AGENCY AGREEMENT
THIS AGREEMENT made the 23rd day of June, 1998, by and between BARON
CAPITAL FUNDS TRUST, and all series thereof, a business trust existing
under the laws of the State of Delaware, having its principal place of
business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Fund"), and
DST SYSTEMS, INC., a corporation existing under the laws of the State of
Delaware, having its principal place of business at 000 X. 00xx Xx., 0xx
Xx., Xxxxxx Xxxx, Xxxxxxxx 00000 ("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 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 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 with respect to:
(1) The Fund's organization and existence under the laws of its
state of organization,
(2) The status of all shares of stock of the Fund covered by the
appointment under the Securities Act of 1933, as amended,
and any other applicable federal or state statute, and
(3) That all issued shares are, and all unissued shares will be,
when issued, validly issued, fully paid and nonassessable.
2. Certain Representations and Warranties of DST.
DST represents and warrants to 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.
E. All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
F. It has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
3. Certain Representations and Warranties of the Fund.
The Fund represents and warrants to DST that:
A. It is a business trust duly organized and existing and in good
standing under the laws of the State of Delaware .
B. It is an open-end diversified management investment company
registered under the Investment Company Act of 1940, as amended.
C. A registration statement under the Securities Act of 1933 has
been filed and will be effective with respect to all shares of
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 TA2000TM, DST's computerized data processing
system for security holder accounting (the "TA2000 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: (i) issuing
(including countersigning), transferring and canceling share
certificates; (ii) maintaining on the TA2000 System shareholder
accounts; (iii) accepting and effectuating the registration and
maintenance of accounts through Networking and the purchase,
redemption, transfer and exchange of shares in such accounts
through Fund/SERV (Networking and Fund/SERV being programs
operated by the National Securities Clearing Corporation ("NSCC")
on behalf of NSCC's participants, including the Funds), in
accordance with instructions transmitted to and received by DST
by transmission from NSCC on behalf of broker-dealers and banks
which have been established by, or in accordance with the
instructions of, an Authorized Person, as hereinafter defined, on
the Dealer File maintained by DST; (iv) issuing instructions to
the Funds' banks for the settlement of transactions between the
Funds and NSCC (acting on behalf of its broker-dealer and bank
participants); (v) providing account and transaction information
from each affected Fund's records on TA2000 in accordance with
NSCC's Networking and Fund/SERV rules for those broker-dealers;
(vi) maintaining shareholder accounts on TA2000 through
Networking; (vii) providing transaction journals; (viii) once
annually preparing shareholder meeting lists for use in
connection with the annual meeting and certifying a copy of such
list; (ix) mailing shareholder reports and prospectuses; (x)
withholding, as required by federal law, taxes on shareholder
accounts, preparing, filing and mailing U.S. Treasury Department
Forms 1099, 1042, and 1042S and performing and paying backup
withholding as required for all shareholders; (xi) disbursing
income dividends and capital gains distributions to shareholders
and recording reinvestment of dividends and distributions in
shares of the Fund; (xii) preparing and mailing confirmation
forms to shareholders and dealers, as instructed, for all
purchases and liquidations of shares of the Fund and other
confirmable transactions in shareholders' accounts; (xiii)
providing or making available on-line daily and monthly reports
as provided by the TA2000 System and as requested by the Fund or
its management company; (xiv) 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; (xv) calculating the appropriate sales charge
with respect to each purchase of the Fund shares as instructed by
an Authorized Person, as hereinafter defined, determining the
portion of each sales charge payable to the dealer participating
in a sale in accordance with schedules and instructions delivered
to DST by the Fund's principal underwriter or distributor
(hereinafter "principal underwriter") or an Authorized Person
from time to time, disbursing dealer commissions collected to
such dealers, determining the portion of each sales charge
payable to such principal underwriter and disbursing such
commissions to the principal underwriter; (xvi) receiving
correspondence pertaining to any former, existing or new
shareholder account, processing such correspondence for proper
record keeping, and responding promptly to shareholder
correspondence; mailing to dealers confirmations of wire order
trades; mailing copies of shareholder statements to shareholders
and registered representatives of dealers in accordance with the
instructions of an Authorized Person; (xvii) processing,
generally on the date of receipt, purchases or redemptions or
instructions to settle any mail or wire order purchases or
redemptions received in proper order as set forth in the
prospectus, rejecting promptly any requests not received in
proper order (as defined by an Authorized Person or the
Procedures as hereinafter defined), and causing exchanges of
shares to be executed in accordance with the instructions of
Authorized Persons, the applicable prospectus and the general
exchange privilege applicable; (xix) providing to the person
designated by an Authorized Person the daily Blue Sky reports
generated by the Blue Sky module of TA2000 with respect to
purchases of shares of the Funds on TA2000; and (xx) providing to
the Fund escheatment reports as requested by an Authorized Person
with respect to the status of accounts and outstanding checks on
TA2000.
