2000 System and as requested by the Fund or its management
company; maintaining those records necessary to carry out
DST's duties hereunder, including all information reasonably
required by the Fund to account for all transactions in the
Fund shares, calculating the appropriate sales charge with
respect to each purchase of the Fund shares as set forth in
the prospectus for the Fund, determining the portion of each
sales charge payable to the dealer participating in a sale in
accordance with schedules delivered to DST by the Fund's
principal underwriter or distributor (hereinafter "principal
underwriter") from time to time, disbursing dealer commissions
collected to such dealers, determining the portion of each
sales charge payable to such principal underwriter and
disbursing such commissions to the principal underwriter;
receiving correspondence pertaining to any former, existing or
new shareholder account, processing such correspondence for
proper recordkeeping, and responding promptly to shareholder
correspondence; mailing to dealers confirmations of wire order
trades; mailing copies of shareholder statements to
shareholders and registered representatives of dealers in
accordance with the Fund's instructions; interfacing with,
accepting and effectuating order for transactions and
registration and maintenance information, all on an automated
basis, from, and providing advices to the Fund's custodian
bank and to the Fund's settlement bank in connection with the
settling of such transactions, with, the National Securities
Clearing Corporation ("NSCC") pertaining to NSCC's Fund/SERV
and Networking programs; and processing, generally on the date
of receipt, purchases or redemptions or instructions to settle
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any mail or wire order purchases or redemptions received in
proper order as set forth in the prospectus, rejecting
promptly any requests not received in proper order (as defined
by the Fund or its agents), and causing exchanges of shares to
be executed in accordance with the Fund's instructions and
prospectus and the general exchange privilege applicable.
E. At the request of an Authorized Person, DST shall use
reasonable efforts to provide the services set forth in
Section 4.D. in connection with transactions (i) on behalf of
retirement plans and participants in retirement plans and
transactions ordered by brokers as part of a "no transaction
fee" program ("NTF"), the processing of which transactions
require DST to use methods and procedures other than those
usually employed by DST to perform shareholder servicing agent
services, (ii) involving the provision of information to DST
after the commencement of the nightly processing cycle of the
TA2000 System or (iii) which require more manual intervention
by DST, either in the entry of data or in the modification or
amendment of reports generated by the TA2000 System than is
usually required by non-retirement plan, non-NTF and
pre-nightly transactions, (the "Exception Services").
F. DST shall use reasonable efforts to provide, reasonably
promptly under the circumstances, the same transfer agent
services with respect to any new, additional functions or
features or any changes or improvements to existing functions
or features as provided for in the Fund's instructions,
prospectus or application as amended from time to time, for
the Fund provided (i) DST is advised in advance by the Fund of
any changes therein and (ii) the TA2000 System and the mode of
operations utilized by DST as then constituted supports such
additional functions and features. If any addition to,
improvement of or change in the features and functions
currently provided by the TA2000 System or the operations as
requested by the Fund requires an enhancement or modification
to the TA2000 System or to operations as then conducted by
DST, DST shall not be liable therefore until such modification
or enhancement is installed on the TA2000 System or new mode
of operation is instituted. If any new, additional function or
feature or change or improvement to existing functions or
features or new service or mode of operation measurably
increases DST's cost of performing the services required
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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.
G. The Fund shall have the right to add new series to the
TA2000 System upon at least thirty (30) days' prior written
notice to DST provided that the requirements of the new series
are generally consistent with services then being provided by
DST under this Agreement. Rates or charges for additional
series shall be as set forth in Exhibit A, as hereinafter
defined, for the remainder of the contract term except as such
series use functions, features or characteristics for which
DST has imposed an additional charge as part of its standard
pricing schedule. In the latter event, rates and charges shall
be in accordance with DST's then-standard pricing schedule.
5. LIMIT OF AUTHORITY.
Unless otherwise expressly limited by the resolution of appointment or
by subsequent action by the Fund, the appointment of DST as Transfer
Agent will be construed to cover the full amount of authorized stock of
the class or classes for which DST is appointed as the same will, from
time to time, be constituted, and any subsequent increases in such
authorized amount.
In case of such increase the Fund will file with DST:
A. If the appointment of DST was theretofore expressly limited, a
certified copy of a resolution of the Board of Directors of
the Fund increasing the authority of DST;
B. A certified copy of the amendment to the Articles of
Incorporation of the Fund authorizing the increase of stock;
C. A certified copy of the order or consent of each governmental
or regulatory authority required by law to consent to the
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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 the Fund, as such opinion(s) have been
filed with the Fund's Registration Statement or notices
required under Rule 24f-2 under the 1940 Act, stating:
(1) The status of the additional shares of stock of the Fund
under the Securities Act of 1933, as amended, and any
other applicable federal or state statute; and
(2) That the additional shares are validly issued, fully paid
and nonassessable.
6. COMPENSATION AND EXPENSES.
A. In consideration for its services hereunder as Transfer Agent
and Dividend Disbursing Agent, the Fund will pay to DST from
time to time a reasonable compensation for all services
rendered as Agent, and also, all its reasonable billable
expenses, charges, counsel fees, and other disbursements
("Compensation and Expenses") incurred in connection with the
agency. Such compensation is set forth in a separate schedule
to be agreed to by the Fund and DST, a copy of which is
attached hereto as Exhibit A. If the Fund has not paid such
Compensation and Expenses to DST within a reasonable time, DST
may charge against any monies held under this Agreement, the
amount of any Compensation and/or Expenses for which it shall
be entitled to reimbursement under this Agreement.
B. The Fund also agrees promptly to reimburse DST for all
reasonable billable expenses or disbursements incurred by DST
in connection with the performance of services under this
Agreement including, but not limited to, expenses for postage,
express delivery services, freight charges, envelopes, checks,
drafts, forms (continuous or otherwise), specially requested
reports and statements, telephone calls, telegraphs,
stationery supplies, counsel fees, outside printing and
mailing firms (including DST Output, Inc.), magnetic tapes,
reels or cartridges (if sent to the Fund or to a third party
7
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 the Fund
and its agents, on one hand, and DST on the other, proxy
soliciting, processing and/or tabulating costs, second-site
backup computer facility, transmission of statement data for
remote printing or processing, and National Securities
Clearing Corporation ("NSCC") transaction fees to the extent
any of the foregoing are paid by DST. The Fund agrees to pay
postage expenses at least one day in advance if so requested.
In addition, any other expenses incurred by DST at the request
or with the consent of the Fund will be promptly reimbursed by
the Fund.
C. Amounts due hereunder shall be due and paid on or before the
thirtieth (30th) business day after receipt of the statement
therefor by the Fund (the "Due Date"). The Fund is aware that
its failure to pay all amounts in a timely fashion so that
they will be received by DST on or before the Due Date will
give rise to costs to DST not contemplated by this Agreement,
including but not limited to carrying, processing and
accounting charges. Accordingly, subject to Section 6.D.
hereof, in the event that any amounts due hereunder are not
received by DST by the Due Date, the Fund shall pay a late
charge equal to the lesser of the maximum amount permitted by
applicable law or the monthly rate of one and one-half percent
(1 1/2%) times the amount overdue, times the number of whole
or partial months from the Due Date up to and including the
day on which payment is received by DST. The parties hereby
agree that such late charge represents a fair and reasonable
computation of the costs incurred by reason of late payment or
payment of amounts not properly due. Acceptance of such late
charge shall in no event constitute a waiver of the Fund's or
DST's default or prevent the non-defaulting party from
exercising any other rights and remedies available to it.
