Exhibit 10.3.2
1992 AMENDMENT AGREEMENT
[THE PORTIONS OF THIS EXHIBIT MARKED BY AN ASTERISK ARE SUBJECT TO A
REQUEST FOR CONFIDENTIAL TREATMENT.]
This 1992 Amendment Agreement (this "Agreement") is deemed effective as
of January ____, 1991 among State Street Boston Corporation, a Massachusetts
bank holding company ("SSB"), State Street Bank and Trust Company, a
Massachusetts corporation (the "Bank"), DST Systems, Inc., a Missouri
corporation ("DST"), and Boston Financial Data Services, Inc., a Massachusetts
corporation ("BFDS"), and joined in as to Sections 3.2 and 3.3 by Vantage
Computer Systems, Inc., a Delaware corporation ("Vantage").
RECITALS
WHEREAS, SSB and DST have entered into the Joint Venture Agreement
dated as of July 1, 1974 (said Joint Venture Agreement, as in effect on the date
hereof, being hereinafter referred to as the "Joint Venture Agreement"),
pursuant to which (i) SSB and DST agreed to undertake a joint business venture
to provide, among other things, mutual fund transfer agency, recordkeeping and
shareholder services and related services (said business being hereinafter
referred to collectively as the "Business"), and (ii) BFDS was formed and
designated as the vehicle to conduct the Business;
WHEREAS, pursuant to the Joint Venture Agreement or in furtherance of
the Business, the parties hereto and/or their affiliates have entered into
related agreements, which include (i) The First Refusal Agreement dated as of
July 1, 1974 between SSB and DST (said First Refusal Agreement, as in effect on
the date hereof, being hereinafter referred to as the "First Refusal
Agreement"), (ii) the Data-Processing Support Agreement dated as of July 1, 1974
between DST and BFDS pertaining to DST's computer system for investment company
transfer agency, recordkeeping and related services (said Data-Processing
Support Agreement, as in effect on the date hereof, being hereinafter referred
to as the "Mutual Fund Data Processing Agreement"); (iii) the Data-Processing
Support Agreement dated as of October 15, 1976 between DST and BFDS pertaining
to data-processing support for corporate recordkeeping, data-processing and
related services (said Data-Processing Support Agreement, as in effect on the
date hereof, being hereinafter referred to as the "STS Data Processing
Agreement"); (iv) the Service Agreement dated as of February 28, 1988 between
Policyholder Service Corporation, a corporation affiliated with DST ("PSC") now
styled as Vantage Computer Systems Inc., a Missouri corporation and BFDS
pertaining to data-processing support for services related to certain life
insurance and annuity products (said Service Agreement, as in effect on the date
hereof, being hereinafter referred to as the "PSC Agreement"); (v) the Service
Agreement dated as of July 1, 1974 between the Bank and BFDS (said Service
Agreement, as in effect on the date hereof, being hereinafter referred to as the
"Service Agreement"); (vi) the Preferred Stock Purchase Agreement dated as of
September 19, 1986 among SSB, DST and BFDS (said Preferred Stock Purchase
Agreement, as in effect on the date hereof, being hereinafter referred to as the
"Preferred Stock Purchase Agreement"); and (vii) the Lease Agreement between Two
Heritage Drive Associates and BFDS relating to the premises at Two Heritage
Drive, North Quincy,
Massachusetts (said Lease, as in effect on the date hereof, being hereinafter
referred to as the "Lease"), each of the related agreements described in the
foregoing clauses (i) through (vii) being hereinafter referred to individually
as a "Related Agreement" and collectively as the "Related Agreements";
WHEREAS, the parties have agreed to amend the Joint Venture Agreement
and the Related Agreements.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used in the amendatory provisions
hereof and not otherwise defined herein are used as defined in the agreement
being amended thereby.