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 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 presently
conducted by DST, DST shall not be liable therefore until such
modification or enhancement is installed on the TA2000 System or
new mode of operation is instituted. If any new, additional
function or feature or change or improvement to existing
functions or features or new service or mode of operation
measurably increases DST's cost of performing the services
required hereunder at the current level of service, DST shall
advise the 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 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 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, or when issued will be,
validly issued, fully paid and nonassessable.
6. Compensation and Expenses.
A. In consideration for its services hereunder as Transfer Agent and
Dividend Disbursing Agent, 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
Output Technology, Inc. and Support Resources, Inc.), magnetic
tapes, reels or cartridges (if sent to the Fund or to a third
party at the Fund's request) and magnetic tape handling charges,
off-site record storage, media for storage of records (e.g.,
microfilm, microfiche, optical platters, computer tapes),
computer equipment installed at the Fund's request at the Fund's
or a third party's premises, telecommunications equipment,
telephone/telecommunication lines between 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 product of that
rate announced from time to time by State Street Bank and Trust
Company as its "Prime Rate" plus three (3) percentage points
times the amount overdue, times the number of days from the Due
Date up to and including the day on which payment is received by
DST divided by 365. The parties hereby agree that such late
charge represents a fair and reasonable computation of the costs
incurred by reason of late payment or payment of amounts not
properly due. Acceptance of such late charge shall in no event
constitute a waiver of the Fund's or DST's default or prevent the
non-defaulting party from exercising any other rights and
remedies available to it.
D. In the event that any charges are disputed, the Fund shall, on or
before the Due Date, pay all undisputed amounts due hereunder and
notify DST in writing of any disputed charges for billable
expenses which it is disputing in good faith. Payment for such
disputed charges shall be due on or before the close of the fifth
(5th) business day after the day on which DST provides to the
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, in accordance with the
"Fee Increases" provision in Exhibit A;
(2) DST may increase the fees and charges set forth on Exhibit A
upon at least ninety (90) days prior written notice, if
changes in existing laws, rules or regulations: (i) require
substantial system modifications or (ii) materially increase
cost of performance hereunder;
(3) DST may charge for additional features of TA2000 used by the
Fund which features are not consistent with the Fund's
current processing requirements; and
(4) In the event DST, at the Fund's request or direction,
performs Exception Services, DST shall be entitled to
increase the fees and charges for such Exception Services
from those set forth on Exhibit A to the extent such
Exception Services increase DST's cost of performance.
