AGENCY AGREEMENT
THIS AGREEMENT made the 3rd day of July, 1996, by and between THE OMNI
INVESTMENT FUND, a business trust existing under the laws of the Commonwealth
of Massachusetts, having its principal place of business at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Trust"), 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 Trust 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 Trust, there will be filed with DST the
following documents:
A. A certified copy of the resolutions of the Board of Trustees of
the Trust 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 Trust;
B. A certified copy of the Agreement and Declaration of Trust of the
Trust and all amendments thereto;
C. A certified copy of the Bylaws of the Trust;
D. Copies of Registration Statements and amendments thereto, filed
with the Securities and Exchange Commission;
E. Specimens of the signatures of the officers of the Trust
authorized to sign stock certificates and individuals authorized to sign
written instructions and requests;
F. An opinion of counsel for the Trust with respect to:
(1) The Trust's organization and existence under the laws
of its state of organization,
(2) The status of all shares of stock of the Trust 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 Trust 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 TRUST.
The Trust 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 Commonwealth of Massachusetts.
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 Trust being offered for sale.
D. All requisite steps have been and will continue to be taken to
register the Trust'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 Trust is empowered under applicable laws and by its
Agreement and Declaration of Trust and Bylaws to enter into and
perform this Agreement.
4. SCOPE OF APPOINTMENT.
A. Subject to the conditions set forth in this Agreement, the
Trust hereby appoints DST as Transfer Agent and Dividend
Disbursing Agent.
B. DST hereby accepts such appointment and agrees that it will act
as the Trust's Transfer Agent and Dividend Disbursing Agent.
DST agrees that it will also act as agent in connection with
the Trust's periodic withdrawal payment accounts and other open
accounts or similar plans for shareholders, if any.
C. The Trust agrees to deliver to DST in Kansas City, Missouri, as
soon as they are available, all of its shareholder account
records. DST shall have no responsibility or liability for the
contents of shareholder account records not received by DST,
nor for Adverse Consequences, as hereinafter defined, directly
or indirectly arising out of or resulting from or contributed
to by the absence of such records.
D. DST, utilizing TA2000 (TRADEMARK), DST's computerized data
processing system for securityholder accounting (the "TA2000
(TRADEMARK) System"), will perform the following services as
transfer and dividend disbursing agent for the Trust, and as
agent of the Trust for shareholder accounts thereof, in a
timely manner: issuing (including countersigning), transferring
and canceling share certificates; maintaining all shareholder
accounts; providing transaction journals; preparing shareholder
meeting lists, mailing proxies and proxy materials, receiving
and tabulating proxies, certifying the shareholder votes of the
Trust; 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
Trust and other confirmable transactions in shareholders'
accounts; recording reinvestment of dividends and distributions
in shares of the Trust; providing or making available on-line
daily and monthly reports as provided by the TA2000 (TRADEMARK)
System and as requested by the Trust or its management company;
maintaining those records necessary to carry out DST's duties
hereunder, including all information reasonably required by the
Trust to account for all transactions in the Trust shares,
calculating the appropriate sales charge with respect to each
purchase of the Trust shares as set forth in the prospectus for
the Trust, determining the portion of each sales charge payable
to the dealer participating in a sale in accordance with
schedules delivered to DST by the Trust'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 Trust's
instructions; and processing, generally on the date of receipt,
purchases or redemptions or instructions to settle any mail or
wire order purchases or redemptions received in proper order as
set forth in the prospectus, rejecting promptly any requests not
received in proper order (as defined by the Trust or its
agents), and causing exchanges of shares to be executed in
accordance with the Trust's instructions and prospectus and the
general exchange privilege application.
E. At the request of Trust, DST shall use reasonable efforts to
provide the services set forth in Section 4.D. other than
through DST's usual methods of and procedures to utilize the
TA2000 (TRADEMARK) System, that is by using methods and
procedures other than those usually employed by DST to perform
services requiring more manual intervention by DST, either in
the entry of data or in the modification or amendment of reports
generated by the TA2000 (TRADEMARK) System, or which provides
information to DST after the commencement of the nightly
processing cycle of the TA2000 (TRADEMARK) System, thereby
decreasing the effective time for performance by DST (the
"Exception Services").