2. AMENDMENTS TO THE JOINT VENTURE AGREEMENT. The Joint Venture
Agreement is hereby amended, effective as of January 1, 1991, as follows:
The second sentence of Section 3.3 is deleted in its entirety and
replaced with the following sentence:
Such lease shall be in the form attached hereto as Exhibit 1 or in such
other form as SSB and DST may from time to time agree (the "Lease").
Section 9 is amended by adding the following ten sentences:
The intent of the parties is that DST will charge BFDS [*] for its [*].
DST agrees to cooperate with BFDS on any bids BFDS makes for any
potential full-service clients. Excluding existing relationships with
clients, DST cannot without the approval of State Street Boston
Corporation sell its services or the TA2000(TM) System if the effect of
such sale is to place tHE purchaser of such service and/or system into
competition with BFDS or NFDS in the business of providing mutual find
shareholder services; provided, however, that the restriction in this
section shall not apply to any use by IFTC or any successor to IFTC
whether by service agreement or by license of the DST TA2000(TM)
System. State Street Boston Corporation agrees thAT State Street Bank
shall not engage in any business in the United States which would cause
it to directly compete with BFDS' mutual fund shareholder transfer
agent or stock transfer businesses. This prohibition shall not apply to
any mutual fund shareholder servicing or stock transfer business which
State Street has offered to BFDS and which BFDS has declined to accept.
In the event a BFDS client asks DST to quote remote user fees, prior to
making such a quote, DST shall secure the approval of the Executive
Committee of the BFDS Board of Directors. [*]. All services provided to
the Corporation by DST and State Street Boston Corporation and its
affiliates and agents shall be at least equal in quality and response
time to services provided by them to any other person or entity. DST
hereby agrees to make accurate and complete books and records relating
to service, fees and levels of quality available for inspection by SSB
and its accountants, at SSB's expense, upon not
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less than five business days' prior notice to DST during DST's normal
business hours, at the place where such books and records are regularly
maintained. SSB hereby agrees that it shall cause the Bank to make
accurate and complete books and records relating to fees payable under
the Special Service Agreement dated as of January 1, 1991 between the
Corporation and the Bank and relating to service, fees, and levels of
quality available for inspection by DST and its accountants, at DST's
expense, upon not less than five business days' prior notice to the
Bank during the Bank's normal business hours, at the place where such
books and records are regularly maintained.
3. CONDITIONS PRECEDENT. The effectiveness of the amendments set forth
in Section 2 hereof and the obligations of the parties to fulfill the covenants
and agreements set forth in Section 5 hereof shall be subject to the
fulfillment, to the satisfaction of SSB and DST, of the following conditions
precedent:
3.1 SPECIAL SERVICE AGREEMENT. The special Service Agreement
in the form of Exhibit 2 hereto shall have been duly authorized,
executed and delivered by the Bank and BFDS and shall be in full force
and effect.
3.2 PURCHASE AGREEMENT. The Purchase Agreement in the form of
Exhibit 3 hereto shall have been duly authorized, executed and
delivered by Vantage and BFDS and shall be in full force and effect.
Vantage hereby agrees to comply with this Section 3.2.
3.3 PSC AGREEMENT. the PSC Agreement shall have been duly
rescinded by PSC and BFDS, subject to transition of the purchased
business pursuant to the Purchase Agreement. The documentation relating
to such recision shall be satisfactory in form and substance to SSB and
DST and shall be in full force and effect.
4. REPRESENTATIONS AND WARRANTIES. Each party hereto and Vantage hereby
represents and warrants to the other parties that:
4.1 AUTHORIZATION AND EXECUTION. Such party is a corporation
duly organized, legally existing and in good standing under the laws of
the state of its incorporation and has full corporate power and
authority to enter into and perform its obligations under this
Agreement and the other agreements to which it is or will become a
party pursuant hereto. Each of this Agreement and the other agreements
to which such party is or will become a party pursuant hereto has been
duly authorized, executed and delivered by such party, and constitutes
the legal, valid and binding obligation of such party, enforceable
against such party in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditor's rights
generally and subject to general principles of equity, regardless of
whether enforcement is sought in a proceeding in equity or at law.