D. In the event that any charges are disputed, the Fund shall, on
or before the Due Date, pay all undisputed amounts due
hereunder and notify DST in writing of any disputed charges
for billable expenses which it is disputing in good faith.
Payment for such disputed charges shall be due on or before
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the close of the fifth (5th) business day after the day on
which DST provides to the Fund documentation which an
objective observer would agree reasonably supports the
disputed charges (the "Revised Due Date"). Late charges shall
not begin to accrue as to charges disputed in good faith until
the first business day after the Revised Due Date.
E. The fees and charges set forth on Exhibit A shall increase or
may be increased as follows:
(1) On the first day of each new term, but only in
accordance with the "Fee Increases" provision in
Exhibit A;
(2) DST may increase the fees and charges set forth on
Exhibit A upon at least ninety (90) days prior
written notice, if changes in existing laws, rules or
regulations: (i) require substantial system
modifications or (ii) materially increase cost of
performance hereunder; and
(3) Upon at least ninety (90) days prior written notice,
DST may impose a reasonable charge for additional
features of TA2000 used by the Fund which features
are not consistent with the Fund's current processing
requirements.
If DST notifies the Fund of an increase in fees or charges
pursuant to subparagraph (2) of this Section 6.E., the parties
shall confer, diligently and in good faith and agree upon a
new fee to cover the amount necessary, but not more than such
amount, to reimburse DST for the Fund's aliquot portion of the
cost of developing the new software to comply with regulatory
charges and for the increased cost of operation.
If DST notifies the Fund of an increase in fees or charges
under subparagraph (3) of this Section 6.E., the parties shall
confer, diligently and in good faith, and agree upon a new fee
to cover such new fund feature.
7. OPERATION OF DST SYSTEM.
In connection with the performance of its services under this
Agreement, DST is responsible for such items as:
A. That entries in DST's records, and in the Fund's records on
the TA2000 System created by DST, accurately reflect the
orders, instructions, and other information received by DST
9
from the Fund, the Fund's distributor, manager or principal
underwriter, the Fund's investment adviser, or the Fund's
administrator (each an "Authorized Person"), broker-dealers
and/or shareholders;
B. That shareholder lists, shareholder account verifications,
confirmations and other shareholder account information to be
produced from its records or data be available and accurately
reflect the data in the Fund's records on the TA2000 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 System;
D. That redemption transactions and payments be effected timely,
under normal circumstances on the day of receipt, and
accurately in accordance with redemption instructions received
by DST from Authorized Persons, broker-dealers or shareholders
and the data in the Fund's records on the TA2000 System;
E. The deposit daily in the Fund's appropriate 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 automatically assume one
hundred percent (100%) responsibility for losses resulting
from "as ofs" due to clerical errors or misinterpretations of
shareholder instructions, but DST will discuss with the Fund
DST's accepting liability for an "as of" on a case-by-case
basis and shall accept financial responsibility for a
particular situation resulting in a financial loss to the Fund
to the extent that (A) such loss is "material," as hereinafter
defined, and (B) under the particular facts at issue, such
loss is attributable to DST's lack of good faith, negligence
or willful misconduct. A loss is "material" for purposes of
this Section 7.F. when it results in a pricing error on a
given day which is (i) greater than a negligible amount per
shareholder, (ii) equals or exceeds one ($.01) full cent per
share times the number of shares outstanding or (iii) equals
or exceeds the product of one-half of one percent (_%) times
Fund's Net Asset Value per share times the number of shares
outstanding (or, in case of (ii) or (iii), such other amounts
as may be adopted by applicable accounting or regulatory
authorities from time to time). DST's responsibility to
contribute to the settlement of a loss will commence with that
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portion of the loss over $0.01 per share calculated on the
basis of the total value of all shares owned by the affected
portfolio (i.e., on the basis of the value of the shares of
the total portfolio, including all classes of that portfolio,
not just those of the affected class);
G. The requiring of proper forms of instructions, signatures and
signature guarantees1 and any necessary documents supporting
the opening of shareholder accounts, transfers, redemptions
and other shareholder account transactions, all in conformance
with DST's present procedures as set forth in its Legal
Manual, Third Party Check Procedures, Checkwriting Draft
Procedures, and Signature Guarantee Procedures (collectively
the "Procedures") with such changes or deviations therefrom as
may be from time to time required or approved by the Fund, its
investment adviser or principal underwriter, or its or DST's
counsel and the rejection of orders or instructions not in
good order in accordance with the applicable prospectus or the
Procedures;
H. The maintenance of customary records in connection with its
agency, and particularly those records required to be
maintained pursuant to subparagraph (2)(iv) of paragraph (b)
of Rule 31a-1 under the Investment Company Act of 1940, if
any; and
I. The maintenance of a current, duplicate set of the Fund's
essential records at a secure separate location, in a form
available and usable forthwith in the event of any breakdown
or disaster disrupting its main operation.
8. INDEMNIFICATION.
A. DST shall not be responsible for, and the Fund shall on behalf
of the applicable Portfolio indemnify and hold DST harmless
from and against, any and all losses, damages, costs, charges,
counsel fees, payments, expenses and liability ("Adverse
Consequences") arising out of or attributable to:
---------------------------
1 DST shall ascertain that what reasonably purports to be an appropriate
signature guarantee is present if a signature guarantee is required, but DST
shall have no responsibility for verifying the authenticity thereof or the
authority of the person executing the signature guarantee.
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(1) All actions of DST or its agents or subcontractors
required to be taken pursuant to this Agreement,
provided that such actions are taken in good faith
and without negligence or willful misconduct;
(2) The Fund's lack of good faith, negligence or willful
misconduct which arise out of the breach of any
representation or warranty of the Fund hereunder;
(3) The reliance on or use by DST or its agents or
subcontractors of information, records, documents or
services which (i) are received by DST or its agents
or subcontractors, and (ii) have been prepared,
maintained or performed by the Fund or any other
person or firm on behalf of the Fund including but
not limited to any previous transfer agent or
registrar;
(4) The reliance on, or the carrying out by DST or its
agents or subcontractors of any instructions or
requests of the Fund on behalf of the applicable
Portfolio;
(5) The offer or sale of shares of the Fund or any
applicable Portfolio in violation of any requirement
under the federal securities laws or regulations or
the securities laws or regulations of any state
relating to the registration, the sale, or the manner
of sale of such shares or in violation of any stop
order or other determination or ruling by any federal
agency or any state with respect to the offer, the
sale or the manner of sale of such shares in such
state;
(6) The negotiation and processing by DST and the
applicable bank on which such check or draft is drawn
of checks not made payable to the order of DST, the
Fund, the Fund's management company, transfer agent
or distributor or the retirement account custodian or
trustee for a plan account investing in shares, which
checks are tendered to DST for the purchase of shares
(i.e., checks made payable to prospective or existing
Shareholders, such checks are commonly known as
"third party checks"); and
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(7) DST's performance of Exception Services except where
DST acted or omitted to act in bad faith, with
reckless disregard of its obligations or with gross
negligence.