F. The Trust shall have the right to add new series to the TA2000
(TRADEMARK) 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.
G. DST shall use reasonable efforts to provide, reasonably promptly
under the circumstances, the same services with respect to any
new, additional functions or features or any changes or
improvements to existing functions or features as provided for in
the Trust's instructions, prospectus or application as amended
from time to time, for the Trust provided (i) DST is advised in
advance by the Trust of any changes therein and (ii) the TA2000
(TRADEMARK) 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
(TRADEMARK) System or the operations as requested by the Trust
requires an enhancement or modification to the TA2000 (TRADEMARK)
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 (TRADEMARK) 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 Trust of the
amount of such increase and if the Trust elects to utilize such
function, feature or service, DST shall be entitled to increase
its fees by the amount of the increase in costs. In no event
shall DST be responsible for or liable to provide any additional
function, feature, improvement or change in method of operation
until it has consented thereto in writing.
5. LIMIT OF AUTHORITY.
Unless otherwise expressly limited by the resolution of appointment or by
subsequent action by the Trust, 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 Trust will file with DST:
A. If the appointment of DST was theretofore expressly limited, a
certified copy of a resolution of the Board of Trustees of the Trust
increasing the authority of DST;
B. A certified copy of the amendment to the Agreement and Declaration of
Trust of the Trust 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 Trust stating:
(1) The status of the additional shares of stock of the Trust 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 Trust will pay to DST from time to time
a reasonable compensation for all services rendered as Agent, and
also, all its reasonable billable expenses, charges, counsel fees, and
other disbursements ("Compensation and Expenses") incurred in
connection with the agency. Such compensation is set forth in a
separate schedule agreed to by the Trust and DST, a copy of which is
attached hereto as Exhibit A. If the Trust has not paid such
Compensation and Expenses to DST within a reasonable time, DST may
charge against any monies held under this Agreement, the amount of any
Compensation and/or Expenses for which it shall be entitled to
reimbursement under this Agreement.
B. The Trust 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 Technologies SRI Group, Inc.),
magnetic tapes, reels or cartridges (if sent to the Trust or to a
third party at the Trust'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 Trust's request at the Trust's or a third
party's premises, telecommunications equipment,
telephone/telecommunication lines between the Trust 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 Trust 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 Trust will be promptly reimbursed by the trust.
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
Trust (the "Due Date"). The Trust 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 Trust 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 Trust'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 Trust 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 Trust 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) In 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 (TRADEMARK)
System used by the Trust which features are not consistent with
the Trust'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 Trust 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 Trust'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 Trust of an increase in fees or charges under
subparagraphs (3) and (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
Trust 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 and the Trust's records on the TA2000(TRADEMARK)
System created by DST reflect the orders, instructions, and other
information received by DST from broker-dealers, shareholders, the
Trust, the Trust's principal underwriter, distributor, manager or
investment adviser;
B. That shareholder lists, shareholder account verifications,
confirmations and other shareholder account information to be produced
from its records or data be available and accurately reflect the data
in the Trust's records on the TA2000 (TRADEMARK) System;
C. The accurate and timely issuance of dividend and distribution checks
in accordance with instructions and approvals received from the Trust
and the data in the Trust's records on the TA2000 (TRADEMARK) System;
D. That redemption transactions and payments be effected timely, under
normal circumstances on the day of receipt, and accurately in
accordance with redemption instructions received by DST from dealers,
shareholders, or representatives of the Trust or the Trust's principal
underwriter, distributor, investment adviser or manager and the data
in the Trust's records on the TA2000 (TRADEMARK) System;
E. The deposit daily in the Trust'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 percent)
responsibility for losses resulting from "as ofs" due to clerical
errors or misinterpretations of shareholder instructions, but DST will
discuss with the Trust 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 Trust where
DST in its discretion deems that to be appropriate;
G. The requiring of proper forms of instructions, signatures and
Signature guarantees and any necessary documents supporting the
opening of shareholder accounts, transfers, redemptions and other
shareholder account transactions, all in conformance with DST's
present procedures as set forth in its Legal Manual, Third Party Check
Procedures, Checkwriting Draft Procedures, and Signature Guarantee
Procedures (collectively the "Procedures") with such changes or
deviations therefrom as may be from time to time required or approved
by the Trust, 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 Trust'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 misfeasance,
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 DST-unaffiliated third parties), reckless
disregard of the performance of its duties, or gross negligence on its
part, DST shall not be liable for any action taken, suffered, or
omitted by it or for any error of judgment or mistake of law 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 Trust and reviewed and approved by the
Trust's counsel, as amended from time to time with approval of DST's
counsel, or for any deviation therefrom approved by the Trust or DST
counsel.