4.2 NO VIOLATION; APPROVALS. The execution and delivery by
such party of this Agreement and the other agreements to which it is or
will become a party pursuant
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hereto does not, and the performance or observance by such party of the
terms, conditions or provisions hereof or thereof will not (i) conflict
with or violate any law, regulation or judicial or administrative order
by which such party is bound, (ii) conflict with or violate its charter
or by-laws, or (iii) conflict with, violate or result in the breach of
any agreement or instrument by which such party or its properties is
bound. No consent or approval of, giving of notice to, or taking any
action in respect of or by, any Federal, state or local governmental
authority or agency, or any other person, is required with respect to
the execution, delivery and performance by such party of this Agreement
or the other agreements to which it is or will become a party pursuant
hereto, except such consents, approvals, notices and other actions
which have been duly given, obtained or taken.
4.3 NO DEFAULTS. Such party is unaware of any material default
or breach, or any event which, with the giving of notice, the passage
of time, or both, would constitute a material default or breach, under
the Joint Venture Agreement or the Related Agreements to which it is a
party.
5. COVENANTS AND AGREEMENTS. On and after the date hereof, so long as
the Joint Venture Agreement remains in effect, each party hereto covenants that
it will comply with such of the following provisions as are applicable to it:
5.1 [*].
5.2 NO RENT INCREASES UNTIL JULY 1, 1996. The Bank covenants
to BFDS and DST that until July 1, 1996, it will not permit the lessor
under the Lease to charge base rent in excess of $13.52 per square foot
per annum. Operating costs shall be governed by the Lease. The Bank
agrees that it shall provide BFDS notice of any rent increases one year
prior to the renewal of the Lease.
5.3 FURTHER ASSURANCES. The parties hereto will cause to be
done, executed, acknowledged and delivered all such further acts,
conveyances and assurances as SSB or DST shall reasonably require for
accomplishing the purposes of this Agreement and consummating the
transactions contemplated hereby. Vantage hereby agrees to comply with
this Section as it relates to the Purchase Agreement and the
transactions contemplated thereby.
6. EFFECTIVE DATE; CONTINUING EFFECT. The Amendments to the Joint
Venture Agreement set forth in Section 2 hereof, and the amendments to certain
Related Agreements set forth in Sections 2 through 3 hereof, shall be deemed for
all purposes to have become effective on January 1, 1991. The Amendment to the
Lease set forth in Section 2 hereof shall be effective on July 1, 1991. Except
as specifically amended hereby, all of the terms and provisions of the Joint
Venture Agreement and the Related Agreements shall remain unmodified and are
hereby confirmed as continuing in full force and effect.
7. COUNTERPARTS. This Agreement may be executed by the parties hereto
in any
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number of counterparts, each of which when so executed shall be an original but
which together shall constitute one document.
8. HEADINGS. The headings in this Agreement are for convenience and
reference only and shall not modify, define, expand or limit any of the terms or
provisions hereof.
9. SAVINGS. This Agreement is the entire agreement of the parties with
respect to the subject matter hereof, and supersedes all prior negotiations and
agreements (written or oral) with respect thereto.
10. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws (other than the conflicts of laws rules) of The
Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties hereto and Vantage have each caused
this Agreement to be duly executed and delivered by their respective duly
authorized officers.
STATE STREET BOSTON CORPORATION
By /s/ A. Edward Allinson
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Title:
STATE STREET BANK AND TRUST COMPANY
By /s/ A. Edward Allinson
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Title:
BOSTON FINANCIAL DATA SERVICES, INC.
By /s/ James S. Phalen
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Title: President
DST SYSTEMS, INC.
By /s/ Thomas A. McCullough
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Title: Executive Vice President 2/6/92
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