If DST notifies the 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
subparagraphs (3) or (4) of this Section 6.E., the parties shall
confer, diligently and in good faith, and agree upon a new fee to
cover such new 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, reflect the orders, instructions,
and other information received by DST from the Fund, the Fund's
distributor, manager or principal underwriter, the Fund's
investment adviser, the Fund's sponsor, the Fund's custodian, or
the Fund's administrator (each an "Authorized Person"), broker-
dealers or shareholders;
B. That shareholder lists, shareholder account verifications,
confirmations and other shareholder account information to be
produced from its records or data be available and accurately
reflect the data in the Fund's records on the TA2000 System;
C. The accurate and timely issuance of dividend and distribution
checks in accordance with instructions received from the 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 special bank account
of all checks and payments received by DST from NSCC, broker-
dealers or shareholders for investment in shares;
F. Notwithstanding anything herein to the contrary, with respect to
"as of" adjustments, DST will not assume one hundred percent
(100%) responsibility for losses resulting from "as ofs" due to
clerical errors or misinterpretations of shareholder
instructions, but DST will discuss with the Fund DST's accepting
liability for an "as of" on a case-by-case basis and may accept
financial responsibility for a particular situation resulting in
a financial loss to the Fund where DST in its discretion deems
that to be appropriate;
G. The requiring of proper forms of instructions, signatures and
signature guarantees and any necessary documents supporting the
opening of shareholder accounts, transfers, redemptions and other
shareholder account transactions, all in conformance with DST's
present procedures as set forth in its Legal Manual, Third Party
Check Procedures, Check writing 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 at all times use reasonable care, due diligence and act
in good faith in performing its duties under this Agreement. DST
shall provide its services as Transfer Agent in accordance with
Section 17A of the Securities Exchange Act of 1934, and the rules
and regulations thereunder. In the absence of bad faith, willful
misconduct, knowing violations of applicable law pertaining to
the manner in which transfer agency services are to be performed
by DST (excluding any violations arising directly or indirectly
out of the actions or omissions to act of third parties
unaffiliated with DST), reckless disregard of the performance of
its duties, or negligence on its part, DST shall not be liable
for any action taken, suffered, or omitted by it or for any error
of judgment made by it in the performance of its duties under
this Agreement. For those activities or actions delineated in
the Procedures, DST shall be presumed to have used reasonable
care, due diligence and acted in good faith if it has acted in
accordance with the Procedures, copies of which have been
provided to the Fund and reviewed and approved by the Fund's
counsel, as amended from time to time with approval of counsel,
or for any deviation therefrom approved by the Fund or DST
counsel.
B. DST shall not be responsible for, and the Fund shall indemnify
and hold DST harmless from and against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and
liability which may be asserted against DST or for which DST may
be held to be liable, arising out of or attributable to:
(1) All actions of DST required to be taken by DST pursuant to
this Agreement, provided that DST has acted in good faith
and with due diligence and reasonable care;
(2) The Fund's refusal or failure to comply with the terms of
this Agreement, the Fund's negligence or willful misconduct,
or the breach of any representation or warranty of the Fund
hereunder;
(3) The good faith reliance on, or the carrying out of, any
written or oral instructions or requests of persons
designated by the Fund in writing (see Exhibit B) from time
to time as authorized to give instructions on its behalf or
representatives of an Authorized Person or DST's good faith
reliance on, or use of, information, data, records and
documents received from, or which have been prepared and/or
maintained by the Fund, its investment advisor, its sponsor
or its principal underwriter;
(4) Defaults by dealers or shareowner with respect to payment
for share orders previously entered;
(5) The offer or sale of the Fund's shares in violation of any
requirement under federal securities laws or regulations or
the securities laws or regulations of any state or in
violation of any stop order or other determination or ruling
by any federal agency or state with respect to the offer or
sale of such shares in such state (unless such violation
results from DST's failure to comply with written
instructions of the Fund or of any officer of the Fund that
no offers or sales be input into the Fund's security holder
records in or to residents of such state);
(6) The Fund's errors and mistakes in the use of the TA2000
System, the data center, computer and related equipment used
to access the TA2000 System (the "DST Facilities"), and
control procedures relating thereto in the verification of
output and in the remote input of data;
(7) Errors, inaccuracies, and omissions in, or errors,
inaccuracies or omissions of DST arising out of or resulting
from such errors, inaccuracies and omissions in, the Fund's
records, shareholder and other records, delivered to DST
hereunder by the Fund or its prior agent(s);
(8) Actions or omissions to act by the Fund or agents designated
by the Fund with respect to duties assumed thereby as
provided for in Section 21 hereof; and
(9) DST's performance of Exception Services except where DST
acted or omitted to act in bad faith, with reckless
disregard of its obligations or with gross negligence.