B. At any time DST may apply to any officer of the Fund for
instructions, and may consult with legal counsel with respect
to any matter arising in connection with the services to be
performed by DST under this Agreement, and DST and its agents
or subcontractors shall not be liable and shall be indemnified
by the Fund on behalf of the applicable Portfolio for any
action taken or omitted by it in reliance upon such
instructions or upon the opinion of such counsel. DST, its
agents and subcontractors shall be protected and indemnified
in acting upon any paper or document furnished by or on behalf
of the Fund, reasonably believed to be genuine and to have
been signed by the proper person or persons, or upon any
instruction, information, data, records or documents provided
DST or its agents or subcontractors by machine readable input,
telex, CRT data entry or other similar means authorized by the
Fund, and shall not be held to have notice of any change of
authority of any person, until receipt of written notice
thereof from the Fund. DST, its agents and subcontractors
shall also be protected and indemnified in recognizing stock
certificates which are reasonably believed to bear the proper
manual or facsimile signatures of the officers of the Fund,
and the proper countersignature of any former transfer agent
or former registrar, or of a co-transfer agent or
co-registrar.
C. In order that the indemnification provisions contained in this
Section 8 shall apply, upon the assertion of a claim for which
the Fund may be required to indemnify DST, DST shall promptly
notify the Fund of such assertion, and shall keep the Fund
advised with respect to all developments concerning such
claim. The Fund shall have the option to participate with DST
in the defense of such claim or to defend against said claim
in its own name or in the name of DST. DST shall in no case
confess any claim or make any compromise in any case in which
the Fund may be required to indemnify DST except with the
Fund's prior written consent.
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D. Standard of Care: DST shall at all times act in good faith and
agrees to use its best efforts within reasonable limits to
insure the accuracy of all services performed under this
Agreement, but assumes no responsibility and shall not be
liable for loss or damage due to errors unless said errors are
caused by its negligence, bad faith, or willful misconduct or
that of its employees. In the event that any claim is asserted
against DST under this Agreement for any reason other than
DST's bad faith, willful misconduct or gross negligence, DST's
liability with respect to, arising from or arising in
connection with this Agreement, or from all services provided
or omitted to be provided under this Agreement, whether in
contract, or in tort, or otherwise, is limited to, and shall
not exceed, the amounts paid hereunder by the Fund to DST as
fees and charges, but not including reimbursable expenses,
during the previous twelve (12) months.
E. EXCEPT FOR VIOLATIONS OF SECTION 23, IN NO EVENT AND UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY TO THIS AGREEMENT BE LIABLE
TO ANYONE, INCLUDING, WITHOUT LIMITATION TO THE OTHER PARTY,
FOR CONSEQUENTIAL DAMAGES FOR ANY ACT OR FAILURE TO ACT UNDER
ANY PROVISION OF THIS AGREEMENT EVEN IF ADVISED OF THE
POSSIBILITY THEREOF.
9. CERTAIN COVENANTS OF DST AND THE FUND.
A. All requisite steps will be taken by the Fund from time to
time when and as necessary to register the Fund's shares for
sale in all states in which the Fund's shares shall at the
time be offered for sale and require registration. If at any
time the Fund receives notice of any stop order or other
proceeding in any such state affecting such registration or
the sale of the Fund's shares, or of any stop order or other
proceeding under the federal securities laws affecting the
sale of the Fund's shares, the Fund will give prompt notice
thereof to DST.
B. DST hereby agrees to perform such transfer agency functions as
are set forth in Section 4.D. above and establish and maintain
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facilities and procedures reasonably acceptable to the Fund
for safekeeping of stock certificates, check forms, and
facsimile signature imprinting devices, if any; and for the
preparation or use, and for keeping account of, such
certificates, forms and devices, and to carry such insurance
as it considers adequate and reasonably available.
C. To the extent required by Section 31 of the Investment Company
Act of 1940 as amended and Rules thereunder, DST agrees that
all records maintained by DST relating to the services to be
performed by DST under this Agreement are the property of the
Fund and will be preserved and will be surrendered promptly to
the Fund on request.
D. DST agrees to furnish the Fund annual reports of its financial
condition, consisting of a balance sheet, earnings statement
and any other publicly available financial information
reasonably requested by the Fund and a copy of the report
issued by its certified public accountants pursuant to Rule
17Ad-13 under the 1934 Act as filed with the SEC. The annual
financial statements will be certified by DST's certified
public accountants and may be included in DST's publicly
distributed Annual Report.
E. DST represents and agrees that it will use its reasonable
efforts to keep current on the trends of the investment
company industry relating to shareholder services and will use
its reasonable efforts to continue to modernize and improve.
F. DST will permit the Fund and its authorized representatives to
make periodic inspections of its operations as such would
involve the Fund at reasonable times during business hours.
G. DST will provide in Kansas City at the Fund's request and
expense training for the Fund's personnel in connection with
use and operation of the TA2000 System. All travel and
reimbursable expenses incurred by the Fund's personnel in
connection with and during training at DST's Facility shall be
borne by the Fund. At the Fund's option and expense, DST also
agrees to use its reasonable efforts to provide two (2) man
weeks of training at the Fund's facility for the Fund's
personnel in connection with the continued operation of the
TA2000 System. Reasonable travel, per diem and reimbursable
expenses incurred by DST personnel in connection with and
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during training at the Fund's facility or in connection with
the conversion shall be borne by the Fund.
10. RECAPITALIZATION OR READJUSTMENT.
In case of any recapitalization, readjustment or other change in the
capital structure of the Fund requiring a change in the form of stock
certificates, DST will issue or register certificates in the new form
in exchange for, or in transfer of, the outstanding certificates in the
old form, upon receiving:
A. Written instructions from an officer of the Fund;
B. Certified copy of the amendment to the Articles of
Incorporation or other document effecting the change;
C. Certified copy of the order or consent of each governmental or
regulatory authority, required by law to the issuance of the
stock in the new form, and an opinion of counsel that the
order or consent of no other government or regulatory
authority is required;
D. Specimens of the new certificates in the form approved by the
Board of Directors of the Fund, with a certificate of the
Secretary of the Fund as to such approval;
E. Opinion of counsel for the Fund stating:
(1) The status of the shares of stock of the Fund in the
new form under the Securities Act of 1933, as amended
and any other applicable federal or state statute;
and
(2) That the issued shares in the new form are, and all
unissued shares will be, when issued, validly issued,
fully paid and nonassessable.
11. RESERVED.
12. DEATH, RESIGNATION OR REMOVAL OF SIGNING OFFICER.
The Fund will file promptly with DST written notice of any change in
the officers authorized to sign written requests or instructions to
give requests or instructions, together with two signature cards
bearing the specimen signature of each newly authorized officer.