B. DST shall not be responsible for, and the Trust shall indemnify and
hold DST harmless from and against, any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liability (the
"Adverse Consequences") 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
reasonable diligence;
(2) The Trust's refusal or failure to comply with the terms of this
Agreement, the Trust's negligence or willful. misconduct, or the
breach of any representation or warranty of the Trust hereunder;
(3) The good faith reliance on, or the carrying out of, any written
or oral instructions or requests of persons designated by the
Trust in writing (see Exhibit B) from time to time as authorized
to give instructions on its behalf or persons reasonably believed
by DST to be representatives of the Trust's investment adviser,
sponsor, principal underwriter, distributor or manager 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 Trust, its investment adviser, its sponsor, its
principal underwriter, its distributor or its manager;
(4) Defaults by dealers or shareowners with respect to payment for
share orders previously entered;
(5) The offer or sale of the Trust'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 Trust or of any officer of the
Trust that no offers or sales be input into the Trust's
securityholder records in or to residents of such state);
(6) The Trust's errors and mistakes in the use of the TA2000
(TRADEMARK) System, the data center, computer and related
equipment used to access the TA2000 (TRADEMARK) 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 Trust's records, shareholder
and other records, delivered to DST hereunder by the Trust or its
prior agent(s); and
(8) Actions or omissions to act by the Trust or agents set forth in
Section 8.A.(3) or otherwise designated by the Trust with respect
to duties assumed thereby as provided for in Section 21 hereof.
(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 Trust harmless from and against any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liability arising out of
or attributable to DST's failure to comply with the terms of, failure to
perform or to fulfill in accordance with the standard of care set forth in
Section 8.A. hereof, DST's duties and obligations under, or material breach of
any representation or warranty of DST under, this Agreement.
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 TRUST.
A. All requisite steps will be taken by the Trust from time to time when
and as necessary to register the Trust's shares for sale in all states
in which the Trust's shares shall at the time be offered for sale and
require registration. If at any time the Trust will receive notice of
any stop order or other proceeding in any such state affecting such
registration or the sale of the Trust's shares, or of any stop order
or other proceeding under the federal securities laws affecting the
sale of the Trust's shares, the Trust will give prompt notice thereof
to DST.
B. DST hereby agrees to perform such transfer agency functions as are set
forth in Sections 4.D. and 4.E. of this Agreement and to establish and
maintain facilities and procedures reasonably acceptable to the Trust
for safekeeping of check forms, and facsimile signature imprinting
devices, if any; and for the preparation or use, and for keeping
account of, such 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 Trust and will be
preserved and will be surrendered promptly to the Trust on request.
D. DST agrees to furnish the Trust annual reports of its financial
condition, consisting of a balance sheet, earnings statement and any
other publicly available financial information reasonably requested by
the Trust. The annual financial statements will be certified by DST's
certified public accountants.
E. DST represents and agrees that it will use reasonable efforts to keep
current on the trends of the investment company industry relating to
shareholder services and to continue to modernize and improve.
F. DST will permit the Trust and its authorized representatives to make
periodic inspections of its operations as such would involve the Trust
at reasonable times during business hours.
G. DST agrees to use its best efforts to provide in Kansas City at the
Trust's expense two (2) man weeks of training for the Trust's
personnel in connection with use and operation of the TA2000
(TRADEMARK) System. All travel and reimbursable expenses incurred by
the Trust's personnel in connection with and during training at DST's
Facility shall be borne by the Trust. At the Trust's option and
expense, DST also agrees to provide an additional two (2) man weeks of
training at the Trust's facility for the Trust's personnel in
connection with the conversion to the TA2000 (TRADEMARK) System.