C. Except where DST is entitled to indemnification under Section
8.B. hereof and with respect to "as ofs" set forth in Section
7.F., DST shall indemnify and hold the Fund harmless from and
against any and all losses, damages, costs, charges, counsel
fees, payments, expenses and liability arising out of DST's
failure to comply with the terms of this Agreement or arising out
of or attributable to DST's negligence or willful misconduct or
breach of any representation or warranty of DST hereunder.
D. EXCEPT FOR VIOLATIONS OF SECTION 23, IN NO EVENT AND UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY TO THIS AGREEMENT BE LIABLE TO
ANYONE, INCLUDING, WITHOUT LIMITATION TO THE OTHER PARTY, FOR
CONSEQUENTIAL DAMAGES FOR ANY ACT OR FAILURE TO ACT UNDER ANY
PROVISION OF THIS AGREEMENT EVEN IF ADVISED OF THE POSSIBILITY
THEREOF.
E. Promptly after receipt by an indemnified person of notice of the
commencement of any action, such indemnified person will, if a
claim in respect thereto is to be made against an indemnifying
party hereunder, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the
indemnifying party will not relieve an indemnifying party from
any liability that it may have to any indemnified person for
contribution or otherwise under the indemnity agreement contained
herein except to the extent it is prejudiced as a proximate
result of such failure to timely notify. In case any such action
is brought against any indemnified person and such indemnified
person seeks or intends to seek indemnity from an indemnifying
party, the indemnifying party will be entitled to participate in,
and, to the extent that it may wish, assume the defense thereof
(in its own name or in the name and on behalf of any indemnified
party or both with counsel reasonably satisfactory to such
indemnified person); provided, however, if the defendants in any
such action include both the indemnified person and an
indemnifying party and the indemnified person shall have
reasonably concluded that there may be a conflict between the
positions of the indemnified person and an indemnifying party in
conducting the defense of any such action or that there may be
legal defenses available to it and/or other indemnified persons
which are inconsistent with those available to an indemnifying
party, the indemnified person or indemnified persons shall have
the right to select one separate counsel (in addition to local
counsel) to assume such legal defense and to otherwise
participate in the defense of such action on behalf of such
indemnified person or indemnified persons at such indemnified
party's sole expense. Upon receipt of notice from an
indemnifying party to such indemnified person of its election so
to assume the defense of such action and approval by the
indemnified person of counsel, which approval shall not be
unreasonably withheld (and any disapproval shall be accompanied
by a written statement of the reasons therefor), the indemnifying
party will not be liable to such indemnified person hereunder for
any legal or other expenses subsequently incurred by such
indemnified person in connection with the defense thereof. An
indemnifying party will not settle or compromise or consent to
the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether
or not the indemnified persons are actual or potential parties to
such claim, action, suit or proceeding) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified person from all liability arising out of such claim,
action, suit or proceeding. An indemnified party will not,
without the prior written consent of the indemnifying party
settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution
may be sought hereunder. If it does so, it waives its right to
indemnification therefor.
9. Certain Covenants of DST and the Fund.
A. All requisite steps will be taken by the Fund from time to time
when and as necessary to register the Fund's shares for sale in
all states in which the Fund's shares shall at the time be
offered for sale and require registration. If at any time the
Fund will receive notice of any stop order or other proceeding in
any such state affecting such registration or the sale of the
Fund's shares, or of any stop order or other proceeding under the
federal securities laws affecting the sale of the Fund's shares,
the Fund will give prompt notice thereof to DST.
B. DST hereby agrees to perform such transfer agency functions as
are set forth in Section 4.D. above and establish and maintain
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 financial information reasonably requested by the Fund.
The annual financial statements will be certified by DST's
certified public accountants.