13. FUTURE AMENDMENTS OF CHARTER AND BYLAWS.
The Fund will promptly file with DST copies of all material amendments
to its Articles of Incorporation or Bylaws made after the date of this
Agreement.
16
14. INSTRUCTIONS, OPINION OF COUNSEL AND SIGNATURES.
At any time DST may apply to any person authorized by the Fund to give
instructions to DST, and may with the approval of a Fund officer and at
the expense of the Fund, either consult with legal counsel for the Fund
or consult with counsel chosen by DST and acceptable to the Fund, with
respect to any matter arising in connection with the agency and it will
not be liable for any action taken or omitted by it in good faith in
reliance upon such instructions or upon the opinion of such counsel.
For purposes hereof, DST's internal counsel and attorneys employed by
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, DST's primary outside counsel, are
acceptable to the Fund. DST will be protected in acting upon any paper
or document reasonably believed by it to be genuine and to have been
signed by the proper person or persons and will not be held to have
notice of any change of authority of any person, until receipt of
written notice thereof from the Fund. It will also be protected in
recognizing stock certificates which it reasonably believes to bear the
proper manual or facsimile signatures of the officers of the Fund, and
the proper countersignature of any former Transfer Agent or Registrar,
or of a co-Transfer Agent or co-Registrar.
15. FORCE MAJEURE AND DISASTER RECOVERY PLANS.
A. DST shall not be responsible or liable for its failure or
delay in performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by
circumstances beyond its reasonable control, including,
without limitation: any interruption, loss or malfunction or
any utility, transportation, computer hardware, provided such
equipment has been reasonably maintained, or third party
software or communication service; inability to obtain labor,
material, equipment or transportation, or a delay in mails;
governmental or exchange action, statute, ordinance, rulings,
regulations or direction; war, strike, riot, emergency, civil
disturbance, terrorism, vandalism, explosions, labor disputes,
freezes, floods, fires, tornadoes, acts of God or public
enemy, revolutions, or insurrection; or any other cause,
contingency, circumstance or delay not subject to DST's
reasonable control which prevents or hinders DST's performance
hereunder.
B. DST currently maintains an agreement with a third party
whereby DST is to be permitted to use on a "shared use" basis
17
a "hot site" (the "Recovery Facility") maintained by such
party in event of a disaster rendering the DST Facilities
inoperable. DST has developed and is continually revising a
business contingency plan (the "Business Contingency Plan")
detailing which, how, when, and by whom data maintained by DST
at the DST Facilities will be installed and operated at the
Recovery Facility. Provided the Fund is paying its pro rata
portion of the charge therefor, DST will, in the event of a
disaster rendering the DST Facilities inoperable, use
reasonable efforts to convert the TA2000 System containing the
designated Fund data to the computers at the Recovery Facility
in accordance with the then current Business Contingency Plan.
C. DST also currently maintains, separate from the area in which
the operations which provides the services to the Fund
hereunder are located, a Crisis Management Center consisting
of phones, computers and the other equipment necessary to
operate a full service transfer agency business in the event
one of its operations areas is rendered inoperable. The
transfer of operations to other operating areas or to the
Crisis Management Center is also covered in DST's Business
Contingency Plan.
16. CERTIFICATION OF DOCUMENTS.
The required copy of the Articles of Incorporation of the Fund and
copies of all amendments thereto will be certified by the Secretary of
State (or other appropriate official) of the State of Incorporation,
and if such Articles of Incorporation and amendments are required by
law to be also filed with a county, city or other officer of official
body, a certificate of such filing will appear on the certified copy
submitted to DST. A copy of the order or consent of each governmental
or regulatory authority required by law to the issuance of the stock
will be certified by the Secretary or Clerk of such governmental or
regulatory authority, under proper seal of such authority. The copy of
the Bylaws and copies of all amendments thereto, and copies of
resolutions of the Board of Directors of the Fund, will be certified by
the Secretary or an Assistant Secretary of the Fund under the Fund's
seal.
18
17. RECORDS.
DST will maintain customary records in connection with its agency, and
particularly will maintain those records required to be maintained
pursuant to subparagraph (2) (iv) of paragraph (b) of Rule 31a-1 under
the Investment Company Act of 1940, if any.
18. DISPOSITION OF BOOKS, RECORDS AND CANCELED CERTIFICATES.
DST may send periodically to the Fund, or to where designated by the
Secretary or an Assistant Secretary of the Fund, all books, documents,
and all records no longer deemed needed for current purposes and stock
certificates which have been canceled in transfer or in exchange, upon
the understanding that such books, documents, records, and stock
certificates will be maintained by the Fund under and in accordance
with the requirements of Section 17Ad-7 adopted under the Securities
Exchange Act of 1934. Such materials will not be destroyed by the Fund
without the consent of DST (which consent will not be unreasonably
withheld), but will be safely stored for possible future reference.
19. PROVISIONS RELATING TO DST AS TRANSFER AGENT.
A. Instructions for the transfer, exchange or redemption of
shares of the Fund will be accepted, the registration,
redemption or transfer of the shares be effected and, where
applicable, funds remitted therefor. Upon surrender of the old
certificates in form or receipt by DST of instructions deemed
by DST properly endorsed for transfer, exchange or redemption,
accompanied by such documents as DST may deem necessary to
evidence the authority of the person making the transfer,
exchange or redemption, the transfer, exchange or redemption
of the shares reflected by such certificates be effected and
any sums due in connection therewith be remitted, in
accordance with the instructions contained herein. DST
reserves the right to refuse to transfer or redeem shares
until it is satisfied that the endorsement or signature on the
instruction or any other document is valid and genuine, and
for that purpose it may require a guaranty of signature in
accordance with the Signature Guarantee Procedures. DST also
reserves the right to refuse to transfer, exchange or redeem
shares until it is satisfied that the requested transfer,
exchange or redemption is legally authorized, and DST will
incur no liability for the refusal in good faith to make
transfers or redemptions which, in its judgment, are improper
or unauthorized. DST may, in effecting transfers, exchanges or
redemptions, rely upon DST's Procedures and Simplification
19
Acts, UNIFORM COMMERCIAL CODE or other statutes which protect
it and the 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.
B. DST will, at the expense of the Fund, issue and mail
subscription warrants, effectuate stock dividends, exchanges
or split ups, or act as Conversion Agent upon receiving
written instructions from any officer of the Fund and such
other documents as DST deems necessary.
C. DST will, at the expense of the Fund, supply a shareholder's
list to the Fund for its annual meeting upon receiving a
request from an officer of the Fund. It will also, at the
expense of the Fund, supply lists at such other times as may
be requested by an officer of the Fund.
D. Upon receipt of written instructions of an officer of the
Fund, DST will, at the expense of the Fund, address and mail
notices to shareholders.
E. In case of any request or demand for the inspection of the
stock books of the Fund or any other books in the possession
of DST, DST will endeavor to notify the Fund and to secure
instructions as to permitting or refusing such inspection. DST
reserves the right, however, to exhibit the stock books or
other books to any person in case it is advised by its counsel
that it may be held responsible for the failure to exhibit the
stock books or other books to such person.