Reasonable travel, per them and reimbursable expenses incurred by DST
personnel in connection with and during training at the Trust's
facility or in connection with the conversion shall be borne by the
Trust.
10. RECAPITALIZATION OR READJUSTMENT.
In case of any recapitalization, readjustment or other change in the
capital structure of the Trust 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 Trust;
B. Certified copy of the amendment to the Agreement and Declaration of
Trust 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 Trustees of the Trust, with a certificate of the Clerk of the
Trust as to such approval;
E. Opinion of counsel for the Trust stating:
(1) The status of the shares of stock of the Trust 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 TRUST WILL NOT ISSUE STOCK CERTIFICATES.
12. DEATH, RESIGNATION OR REMOVAL OF SIGNING OFFICER.
The Trust 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 Trust 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 Trust notwithstanding such
death, resignation, or removal, until specifically directed to the
contrary by the Trust in writing. In the absence of such direction, the
Trust will file promptly with DST such approval, adoption, or ratification
as may be required by law.
13. FUTURE AMENDMENTS OF CHARTER AND BYLAWS.
The Trust will promptly file with DST copies of all material amendments to
its Agreement and Declaration of Trust 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 Trust to give
instructions to DST, and may with the approval of a Trust officer consult
with legal counsel for the Trust or its own legal counsel at the expense
of the Trust, 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 Trust. 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 Trust, 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, tornadoes, acts of God or public enemy,
revolutions, or insurrection; or any other cause, contingency,
circumstance or delay not subject to DST's reasonable control
which prevents or hinders DST's performance hereunder.
B. DST currently maintains an agreement with a third party whereby DST is
to be permitted to use on a "shared use" basis a "hot site" (the
"Recovery Facility") maintained by such party in event of a disaster
rendering the DST Facilities inoperable. DST has developed and is
continually revising a business contingency plan (the "Business
Contingency Plan") detailing which, how, when, and by whom data
maintained by DST at the DST Facilities will be installed and operated
at the Recovery Facility. Provided the Trust 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 (TRADEMARK) System containing the designated the
Trust 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 Trust 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. No guarantee can or is being made that such Crisis
Management Center includes enough equipment to fully support all DST
full service transfer agency activities. 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 Agreement and Declaration of Trust of the Trust
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 Agreement and Declaration of Trust 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 Trustees of the Trust, will be certified by the Clerk or an
Assistant Clerk of the Trust under the Trust'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 AND RECORDS.
DST may send periodically to the Trust, or to where designated by the
Clerk or an Assistant Clerk of the Trust, all books, documents, and
records no longer deemed needed for current purposes, upon the
understanding that such books, documents and records will be maintained by
the Trust 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 Trust 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 Trust and upon being furnished with a
certified copy of a resolution of the Board of Trustees authorizing
such original issue, an opinion of counsel as outlined in
subparagraphs LD. and G. of this Agreement, any documents required by
Sections 5. or 10. of this Agreement, and necessary Trusts for the
payment of any original issue tax.
B. Before making any original issue of certificates the Trust will
furnish DST with sufficient funds to pay all required taxes on the
original issue of the stock, if any. The Trust 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. Registered ownership of shares of stock will be transferred and the
registration of new unissued shares will be effectuated, or unissued
shares of stock accepted for redemption and payment remitted therefor,
or book entry transfer be effected, upon receipt by DST of
instructions deemed by DST properly endorsed Tor transfer or
redemption accompanied by such documents as DST may deem necessary to
evidence the authority of the person making the transfer or
redemption. DST reserves the right to refuse to transfer or redeem
shares until it is satisfied that the endorsement or signature on the
certificate or any other document is valid and genuine, and for that
purpose it may require a guaranty of signature in accordance with the
Signature Guarantee Procedures. DST also reserves the right to refuse
to transfer or redeem shares until it is satisfied that the requested
transfer or redemption is legally authorized, and it will incur no
liability for the refusal in good faith to make transfers or
redemptions which, in its judgment, are improper or unauthorized. DST
may, in effecting transfers or redemptions, rely upon Simplification
Acts or other statutes which protect it and the Trust 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. DST will issue and mail subscription warrants, exchanges or split ups,
or act as Conversion Agent upon receiving written instructions from
any officer of the Trust and such other documents as DST deems
necessary.