E. DST represents and agrees that it will use its reasonable efforts
to keep current on the trends of the investment company industry
relating to shareholder services and will use its reasonable
efforts to continue to modernize and improve.
F. DST will permit the Fund and its authorized representatives to
make periodic inspections of its operations as such would involve
the Fund at reasonable times during business hours.
G. DST agrees to use its reasonable efforts to provide in Kansas
City at the Fund's expense two (2) man weeks of training for the
Fund's personnel in connection with use and operation of the
TA2000 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 an additional two (2) man weeks of training at the Fund's
facility for the Fund's personnel in connection with the
conversion to the TA2000 System. Reasonable travel, per diem and
reimbursable expenses incurred by DST personnel in connection
with and during training at the Fund's facility or in connection
with the conversion shall be borne by the Fund.
10. Recapitalization or Readjustment.
In case of any recapitalization, readjustment or other change in the
capital structure of 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. Stock Certificates.
The Fund will furnish DST with a sufficient supply of blank stock
certificates and from time to time will renew such supply upon the
request of DST. Such certificates will be signed manually or by
facsimile signatures of the officers of the Fund authorized by law and
by bylaws to sign stock certificates, and if required, will bear the
corporate seal or facsimile thereof.
12. Death, Resignation or Removal of Signing Officer.
The Fund will file promptly with DST written notice of any change in
the officers authorized to sign stock certificates, written
instructions or requests, together with two signature cards bearing
the specimen signature of each newly authorized officer. In case any
officer of the Fund who will have signed manually or whose facsimile
signature will have been affixed to blank stock certificates will die,
resign, or be removed prior to the issuance of such certificates, DST
may issue or register such stock certificates as the stock
certificates of the Fund notwithstanding such death, resignation, or
removal, until specifically directed to the contrary by the Fund in
writing. In the absence of such direction, the Fund will file
promptly with DST such approval, adoption, or ratification as may be
required by law.
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.
14. Instructions, Opinion of Counsel and Signatures.
At any time DST may apply to any person authorized by the Fund to give
instructions to DST, and may with the approval of a Fund officer
consult with legal counsel for the Fund, or DST's own legal counsel at
the expense of 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. 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 or software) or communication service;
inability to obtain labor, material, equipment or transportation,
or a delay in mails; governmental or exchange action, statute,
ordinance, rulings, regulations or direction; war, strike, riot,
emergency, civil disturbance, terrorism, vandalism, explosions,
labor disputes, freezes, floods, fires, tornados, acts of God or
public enemy, revolutions, or insurrection; or any other cause,
contingency, circumstance or delay not subject to DST's
reasonable control which prevents or hinders DST's performance
hereunder.
B. DST currently maintains an agreement with a third party whereby
DST is to be permitted to use on a "shared use" basis a "hot
site" (the "Recovery Facility") maintained by such party in event
of a disaster rendering the DST Facilities inoperable. DST has
developed and is continually revising a business contingency plan
(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
would, in event of a disaster rendering the DST Facilities
inoperable, use reasonable efforts to convert the TA2000 System
containing the designated the Fund data to the computers at the
Recovery Facility in accordance with the then current Business
Contingency Plan.
C. DST also currently maintains, separate from the area in which the
operations which provides the services to the Fund hereunder are
located, a Crisis Management Center consisting of phones,
computers and the other equipment necessary to operate a full
service transfer agency business in the event one of its
operations areas is rendered inoperable. The transfer of
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.
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, including by way of example and not limitation
Section 17Ad-7(g) thereof. 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. DST will make original issues of stock certificates upon written
request of an officer of the Fund and upon being furnished with a
certified copy of a resolution of the Board of Directors
authorizing such original issue, an opinion of counsel as
outlined in subparagraphs 1.D. and G. of this Agreement, any
documents required by Sections 5. or 10. of this Agreement, and
necessary funds for the payment of any original issue tax.
B. Before making any original issue of certificates the Fund will
furnish DST with sufficient funds to pay all required taxes on
the original issue of the stock, if any. The Fund will furnish
DST such evidence as may be required by DST to show the actual
value of the stock. If no taxes are payable DST will be
furnished with an opinion of outside counsel to that effect.