20. PROVISIONS RELATING TO DIVIDEND DISBURSING AGENCY.
A. DST will, at the expense of the Fund, provide a special form
of check containing the imprint of any device or other matter
desired by the Fund. Said checks must, however, be of a form
and size convenient for use by DST.
B. If the Fund desires to include additional printed matter,
financial statements, etc., with the dividend checks, the same
will be furnished DST within a reasonable time prior to the
date of mailing of the dividend checks, at the expense of the
Fund.
20
C. If the Fund desires its distributions mailed in any special
form of envelopes, sufficient supply of the same will be
furnished to DST but the size and form of said envelopes will
be subject to the approval of DST. If stamped envelopes are
used, they must be furnished by the Fund; or if postage stamps
are to be affixed to the envelopes, the stamps or the cash
necessary for such stamps must be furnished by the Fund.
D. DST shall establish and maintain on behalf of the Fund one or
more deposit accounts as Agent for the Fund, into which DST
shall deposit the funds DST receives for payment of dividends,
distributions, redemptions or other disbursements provided for
hereunder and to draw checks against such accounts.
E. DST is authorized and directed to stop payment of checks
theretofore issued hereunder, but not presented for payment,
when the payees thereof allege either that they have not
received the checks or that such checks 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 Disbursing Agent as those terms
are referred to in Section 4.D. of this Agreement including
but not limited to answering and responding to telephone
inquiries from shareholders and brokers, accepting shareholder
and broker instructions (either or both oral and written) and
transmitting orders based on such instructions to DST,
preparing and mailing confirmations, obtaining certified TIN
numbers, classifying the status of shareholders and
shareholder accounts under applicable tax law, establishing
shareholder accounts on the TA2000 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
21
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 AS APPROPRIATE):
22. TERMINATION OF AGREEMENT.
A. This Agreement shall be in effect for an initial period of
three (3) years and, thereafter, shall automatically extend
for additional, successive twelve (12) month terms upon the
expiration of any term hereof unless terminated as hereinafter
provided.
B. Each party, in addition to any other rights and remedies,
shall have the right to terminate this Agreement forthwith
upon the occurrence at any time of any of the following events
with respect to the other party:
(1) The bankruptcy of the other party or its assigns or
the appointment of a receiver for the other party or
its assigns; or
(2) Failure by the other party or its assigns to perform
its duties in accordance with the Agreement, which
failure materially adversely affects the business
operations of the first party and which failure
continues for thirty (30) days after receipt of
written notice from the first party.
C. Either party may terminate this Agreement at any time by
delivery to the other party of six (6) months prior written
notice of such termination; provided, however, that the
effective date of any termination and conversion off the
TA2000 System (a "Deconversion") shall not occur during the
period from November 30 through March 15 of any year to avoid
adversely impacting year end.
D. In the event of any termination of this Agreement:
(1) The Fund will continue to pay to DST as invoiced all
sums due for DST's services until completion of the
Deconversion and will pay to DST, no later than
contemporaneously with the dispatch by DST of the
Fund's records, all amounts payable to DST.
(2) If, for any reason, the Fund desires to convert from
the TA2000 System ("Deconvert") other than on the
22
first day after six (6) months from the receipt by
DST of the termination notice (such first day after
the expiration of six (6) months being hereinafter
referred to as the "Termination Date"), and DST is
able, through reasonable efforts, to accomplish such
earlier deconversion, the Fund shall pay to DST on
the day of or before the deconversion the fees which
DST would have earned had the Fund not Deconverted,
and had DST remained the transfer/shareholder
servicing agent, until the Termination Date. The
amount of such fees shall be calculated by: (a)
dividing the aggregate fees charged to the Fund with
respect to the six (6) whole months immediately
preceding receipt by DST of the six (6) month
termination notice by (b) twenty-six (26) (the number
of weeks in such six (6) month period) to determine
the average weekly fee and (c) multiplying the
average weekly fee times the number of whole or
partial weeks between the date on which Deconversion
actually occurs and the Termination Date.
(3) Subsequent to any deconversion:
(a) The Fund shall continue to pay to DST,
subject to and in accordance with the terms and
conditions set forth in Sections 6.A., 6.B.,
6.C. and 6.D. of this Agreement (which Sections
shall survive termination of this Agreement for
purposes of payment of Exhibit B fees for as
long as DST is providing such services), for
all expenses incurred on the Fund's behalf and
the post-Deconversion fees set forth in Exhibit
B to this Agreement until (i) the Fund accounts
are purged from the TA2000 System (no longer
being required for Year End Reporting) with
respect to closed account fees and (ii) so long
as DST's services are utilized with respect to
all fees other than those for closed accounts
by the Fund, the Fund's new transfer agent and
the Fund's shareholders, former shareholders,
broker-dealers or other entities with whom the
Fund does business, as well as any persons
claiming through or on behalf of any of the
foregoing; and
23
(b) To the extent applicable regulations of the
Internal Revenue Service and tax laws permit,
the Fund shall require the Fund's new transfer
agent to perform and dispatch or file all
required year end reporting (tax or otherwise
and federal and state) to shareholders,
broker-dealers, beneficial owners, federal and
state agencies and any other recipients thereof
for the entire year during which the
Deconversion occurs and DST shall have no, and
the Fund hereby indemnifies DST and holds DST
harmless against any, liability or Adverse
Consequences whatsoever with respect thereto,
including by way of example and not limitation,
reports or returns on Forms 1099, 5498, 945,
1042 and 1042S, annual account valuations for
retirement accounts and year end statements for
all accounts and any other reports required to
be made by state governments or the federal
government or regulatory or self-regulatory
agencies (the "Returns");
(c) If the Fund is unable to obtain a commitment
from the new transfer agent that the new
transfer agent will perform year end reporting
(tax or otherwise) for the entire year and mail
and file all 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 through the
end of the last month during which the last
Return or form is filed. The Fund will cause
the new transfer agent to timely advise DST of
all changes to the shareholder records
effecting such reporting until all DST
reporting obligations cease; and DST shall have
no, and the Fund hereby indemnifies DST and
holds DST harmless against any, liability or
any Adverse Consequences arising out of or
resulting from the failure of the new transfer
agent to timely and properly advise DST thereof
or which could have been avoided if the new
transfer agent had timely and properly advised
DST thereof. All amendments to, or delivery of
duplicate, Returns after their initial dispatch
or filing will be effectuated and filed or
24
dispatched by the new transfer agent regardless
of who filed or dispatched the original Return;
and
(d) All of the records belonging to the Fund on the
TA2000 System may be purged by DST without
liability on behalf of DST to the Fund or its
agents, shareholders, and parties with whom the
Fund has done or will do business, at any time
on or after the forty-fifth (45th) day after
the Termination Date *insert V. The Fund shall
and hereby agrees to indemnify and hold DST
harmless against any Adverse Consequences
directly or indirectly arising out of or
resulting from any inability to produce such
purged records. The Fund will, and will cause
the new transfer agent to, maintain and
preserve the records converted from the TA2000
System or any hard copy records transferred by
DST to the Fund or the new transfer agent in
accordance with the requirements of all
applicable law, including without limitation 17
C.F.R. ss.ss.240.17Ad-6, -7, -10, -11 and -15
(including without limitation to make copies
thereof available timely and at no charge to
appropriate regulatory agencies in accordance
with the requirements of Section 17Ad-7, and,
as reasonably necessary, DST). Notwithstanding
the foregoing, upon the request and at the
expense of the Fund, DST shall not purge, but
shall retain as closed accounts on the TA2000
System, the records belonging to the Fund.
E. In addition, in the event of any termination, DST will,
provided the Fund contemporaneously pays all outstanding
charges and fees, promptly transfer all of the records of the
Fund to the designated successor transfer agent. DST shall
also provide reasonable assistance to the Fund and its
designated successor transfer agent and other information
relating to its services provided hereunder (subject to the
recompense of DST for such assistance and information at its
standard rates and fees for personnel then in effect at that
time); provided, however, as used herein "reasonable
assistance" and "other information" shall not include
assisting any new service or system provider to modify, alter,
25
enhance, or improve its system or to improve, enhance, or
alter its current system, or to provide any new, functionality
or to require DST to disclose any DST Confidential
Information, as hereinafter defined, or any information which
is otherwise confidential to DST.
23. CONFIDENTIALITY.
A. DST agrees that, except as provided in the last sentence of
Section 19.J. hereof, or as otherwise required by law, DST
will keep confidential all records of and information in its
possession relating to the Fund or its shareholders or
shareholder accounts and will not disclose the same to any
person except at the request or with the consent of the Fund.
B. The Fund owns all of the data supplied by or on behalf of the
Fund to DST. The Fund has proprietary rights to all such data,
records and reports containing such data, but not including
the software programs upon which such data is installed, and
all records containing such data will be transferred in
accordance with Section 22.D above in the event of
termination.
C. The Fund agrees to keep confidential all non-public financial
statements and other financial records of DST received
hereunder, all accountants' reports relating to DST, the terms
and provisions of this Agreement, including all exhibits and
schedules now or in the future attached hereto and all
manuals, systems and other technical information and data, not
publicly disclosed, relating to DST's operations and programs
furnished to it by DST pursuant to this Agreement and will not
disclose the same to any person except at the request or with
the consent of DST.
D. (1) The Fund acknowledges that DST has proprietary rights
in and to the TA2000 System used to perform services
hereunder including, but not limited to the
maintenance of shareholder accounts and records,
processing of related information and generation of
output, including, without limitation any changes or
modifications of the TA2000 System and any other DST
programs, data bases, supporting documentation, or
procedures (collectively "DST Confidential
Information") which the Fund's access to the TA2000
System or computer hardware or software may permit
26
the Fund or its employees or agents to become aware
of or to access and that the DST Confidential
Information constitutes confidential material and
trade secrets of DST. The Fund agrees to maintain the
confidentiality of the DST Confidential Information.
(2) The Fund acknowledges that any unauthorized use,
misuse, disclosure or taking of DST Confidential
Information which is confidential as provided by law,
or which is a trade secret, residing or existing
internal or external to a computer, computer system,
or computer network, or the knowing and unauthorized
accessing or causing to be accessed of any computer,
computer system, or computer network, may be subject
to civil liabilities and criminal penalties under
applicable state law. The Fund will advise all of its
employees and agents who have access to any DST
Confidential Information or to any computer equipment
capable of accessing DST or DST hardware or software
of the foregoing.
(3) The Fund acknowledges that disclosure of the DST
Confidential Information may give rise to an
irreparable injury to DST inadequately compensable in
damages. Accordingly, DST may seek (without the
posting of any bond or other security) injunctive
relief against the breach of the foregoing
undertaking of confidentiality and nondisclosure, in
addition to any other legal remedies which may be
available, and the Fund consents to the obtaining of
such injunctive relief. All of the undertakings and
obligations relating to confidentiality and
nondisclosure, whether contained in this Section or
elsewhere in this Agreement shall survive the
termination or expiration of this Agreement for a
period of ten (10) years.
24. CHANGES AND MODIFICATIONS.
A. During the term of this Agreement DST will use on behalf of
the Fund without additional cost all modifications,
enhancements, or changes which DST may make to the TA2000
System in the normal course of its business and which are
27
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 System or DST Facilities hereunder or the
reports to be generated by such system and facilities
hereunder, unless the Fund is given thirty (30) days prior
notice to allow the Fund to change its procedures and DST
provides the Fund with revised operating procedures and
controls at the time such notice is delivered to the Fund.
C. All enhancements, improvements, changes, modifications or new
features added to the TA2000 System however developed or paid
for shall be, and shall remain, the confidential and exclusive
property of, and proprietary to, DST.
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.
28
A. If the Fund is comprised of more than one Portfolio, each
Portfolio shall be regarded for all purposes hereunder as a
separate party apart from each other Portfolio. Unless the
context otherwise requires, with respect to every transaction
covered by this Agreement, every reference herein to the Fund
shall be deemed to relate solely to the particular Portfolio
to which such transaction relates. Under no circumstances
shall the rights, obligations or remedies with respect to a
particular Portfolio constitute a right, obligation or remedy
applicable to any other Portfolio. The use of this single
document to memorialize the separate agreement of each
Portfolio is understood to be for clerical convenience only
and shall not constitute any basis for joining the Portfolios
for any reason.
B. Notice is hereby given that a copy of the Fund's Trust
Agreement and all amendments thereto is on file with the
Secretary of State of the state of its organization; that this
Agreement has been executed on behalf of the Fund by the
undersigned duly authorized representative of the Fund in
his/her capacity as such and not individually; and that the
obligations of this Agreement shall only be binding upon the
assets and property of the Fund and shall not be binding upon
any trustee, officer or shareholder of the Fund individually.
27. MISCELLANEOUS.
A. This Agreement shall be construed according to, and the rights
and liabilities of the parties hereto shall be governed by,
the laws of the State of Missouri, excluding that body of law
applicable to choice of law.
B. All terms and provisions of this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the
parties hereto and their respective successors and permitted
assigns.
C. The representations and warranties, and the indemnification
extended hereunder, if any, are intended to and shall continue
after and survive the expiration, termination or cancellation
of this Agreement.
D. No provisions of this Agreement may be amended or modified in
any manner except by a written agreement properly authorized
and executed by each party hereto.
29
E. The captions in this Agreement are included for convenience of
reference only, and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or
effect.
F. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
G. If any part, term or provision of this Agreement is by the
courts held to be illegal, in conflict with any law or
otherwise invalid, the remaining portion or portions shall be
considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as
if the Agreement did not contain the particular part, term or
provision held to be illegal or invalid.
H. This Agreement may not be assigned by the Fund or DST without
the prior written consent of the other.
I. Neither the execution nor performance of this Agreement shall
be deemed to create a partnership or joint venture by and
between the Fund and DST. It is understood and agreed that all
services performed hereunder by DST shall be as 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.
30
L. This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement, draft or
agreement or proposal with respect to the subject matter
hereof, whether oral or written, and this Agreement may not be
modified except by written instrument executed by both
parties.
M. All notices to be given hereunder shall be deemed properly
given if delivered in person or if sent by U.S. mail, first
class, postage prepaid, or if sent by facsimile and
thereafter, in the case of non-operational notices only,
confirmed by mail as follows:
If to DST:
DST Systems, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Group Vice President-Full Service
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
With a copy of non-operational notices to:
DST Systems, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Legal Department
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
If to the Fund:
Advisors' Inner Circle Fund
C/O SEI Investments
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
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 and Section 22.D.(3)(a) 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.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officers, to be effective as of the
day and year first above written.
ADIVISORS INNER CIRCLE FUND DST SYSTEMS, INC.
By: By:
----------------------------------- -----------------------------------
Title: Title:
-------------------------------- --------------------------------
SEI-Advisors ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇-▇▇-▇▇
32
EXHIBIT A, P.1 OF 6
DST SYSTEMS, INC.
ADIVSORS INNER CIRCLE FUND FEE SCHEDULE
EFFECTIVE APRIL 1, 2003 - MARCH 31, 2006
NOTE: THE FOLLOWING FEE SCHEDULE APPLIES TO EACH PORTFOLIO IN THE ADVISORS INNER
CIRCLE FUND ON A STAND ALONE BASIS EXCLUDING THE AIG FUNDS.
I. TRANSFER AGENCY
A. MINIMUM FEE
CUSIPS in the range 1 - 10 $22,012 per CUSIP per year
CUSIPS in the range > 10 $16,509 per CUSIP per year
(NOTE: MINIMUM APPLIES UNLESS CHARGES INCLUDED IN SECTION B EXCEED THE MINIMUM.)
B. ACCOUNT MAINTENANCE AND PROCESSING FEES
Open Accounts $28.96 per account per year
Closed Accounts $3.31 per account per year
C. OTHER SERVICES
Lost Shareholder Compliance $1.35 per lost S/H account +
$1.69 per database match
12b-1 Processing $0.19 per open & closed acct
per cycle
CDSC/Sharelot Processing $2.21 per account per year
Ad-Hoc Reporting:
Multi File Reports $463 per report
Single Reports $290 per report
Escheatment Costs
$141 per CUSIP per filing +
$1.69 per item + OOP Costs
* TA2000 Voice System Exhibit A.1
* NSCC Exhibit A.2
* Financial Intermediary Interfaces Exhibit A.3
* Fund Closing /Deconversion Exhibit B
Conversion/Acquisition Costs - Out of Pocket expenses including, but not
limited to travel and accommodations, programming, training, equipment
installation, etc.
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EXHIBIT A, P. 2 OF 6
DST SYSTEMS, INC.
ADIVSORS INNER CIRCLE FUND
* Computer/Technical Support (2003 Rates)
Business Analyst/Tester:
Dedicated $111,492 per year
On-Request $98.90 per hour
COBOL Programmer:
Dedicated $187,978 per year
On-Request $149.30 per hour
Workstation Programmer:
Dedicated $215,445 per year
On-Request $176.90 per hour
Full Service Support:
Senior Staff Support $75.00 per hour
Staff Support $55.00 per hour
Clerical Support $45.00 per hour
NOTES TO THE ABOVE FEE SCHEDULE
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 the Fund,
provided that written notification is presented to DST at least forty-five (45)
days prior to the Purge Date.
FEE INCREASES
The fees and charges set forth in this Fee Schedule shall increase annually upon
each anniversary of this Agreement over the fees and charges during the prior 12
months in an amount based on the annual percentage of change in the Consumer
Price Index (CPI-U) in the Kansas City, Missouri-Kansas Standard Metropolitan
Statistical Area, All Items, Base 1982-1984=100, as last reported by the U.S.
Bureau of Labor Statistics. Items marked by an "*" are subject to change with 60
days notice. 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.
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EXHIBIT A, P. 3 OF 6
DST SYSTEMS, INC.
ADVISORS INNER CIRCLE FUND
LATE FEES
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.
REIMBURSABLE EXPENSES
This Fee Schedule does not include reimbursable expenses that are incurred on
the Fund's behalf. Examples of reimbursable expenses include, but are not
limited to the items listed below.
Forms
Postage (to be paid in advance if so requested)
Mailing Services
Computer Hardware and Software - specific to Fund or installed at remote
site at Fund's direction
Telecommunications Equipment and Lines/Long Distance Charges
Magnetic Tapes, Reels or Cartridges
Magnetic Tape Handling Charges
Microfiche/Microfilm
Freight Charges
Printing
Bank Wire and ACH Charges
Proxy Processing - per proxy mailed not including postage
Includes: Proxy Card
Printing
Outgoing Envelope
Return Envelope
Tabulation and Certification
T.I.N. Certification (W8 & W9)
(Postage associated with the return envelope is included)
Off-site Record Storage
Second Site Disaster Backup Fee (per account) Currently $.10
Travel, Per Diem and other Billables incurred by DST personnel traveling
to, at and from the Fund at the request of the Fund.
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TA2000 VOICE SYSTEM ▇▇▇▇▇▇▇ ▇.▇, ▇. ▇ ▇▇ ▇
▇▇▇ ▇▇▇▇▇▇▇▇
PER CALL SERVICE FEE
Utilization of DST's TA2000 Voice System is based on a service fee of $.21 per
call. Each call has a maximum duration of seven (7) minutes. This charge is a
flat rate regardless of the number or type of transactions that a shareholder
processes during the call. A given call could result in inquiries and/or
transactions being processed for various funds in the complex. Therefore, on a
monthly basis, DST will report the number of inquiries and/or transactions
processed by fund. A percentage of the total will be derived and reported for
each fund. As a result of this process, DST will allocate the charges among the
individual funds.
MULTIPLE CALL FLOWS
An additional fee of $525 per month will be charged for each additional call
flow that requires different flows, functions, vocabulary, processing, rules or
access method. An additional fee of $210 per month will be charged for each
additional call flow that is identical in flows, functions, vocabulary,
processing rules or access method.
MINIMUM MONTHLY CHARGE
DST's commitment to the reliability and continued enhancement of the TA2000
Voice System necessitates a minimum monthly charge for the service. The minimum
monthly charge will only be assessed when it is greater than the monthly service
fees. The minimum monthly charge will be implemented on a graduated basis based
on the number of CUSIPS and shareholders in a fund complex and is the sum of the
CUSIP and account charges. The schedule for this charge is as follows:
YEARS CHARGE PER CHARGE PER
OF CUSIP AUTHORIZED SHAREHOLDER
SERVICE FOR SERVICE* ACCOUNT**
1 $ 53 $.003
2 $ 79 $.004
3 $105 $.005
* CUSIPS ADDED TO THE SERVICE will be subject to the same
minimums being charged to the other CUSIPS in the complex at
the time the CUSIPS are added.
** THE PER ACCOUNT CHARGE is based on the total number of
shareholder accounts in authorized CUSIPS at the end of each
month.