E. DST will supply a shareholder's list to the Trust for its annual
meeting upon receiving a request from an officer of the Trust. It
will also, at the expense of the Trust, supply lists at such other
times as may be requested by an officer of the Trust.
F. Upon receipt of written instructions of an officer of the Trust, DST
will, at the expense of the Trust, address and mail notices to
shareholders.
G. In case of any request or demand for the inspection of the stock books
of the Trust or any other books in the possession of DST, DST will
endeavor to notify the Trust 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 Trust, provide a special form of check
containing the imprint of any device or other matter desired by the
Trust. Said checks must, however, be of a form and size convenient
for use by DST.
B. If the Trust 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 Trust.
C. If the Trust 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
Trust; 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
Trust.
D. DST shall establish and maintain on behalf of the Trust one or more
deposit accounts as Agent for the Trust, 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 TRUST OR AGENTS DESIGNATED BY THE TRUST.
A. The Trust 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
(TRADEMARK) System and assigning social codes and Taxpayer
Identification Number codes thereof, and disbursing monies of the
Trust, said assumption to be embodied in writing to be signed by both
parties.
B. To the extent the Trust 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 Trust or its designees shall be responsible for
answering and responding to phone calls from shareholders and
broker-dealers, including without limitation forwarding
"transaction-related" calls to DST via speed-dialing or any other
mutually satisfactory means.
22. TERMINATION OF AGREEMENT.
A. This Agreement shall be in effect for an initial period of five (5)
years and thereafter may be terminated by either party upon receipt of
one (1) year's written notice from the other party, provided, however,
that the effective date of any termination shall not occur during the
period from December 15 through March 30 of any year to avoid
adversely impacting year end.
B. Each party, in addition to any other rights and remedies, shall have
the right to terminate this Agreement forthwith upon the occurrence at
any time of any of the following events with respect to the other
party:
(1) The bankruptcy of the other party or its assigns or the
appointment of a receiver for the other party or its assigns;
(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 Trust will promptly pay DST all
amounts due to DST hereunder. In addition, if this Agreement is
terminated by the Trust for any reason other than those set forth in
Sections 22.B. hereof, then the Trust shall pay to DST a termination
fee equal to the lesser of (i) the aggregate of the fees charged to
the Trust 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 Trust 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
Trust 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 reasonable efforts to
transfer the records of the Trust to the designated successor transfer
agent, to provide reasonable assistance to the Trust 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 Trust or its shareholders or shareholder accounts ("Trust
Confidential Information") and will not disclose the same to any
person except at the request or with the consent of the Trust or, with
respect to information pertaining to securityholder accounts, pursuant
to subpoena.
B. The Trust agrees to keep confidential all financial statements and
other financial records (other than statements and records relating
solely to the Trust's business dealings with DST) and all manuals,
systems and other technical information and data, not publicly
disclosed, relating to DST's operations and programs furnished to it
by DST pursuant to this Agreement and will not disclose the same to
any person except at the request or with the consent of DST.
C. (1) The Trust acknowledges that DST has proprietary rights in and to
the TA2000 (TRADEMARK) 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 (TRADEMARK) System and any other
DST programs, data bases, supporting documentation, or procedures
(collectively "DST Confidential Information") which the Trust's
access to the TA2000 (TRADEMARK) System or computer hardware or
software may permit the Trust 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 Trust agrees to maintain the confidentiality of the
DST Confidential Information.
(2) DST and the Trust each acknowledges that any unauthorized use,
misuse, disclosure or taking of Confidential Information of the
other 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. DST and the Trust each will advise all of its employees and
agents who have access to any Confidential Information of the
other or to any computer equipment capable of accessing DST or
DST hardware or software of the foregoing.
(3) DST and the Trust each acknowledges that disclosure of the
other's Confidential Information may give rise to an irreparable
injury to the other inadequately compensable in damages.