C. Shares of stock will be transferred and new certificates issued
in transfer, or shares of stock accepted for redemption and funds
remitted therefor, or book entry transfer be effected, upon
surrender of the old certificates in form or receipt by DST of
instructions deemed by DST properly endorsed for transfer or
redemption accompanied by such documents as DST may deem
necessary to evidence the authority of the person making the
transfer or redemption. DST reserves the right to refuse to
transfer or redeem shares until it is satisfied that the
endorsement or signature on the certificate or any other document
is valid and genuine, and for that purpose it may require a
guaranty of signature in accordance with the Signature Guarantee
Procedures. DST also reserves the right to refuse to transfer or
redeem shares until it is satisfied that the requested transfer
or redemption is legally authorized, and it will incur no
liability for the refusal in good faith to make transfers or
redemptions which, in its judgment, are improper or unauthorized.
DST may, in effecting transfers or redemptions, rely upon the
Procedures, Simplification 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.
D. When mail is used for delivery of stock certificates, DST will
forward stock certificates in "nonnegotiable" form by first class
or registered mail and stock certificates in "negotiable" form by
registered mail, all such mail deliveries to be covered while in
transit to the addressee by insurance arranged for by DST.
E. DST will issue and mail subscription warrants, certificates
representing stock dividends, exchanges or split ups, or act as
Conversion Agent upon receiving written instructions from any
officer of the Fund and such other documents as DST deems
necessary.
F. DST will issue, transfer, and split up certificates and will
issue certificates of stock representing full shares upon
surrender of scrip certificates aggregating one full share or
more when presented to DST for that purpose upon receiving
written instructions from an officer of the Fund and such other
documents as DST may deem necessary.
G. DST may issue new certificates in place of certificates
represented to have been lost, destroyed, stolen or otherwise
wrongfully taken upon receiving instructions from the Fund and
indemnity satisfactory to DST and the Fund, and may issue new
certificates in exchange for, and upon surrender of, mutilated
certificates. Such instructions from the Fund will be in such
form as will be approved by the Board of Directors of the Fund
and will be in accordance with the provisions of law and the
bylaws of the Fund governing such matter.
H. DST will 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.
I. 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.
J. 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.
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
responsibility and liability therefor and is hereby indemnified
and held harmless against any liability therefrom and in the same
manner and degree as provided for in Section 8 hereof.
C. Initially the Fund or its designees shall be responsible for the
following: [LIST RESPONSIBILITIES OR DELETE AS APPROPRIATE.]
(i) answer and respond to phone calls from shareholders and
broker-dealers, and (ii) scan items into DST's AWDTM System as
such calls or items are received by the Fund, and (iii) enter and
confirm wire order trades.
22. Termination of Agreement.
A. This Agreement shall be in effect for an initial period of one
(1) year and thereafter may be terminated by either party upon
receipt of one (1) year's written notice from the other party,
provided, however, that the effective date of any termination
shall not occur during the period from December 15 through March
30 of any year to avoid adversely impacting year end.
B. Each party, in addition to any other rights and remedies, shall
have the right to terminate this Agreement forthwith upon the
occurrence at any time of any of the following events with
respect to the other party:
(1) The bankruptcy of the other party or its assigns or the
appointment of a receiver for the other party or its
assigns; or
(2) Failure by the other party or its assigns to perform its
duties in accordance with the Agreement, which failure
materially adversely affects the business operations of the
first party and which failure continues for thirty (30) days
after receipt of written notice from the first party.
C. In the event of termination, the Fund will promptly pay DST all
amounts due to DST hereunder. In addition, if this Agreement is
terminated by the Fund for any reason other than those set forth
in Section 22.B. hereof, then the Fund shall pay to DST a
termination fee equal to the lesser of (i) the aggregate of the
fees charged to the Fund during the previous six (6) calendar
months preceding receipt of the notice or (ii) the average
monthly fee over the preceding six (6) months times the number of
months remaining in the then current term after termination. If
the Fund shall not have been billed for six (6) months before
termination, the average monthly fee shall be calculated by
dividing the aggregate fees charged to the Fund during whatever
period it was billed by the number of months in that period and
that average monthly fee shall be multiplied by six (6) in order
to determine the aggregate fees in subparagraph 22.C.(i). In any
event, the effective date of any deconversion as a result of
termination hereof shall not occur during the period from
December 15th through March 30th of any year to avoid adversely
impacting year end.
D. In the event of termination, DST will use its reasonable efforts
to transfer the records of the Fund to the designated successor
transfer agent, to provide reasonable assistance to the Fund and
its designated successor transfer agent, and to provide other
information relating to its services provided hereunder (subject
to the recompense of DST for such assistance at its standard
rates and fees for personnel then in effect at that time);
provided, however, as used herein "reasonable assistance" and
"other information" shall not include assisting any new service
or system provider to modify, alter, enhance, or improve its
system or to improve, enhance, or alter its current system, or to
provide any new, functionality or to require DST to disclose any
DST Confidential Information, as hereinafter defined, or any
information which is otherwise confidential to DST.
23. Confidentiality.
A. DST agrees 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 agrees to keep confidential all financial statements and
other financial records received from DST, the terms and
provisions of this Agreement, all accountant's reports relating
to DST, and all manuals, systems and other technical information
and data, not publicly disclosed, relating to DST's operations
and programs furnished to it by DST pursuant to this Agreement
and will not disclose the same to any person except at the
request or with the consent of DST.
C. (1) The 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 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 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.
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.
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.
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.
L. This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement, draft or
agreement or proposal with respect to the subject matter hereof,
whether oral or written, and this Agreement may not be modified
except by written instrument executed by both parties.
M. All notices to be given hereunder shall be deemed properly given
if delivered in person or if sent by U.S. mail, first class,
postage prepaid, or if sent by facsimile and thereafter confirmed
by mail as follows:
If to DST:
DST Systems, Inc.
0000 Xxxxxxxx, 0xx Xx.
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Senior Vice President-Full Service
Facsimile No.: 000-000-0000
With a copy of non-operational notices to:
DST Systems, Inc.
000 X. 00xx Xx., 0xx Xx.
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Legal Department
Facsimile No.: 000-000-0000
If to the Fund:
Baron Capital Funds Trust
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
Facsimile Number: 212-583-2048
or to such other address as shall have been specified in writing
by the party to whom such notice is to be given.
N. The representations and warranties contained herein shall survive
the execution of this Agreement. The representations and
warranties contained herein and the provisions of Section 8
hereof shall survive the termination of the Agreement and the
performance of services hereunder until any statute of
limitations applicable to the matter at issues shall have
expired.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officers, to be effective as
of the day and year first above written.
DST SYSTEMS, INC.
By:________________________________
Title:_____________________________
BARON CAPITAL FUNDS TRUST
By: /s/ Xxxxx X. Xxxx
--------------------------------
Xxxxx X. Xxxx
Title: Chief Financial Officer
EXHIBIT A
REMOTE SERVICE
FEE SCHEDULE
Fee Increases
The fees and charges set forth in this Exhibit A shall increase annually
upon each anniversary of this Agreement over the fees and charges during
the prior 12 months in an amount equal to the annual percentage of change
in the Consumer Price Index in the Kansas City, Missouri-Kansas Standard
Metropolitan Statistical Area, All Items, Base 1982-1984=100, as last
reported by the U.S. Bureau of Labor Statistics for the 12 calendar months
immediately preceding such anniversary. In the event that this Agreement
was not signed as of the first day of the month, the fees and charges
increase shall be effective as of the first day of the month immediately
following the month during which the anniversary occurred.
Open and Closed Accounts Fees
The monthly fee for an open account shall be charged in the month during
which an account is opened through the month in which such account is
closed. The monthly fee for a closed account shall be charged in the month
following the month during which such account is closed and shall cease to
be charged in the month following the Purge Date, as hereinafter defined.