OUT OF POCKET COSTS
Each fund complex will require a unique WATS number for their shareholders to
call. Each WATS number will require a specific number of trunks to service a
given volume of shareholder calls. All installation and monthly usage charges
associated with these will be billed through monthly out-of-pocket invoices.
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▇▇▇▇▇▇▇ ▇.▇, ▇. ▇ ▇▇ ▇
▇▇▇▇ FEES AND OUT-OF-POCKET EXPENSES
DST FEES
DST charges $1,575 per CUSIP per year for the NSCC platform.
NSCC PARTICIPANT FEES
The NSCC charges $40 per month per NSCC Participant any for CPU
access/shared line costs.
A combined participant base fee of $200 per month is charged for the
following services:
FUND/SERV:
The NSCC charges an activity charge of $.175 per inputted transaction.
Transactions include purchases, redemptions and exchanges.
NETWORKING:
- $.02 per account for funds paying dividends on a monthly basis
- $.01 per account for funds paying dividends other than monthly
COMMISSION SETTLEMENT:
- $.30 per hundred records, per month, for one to 500,000 records;
there is a $50 per month minimum processing charge
- $.20 per hundred records, per month, for 500,001 to 1,000,000 records
- $.10 per hundred records, per month, for 1,000,001 records and above
MUTUAL FUND PROFILE SERVICE MONTHLY MEMBERSHIP FEE
- $325.00 per month
SETTLING BANK FEES
The fund may be charged fees by the Funds Settling Bank at which the net
settlement account resides for monthly maintenance of this account. These
are negotiated directly between the Fund and the Settling Bank.
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EXHIBIT A.3, P. 6 OF 6
FINANCIAL INTERMEDIARY/THIRD PARTY ADMINISTRATOR FEES
BASE FEE (PER INTERMEDIARY PER MONTH) $105.00
-------------------------------------
PHONE CALLS (INBOUND/OUTBOUND) $4.20 (1)
------------------------------
TRANSACTIONS:
Manual Same Day (T) Processing/Settlement
Environments (not processed until money received) $3.68/each (1)
Manual or Automated Non-Same Day (T+x) Processing/
Settlement Environments (systematic "as-of" T NAV,
adjusted supersheets, expedited money movement) $11.55/each
ALL INBOUND ELECTRONIC DATA TRANSMISSIONS
Data Transmissions/Interfaces:
First 10 Intermediaries $53/intermediary/mo
Next 15 Intermediaries $42/intermediary/mo
Intermediaries over 25 $32/intermediary/mo
Initial Set-up Standard Programming/Client Services Fees
Note: DST will assess charges to receivers of outbound electronic data
transmissions comprised of an initial setup fee, and a monthly fee based on the
number of management companies being accessed.
(1) If the Transfer Agency fee agreement has lower stated rates for phone calls
and manual same day
(T) transactions DST will honor those stated rates.
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EXHIBIT B
POST DECONVERSION FEE SCHEDULE
ALL FEES EFFECTIVE AS OF DECONVERSION:
Closed Accounts As stated in fee schedule
Closed CUSIP Fee $158 per closed CUSIP per month
Above charges are effective through May of the following year to
compensate DST for tax reporting and statement production.
PROGRAMMING
As required at DST's then current standard rates
REIMBURSABLE EXPENSES
This schedule does not include reimbursable expenses that are incurred on the
Fund's behalf. Examples of reimbursable expenses include but are not limited to
forms, postage, mailing services, telephone line/long distance charges,
transmission of statement data for remote print/mail operations, remote client
hardware, document storage, tax certification mailings, magnetic tapes,
printing, microfiche, Fed wire bank charges, ACH bank charges, NSCC charges, as
required or incurred, etc. Reimbursable expenses are billed separately from
Account Maintenance and Programming fees on a monthly basis and late payments
are subject to late charges in accordance with Section 6.C. of this Agreement.
39
EXHIBIT C
AUTHORIZED PERSONNEL
Pursuant to the Agency Agreement between Advisors' Inner Circle Fund (the
"Fund") and DST (the "Agreement"), the Fund authorizes the following personnel
of the Fund or its agents to provide instructions to DST, and receive inquiries
from DST in connection with the Agreement:
NAME TITLE
----------------------------- --------------------------------
----------------------------- --------------------------------
----------------------------- --------------------------------
----------------------------- --------------------------------
----------------------------- --------------------------------
----------------------------- --------------------------------
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This Exhibit may be revised by the Fund by providing DST with a substitute
Exhibit C. Any such substitute Exhibit C shall become effective twenty-four (24)
hours after DST's receipt of the document and shall be incorporated into the
Agreement.
ACKNOWLEDGMENT OF RECEIPT:
DST SYSTEMS, INC. ADVISORS' INNER CIRCLE FUND
By: By:
------------------------ ------------------------
Title: Title:
--------------------- ---------------------
Date: Date:
---------------------- ----------------------
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EXHIBIT D
FUNDS SUBJECT TO THIS AGREEMENT
AIG Money Market - Class A
AIG Money Market - Class B
Acadian Emerging Markets Portfolio, INSTITUTIONAL
Analytic Defensive Equity A, INSTITUTIONAL
Analytic Global Long-Short Fund, INSTITUTIONAL
Analytic Short-Term Income A, INSTITUTIONAL
▇▇▇▇▇ & ▇▇▇▇▇▇ Large Cap Value Portfolio, INSTITUTIONAL
▇▇▇▇▇ & ▇▇▇▇▇▇ Mid Cap Value Portfolio, INSTITUTIONAL
▇▇▇▇▇ & ▇▇▇▇▇▇ Tax Managed Value Portfolio, INSTITUTIONAL
Chicago Asset Mgmt Value Portfolio, INSTITUTIONAL
Cambiar International Equity Fund, INSTITUTIONAL
Cambiar Opportunity Portfolio, INSTITUTIONAL
Independence Small Cap Portfolio, INSTITUTIONAL
First Manhattan Select Fund
First Manhattan Strategic Value Fund
FMA Small Company Portfolio, INSTITUTIONAL
HGK Equity Value
Investment Counselors of Maryland Small Company Portfolio, INSTITUTIONAL
LSV Value Equity Fund
CSMcKee International Equity Portfolio, INSTITUTIONAL
Rice Hall ▇▇▇▇▇ ▇▇▇▇▇/Mid Cap Portfolio, INSTITUTIONAL
Rice ▇▇▇▇ ▇▇▇▇▇ Micro Cap Portfolio, INSTITUTIONAL
Sirach Bond Portfolio, INSTITUTIONAL
Sirach Equity Portfolio, INSTITUTIONAL
Sirach Growth Portfolio, INSTITUTIONAL
Sirach Special Equity Portfolio, INSTITUTIONAL
Sirach Strategic Balanced Portfolio, INSTITUTIONAL
Sterling Capital Balanced Fund, INSTITUTIONAL
Sterling Capital Small Cap Value Fund, INSTITUTIONAL
TS&W Equity Portfolio, INSTITUTIONAL
TS&W Fixed Income Portfolio, INSTITUTIONAL
TS&W International Equity Portfolio, INSTITUTIONAL
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