Accordingly, the party whose Confidential Information is being,
has been or will be disclosed 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
DST and the Trust each consents, upon a proper showing that
disclosure of Confidential Information of the other has occurred
or is reasonably likely to occur in the future based on current
conditions, 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 Trust
without additional cost all modifications, enhancements, or changes
which DST may make to the TA2000 (TRADEMARK) System in the normal
course of its business and which are applicable to functions and
features offered by the Trust, 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 Trust 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 Trust 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 Trust in using
or employing the TA2000 (TRADEMARK) System or DST Facilities hereunder
or the reports to be generated by such system and facilities
hereunder, unless the Trust is given thirty (30) days prior notice to
allow the Trust to change its procedures and DST provides the Trust
with revised operating procedures and controls.
C. All enhancements, improvements, changes, modifications or new features
added to the TA2000 (TRADEMARK) 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 delivery
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 Trust is comprised of more than one Portfolio, Fund or Series
(each a "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 Trust 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 Trust's Agreement and
Declaration of Trust 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 Trust by the undersigned
duly authorized representative of the Trust 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 Trust and
shall not be binding upon any trustee, officer or shareholder of the
Trust 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. Except as otherwise provided in Section 27.N. of this Agreement, this
Agreement may not be assigned by either DST or the Trust without the
prior written consent of the other party.
I. Neither the execution nor performance of this Agreement shall be
deemed to create a partnership or joint venture by and between the
Trust 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 Trust. This Agreement is between DST and
the Trust 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 tern-is, 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, consents and other communications to be given hereunder
shall be in writing and 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.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President-Full Service
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy of non-operational notices to:
DST Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trust:
The Omni Investment Fund
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as shall have been specified in writing by
the party to whom such notice is to be given.
N. This Agreement may be assigned by DST to Investors Fiduciary Trust
Company ("IFTC"), a wholly-owned subsidiary of State Street Bank and
Trust Company, by providing to the Trust a written notice of
assignment including IFTC's written acceptance of all of DST's rights
and obligations under this Agreement. In event of such assignment,
"DST Systems, Inc." and "DST" wherever they appear- in the Agreement
shall be deemed, and it shall be as if they were, deleted and replaced
by "Investors Fiduciary Trust Company" and "IFTC," respectively.
Notwithstanding anything herein to the contrary, the Trust
acknowledges that, in the event of the foregoing, IFTC shall be
entitled to, and will, subcontract certain of IFTC's obligations
hereunder to DST and that the Trust's indemnifications hereunder of
IFTC shall extend to and include DST.
0. 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:Vice President and
Chief Financial Officer
THE OMNI INVESTMENT FUND
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:Treasurer
EXHIBIT A
FEE SCHEDULE, p.1
DST SYSTEMS, INC.
OMNI FUND
TRANSFER AGENCY FEE SCHEDULE
MARCH 7, 1996
A. ACCOUNT FEES -FN1
OPEN ACCOUNTS:
February 1, 1996 through January 31, 1997: $15.05 per account per year
February 1, 1997 through January 31, 1998: $15.65 per account per year
CLOSED ACCOUNTS:
February 1, 1996 through January 31, 1997: $3.00 per account per year
February 1, 1997 through January 31, 1998: $3.05 per account per year
B. DST PROCESSED TRANSACTION FEES
NEW ACCOUNT SET UP (OVER 15 PERCENT ANNUAL GROWTH):
Manual:
February 1, 1996 through January 31, 1997: $2.50
February 1, 1997 through January 31, 1998: $2.75
Automated/Uploaded New Account Set Up (Useable): $1.75
NSCC New Account Set Up: $1.50
SHAREHOLDER/BROKER DEALER CALLS (INBOUND/OUTBOUND):
Calls Answered Within 20 Seconds Standard:
February 1, 1996 through January 31, 1997: $1.75
February 1, 1997 through January 31, 1998: $2.00
----------------------------------------------------------------------------
FN1 - The foregoing account fees are subject to an annual minimum of
$33,000.00 in fees across the entire complex. Thus, if ▇▇▇▇▇▇ Associates,
Inc. becomes the principal investment adviser to the Fund, the minimum shall
not apply at any time the total account fees from the ▇▇▇▇▇▇ complex
exceeds $33,000.00.