The "Purge Date" for any year shall be any day after June 1st of that year,
as selected by the Fund, provided that written notification is presented to
DST at least forty-five (45) days prior to the Purge Date.
Reimbursable Expenses
Forms
Postage (to be paid in advance if so requested)
Mailing Services
Computer Hardware and Software - specific to Fund or installed at
remote site at Fund's direction
Telecommunications Equipment and Lines/Long Distance Charges
Magnetic Tapes, Reels or Cartridges
Magnetic Tape Handling Charges
Microfiche/Microfilm
Freight Charges
Printing
Bank Wire and ACH Charges
Proxy Processing - per proxy mailed
not including postage
Includes: Proxy Card
Printing
Outgoing Envelope
Return Envelope
Tabulation and Certification
T.I.N. Certification (W-8 & W-9)
(Postage associated with the return
envelope is included)
N.S.C.C. Communications Charge Currently $1,200.00
(Fund/Serv and Networking) per Fund per Year
Off-site Record Storage
Second Site Disaster Currently $.07
Backup Fee (per account) (guaranteed not to
exceed $.11 through
12/31/97)
Transmission of Statement Data for Currently $.035/per
Remote Processing record
Travel, Per Diem and other Billables
Incurred by DST personnel traveling to,
at and from the Fund at the request
of the Fund
EXHIBIT B
AUTHORIZED PERSONNEL
Pursuant to Section 8.A. of the Agency Agreement between Baron Capital
Funds Trust and all series thereof (the "Fund") and DST (the "Agreement"),
the Fund authorizes the following Fund personnel to provide instructions to
DST, and receive inquiries from DST in connection with the Agreement:
Name Title
---- -----
Xxxxxx Xxxxx President
Xxxxx Xxxxxx Senior Vice President
Xxxxx Xxxx Treasurer
Xxxxx Xxxxxxxxx Secretary
This Exhibit may be revised by the Fund by providing DST with a substitute
Exhibit B. Any such substitute Exhibit B shall become effective twenty-
four (24) hours after DST's receipt of the document and shall be
incorporated into the Agreement.
ACKNOWLEDGMENT OF RECEIPT:
DST SYSTEMS, INC. FUND
By:___________________________ By: /s/ Xxxxx X. Xxxx
---------------------------
Xxxxx X. Xxxx
Title:________________________ Title: Chief Financial Officer
Date:_________________________ Date: June 23, 1998
2. Representations and Warranties
G. It is the lawful user of the computer software and hardware used
in providing services hereunder, such computer software and
hardware have been lawfully acquired by it, and it has the right
to permit Fund access to use of such computer software and
hardware.
8. Indemnification
C. DST will indemnify and hold Fund harmless against, and DST will
at its own expense defend any action brought against Fund to the
extent such action is based upon, any claim that any aspect of
the TA2000 System used within the scope of this Agreement
infringes any U.S. patent, copyright or trade secret; provided,
that DST is immediately notified in writing of any such claim
(but any delay or failure by any User to give notice of such
claim to DST shall relieve DST of its liability hereunder only to
the extent that DST is prejudiced thereby); and provided, further
that DST shall have the exclusive right to control such defense
and settle such claim; provided that in no event may DST settle
any such claim, lawsuit or proceeding in a manner which binds
Fund to liability without Fund's consent. In no event shall Fund
settle any such claim, lawsuit or proceeding without DST's prior
written approval. In the event of any such claim, litigation or
threat thereof, DST may, in its sole and absolute discretion,
either:
(i) Procure for Fund a right to continue to use the
TA2000 System at no additional charge to Fund; or
(ii) Replace or modify the TA2000 System so as to be
non-infringing without eliminating or diminishing the
services provided hereunder at no additional charge to Fund;
or
(iii) Only if (i) or (ii) cannot be accomplished on
commercially reasonable terms, terminate this Agreement
without any further liability to Fund.