EXHIBIT A
FEE SCHEDULE, p. 2
Calls Not Answered Within 20 Second Standard:
February 1, 1996 through January 31, 1997: $1.50
February 1, 1997 through January 31, 1998: $1.75
Confirmed Orders/Wire Orders/Omnibus Account Transactions:
February 1, 1996 through January 31, 1997: $2.80
February 1, 1997 through January 31, 1998: $2.90
Audio Response:
February 1, 1996 through January 31, 1997: $.20/call
February 1, 1997 through January 31, 1998: $.22/call
C. SHAREOWNER CHARGES
Fiduciary Trustee Fees:
IRAs/SEPs: $12.00 per account per year
Qualified Plans: $25.00 per social security number per plan
D. OPTIONAL SERVICES
Automated Financial Intermediary
Interface (Schwab) - (Note: To be
negotiated for additional interfaces): $600 per month
Asset Allocation: $2.40 per nucleus account per
year
Asset Reallocation: $.25 per nucleus account per
cycle
Contingent Deferred Sales
Charge/Sharelot Accounting: $1.85 per account per year
12b-1 Processing: $ .15 per open and closed
account per cycle
State Withholding: $2.00 per applicable account per
year
Fulfillment Calls: $2.35
*Sales and Management Information
Information System (▇▇▇▇▇):
Mainframe Hardcopy Reporting: $250 per month per applicable
portfolio
PC Based Remote ▇▇▇▇▇: $1,500 per month for the
relationship
Investor Facility: $2.40 per master account with
multiple linked accounts
per year
* Subject to change with 60 days prior notice.
PAGE
EXHIBIT A
FEE SCHEDULE, p.3
Average Cost System: $5,000 per year of history converted
$.25 per account per year
*Mainframe Programming:
Dedicated Programming:
Mainframe Programmer: $98,000 per year
Client Services
Technical Support: $62,000 per year
IWS/AWD Programming: $125,000 per year
On Request:
Mainframe Programmer: $75 per hour
Client Services
Technical Support: $55 per hour
IWS/AWD Programming: $100 per hour
*Business Analysis:
Senior Staff Support: $55 per hour
Staff Support: $35 per hour
Clerical Support: $28 per hour
Escheatment Costs: As Incurred
NOTES TO THE ABOVE FEE SCHEDULE
FEE INCREASES
The fees and charges set forth in this Exhibit A shall increase annually upon
each February 1st, commencing with the fees to be charged effective February
1, 1998, 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 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
Trust, provided that written notification is presented to DST at least
forty-five (45) days prior to the Purge Date.
* Subject to change with 60 days prior notice.
EXHIBIT A
FEE SCHEDULE, p. 4
REIMBURSABLE EXPENSES
Forms
Postage (to be paid in advance if so requested)
Outside Mailing Services
Computer Hardware
Telecommunications Equipment
Magnetic Tapes, Reels or Cartridges
Magnetic Tape Handling Charges
Microfiche/Microfilm
Freight Charges
Proxy Processing - per proxy mailed, not including postage - includes:
Proxy Card
Printing
Outgoing Envelope
Return Envelope
Tabulation
T.I.N. Certification (W-8 & W-9) - (Postage associated with return envelope
is included)
N.S.C.C. Communications Charge
(Trust/Serv and Networking): Currently $1,200.00 per Trust per Year
Off-site Record Storage:
Second-Site Disaster Currently $.07 (Guaranteed Not to
Backup Fee (Per Account) Exceed $.11 Through 12/31/97)
Transmission of Statement Data
for Remote Processing: Currently $.035 per record
Travel, Per Diem and Other Re-Billable
Expenses Incurred by DST Personnel
Traveling to, at and from the Trust at
the Request of the Trust:
EXHIBIT B
AUTHORIZED PERSONNEL
Pursuant to Section 8.A. of the Agency Agreement between The Omni Investment
Fund (the "Trust") and DST (the "Agreement"), the Trust authorizes the
following Trust personnel to provide instructions to DST, and receive
inquiries from DST in connection with the Agreement:
NAME TITLE
________________________________________ _______________________________
________________________________________ _______________________________
________________________________________ _______________________________
________________________________________ _______________________________
________________________________________ _______________________________
________________________________________ _______________________________
This Exhibit may be revised by the Trust 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. THE OMNI INVESTMENT FUND
By: By:
Title: Title:
Date: Date: