Exhibit g.2
Form of Recordkeeping Agreement
FORM OF RECORDKEEPING AGREEMENT
This AGREEMENT is made effective the ____day of_______________, 2001,
by and between STATE STREET BANK AND TRUST COMPANY, a trust company chartered
under the laws of the Commonwealth of Massachusetts, having its principal office
and place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
("State Street") and [Name of Entity] (the "Fund"), with its principal office
and place of business at 0000 X. Xxxxxxxxxx Xxxxx Xxxx, Xxxxxxxxxx, XX 00000.
WITNESSETH:
WHEREAS, the Fund desires to appoint State Street as its agent to
perform certain investment accounting and recordkeeping functions for the assets
of the Fund's investment portfolio or portfolios (each a "Portfolio", and
collectively the "Portfolios"); and
WHEREAS, State Street is willing to accept such appointment on the
terms and conditions hereinafter set forth;
NOW THEREFORE, for and in consideration of the mutual promises
contained herein, the parties hereto, intending to be legally bound, mutually
covenant and agree as follows:
1. APPOINTMENT OF AGENT. The Fund hereby constitutes and appoints State
Street as its agent to perform certain accounting and recordkeeping
functions relating to portfolio transactions required of a duly
registered investment company under Rule 31a of the Investment Company
Act of 1940, as amended (the "1940 Act") and to calculate the net asset
value of the Portfolios.
2. REPRESENTATIONS AND WARRANTIES.
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A. The Fund hereby represents, warrants and acknowledges to State
Street:
1. That it is a trust duly organized and existing and in good
standing under the laws of its state of organization, and
that it is registered under the 1940 Act; and
2. That it has the requisite power and authority under
applicable law and its declaration of trust to enter into
this Agreement; it has taken all requisite action necessary
to appoint State Street as investment accounting and
recordkeeping agent; this Agreement has been duly executed
and delivered by the Fund; and this Agreement constitutes a
legal, valid and binding obligation of the Fund,
enforceable in accordance with its terms.
B. State Street hereby represents, warrants and acknowledges to the
Fund:
1. That it is a trust company duly organized and existing and
in good standing under the laws of the Commonwealth of
Massachusetts; and
2. That it has the requisite power and authority under
applicable law, its charter and its bylaws to enter into
and perform this Agreement; this Agreement has been duly
executed and delivered by State Street; and this Agreement
constitutes a legal, valid and binding obligation of State
Street, enforceable in accordance with its terms.
3. DUTIES AND RESPONSIBILITIES OF THE PARTIES.
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A. Delivery of Accounts and Records. The Fund will turn over or cause
to be turned over to State Street all accounts and records needed
by State Street to perform its duties and responsibilities
hereunder fully and properly. State Street may rely conclusively
on the completeness and correctness of such accounts and records.
B. Accounts and Records. State Street will prepare and maintain,
under the direction of and as interpreted by the Fund, the Fund's
or Portfolio's accountants and/or other advisors, in complete,
accurate and current form such accounts and records: (1) required
to be maintained by the Fund with respect to portfolio
transactions under Section 31(a) of the 1940 Act and the rules and
regulations from time to time adopted thereunder; (2) required as
a basis for calculation of each Portfolio's net asset value; and
(3) as otherwise agreed upon by the parties. The Fund will advise
State Street in writing of all applicable record retention
requirements, other than those set forth in the 1940 Act. State
Street will preserve such accounts and records in the manner and
for the periods prescribed in the 1940 Act or for such longer
period as is agreed upon by the parties. The Fund will furnish, in
writing or its electronic or digital equivalent, accurate and
timely information needed by State Street to complete such
accounts and records when such information is not readily
available from generally accepted securities industry services or
publications.
C. Accounts and Records Property of the Fund. State Street
acknowledges that all of the accounts and records maintained by
State Street pursuant hereto are the property of the Fund, and
will be made available to the Fund for inspection or reproduction
within a reasonable period of time, upon demand. State Street will
assist the Fund's independent auditors, or upon the prior written
approval of the Fund, or upon demand, any regulatory body, in any
requested review of the Fund's accounts and records but the Fund
will reimburse State Street for all expenses and employee time
invested in any such review outside of routine and normal periodic
reviews. Upon receipt from the Fund of the necessary information
or instructions, State Street will supply information from the
books and records it maintains for the Fund that the Fund may
reasonably request for tax returns, questionnaires, periodic
reports to shareholders and such other reports and information
requests as the Fund and State Street may agree upon from time to
time.
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D. Adoption of Procedures. State Street and the Fund may from time to
time adopt such procedures as they agree upon, and State Street
may conclusively assume that no procedure approved or directed by
the Fund, the Fund's or Portfolio's accountants or other advisors
conflicts with or violates any requirements of the prospectus,
declaration of trust, any applicable law, rule or regulation, or
any order, decree or agreement by which the Fund may be bound. The
Fund will be responsible for notifying State Street of any changes
in statutes, regulations, rules, requirements or policies which
may impact State Street's responsibilities or procedures under
this Agreement.
E. Valuation of Assets. State Street will value the Assets in
accordance with the Fund's Instructions utilizing the pricing
sources designated by the Fund ("Pricing Sources"). In the event
that the Fund specifies Reuters America, Inc., it will enter into
the Agreement attached hereto as Exhibit A. State Street will
calculate each Portfolio's net asset value in accordance with the
Portfolio's prospectus.
4. INSTRUCTIONS.
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A. The term "Instructions", as used herein, means written (including
telecopied, telexed, or electronically transmitted) or oral
instructions which State Street reasonably believes were given by
a designated representative of the Fund. The Fund will deliver to
State Street, prior to delivery of any Assets to State Street and
thereafter from time to time as changes therein are necessary,
written Instructions naming one or more designated representatives
to give Instructions in the name and on behalf of the Fund, which
Instructions may be received and accepted by State Street as
conclusive evidence of the authority of any designated
representative to act for the Fund and may be considered to be in
full force and effect until receipt by State Street of notice to
the contrary. Unless such written Instructions delegating
authority to any person to give Instructions specifically limit
such authority to specific matters or require that the approval of
anyone else will first have been obtained, State Street will be
under no obligation to inquire into the right of such person,
acting alone, to give any Instructions whatsoever. If the Fund
fails to provide State Street any such Instructions naming
designated representatives, any Instructions received by State
Street from a person reasonably believed to be an appropriate
representative of the Fund will constitute valid and proper
Instructions hereunder. The term "designated representative" may
include the Fund's or a Portfolio's employees and agents,
including investment managers and their employees.
B. No later than the next business day immediately following each
oral Instruction, the Fund will send State Street written
confirmation of such oral Instruction. At State Street's sole
discretion, State Street may record on tape, or otherwise, any
oral Instruction whether given in person or via telephone, each
such recording identifying the date and the time of the beginning
and ending of such oral Instruction.
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C. The Fund will provide upon State Street's request a certificate
signed by an officer or designated representative of the Fund, as
conclusive proof of any fact or matter required to be ascertained
from the Fund hereunder. The Fund will also provide State Street
Instructions with respect to any matter concerning this Agreement
requested by State Street. If State Street reasonably believes
that it could not prudently act according to the Instructions, or
the instruction or advice of the Fund's or a Portfolio's
accountants or counsel, it may in its discretion, with notice to
the Fund, not act according to such Instructions.
5. LIMITATION OF LIABILITY OF STATE STREET. State Street is not
responsible or liable for, and the Fund will indemnify and hold State
Street harmless from and against, any and all costs, expenses, losses,
damages, charges, counsel fees (including, without limitation,
disbursements and the allocable cost of in-house counsel), payments and
liabilities which may be asserted against or incurred by State Street
or for which State Street may be held to be liable, arising out of or
attributable to:
A. State Street's action or failure to act pursuant hereto; provided
that State Street has acted in good faith and with reasonable
care; and provided further, that in no event is State Street
liable for consequential, special, or punitive damages;
B. State Street's payment of money as requested by the Fund, or the
taking of any action which might make it or its nominee liable for
payment of monies or in any other way; provided, however, that
nothing herein obligates State Street to take any such action or
expend its own monies except in its sole discretion;
C. State Street's action or failure to act hereunder upon any
Instruction, advice, notice, request, consent, certificate or
other instrument or paper appearing to it to be genuine and to
have been properly executed, including any Instructions,
communications, data or other information received by State Street
by means of the Systems, as hereinafter defined, or any electronic
system of communication;
D. State Street's action or failure to act in good faith reliance on
the advice or opinion of counsel for the Fund or of its own
counsel with respect to questions or matters of law, which advice
or opinion may be obtained by State Street at the expense of the
Fund, or on the Instruction, advice or statements of any officer
or employee of the Fund, or the Fund's accountants or other
authorized individuals, and other persons believed by it in good
faith to be expert in matters upon which they are consulted;
E. Any error, omission, inaccuracy or other deficiency in any
Portfolio's accounts and records or other information provided to
State Street by or on behalf of a Portfolio, including the
accuracy of the prices quoted by the Pricing Sources or for the
information supplied by the Fund to value the Assets, or the
failure of the Fund to provide, or provide in a timely manner, any
accounts, records, or information needed by State Street to
perform its duties hereunder;
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F. The Fund's refusal or failure to comply with the terms hereof
(including without limitation the Fund's failure to pay or
reimburse State Street under Section 5 hereof), the Fund's
negligence or willful misconduct, or the failure of any
representation or warranty of the Fund hereunder to be and remain
true and correct in all respects at all times;
G. The use or misuse, whether authorized or unauthorized, of the
Systems or any electronic system of communication used hereunder,
by the Fund or by any person who acquires access to the Systems or
such other systems through the terminal device, passwords, access
instructions or other means of access to such Systems or such
other system which are utilized by, assigned to or otherwise made
available to the Fund, except to the extent attributable to any
negligence or willful misconduct by State Street;
H. Loss occasioned by the acts, omissions, defaults or insolvency of
any broker, bank, trust company, securities system or any other
person with whom State Street may deal; and
I. The failure or delay in performance of its obligations hereunder,
or those of any entity for which it is responsible hereunder,
arising out of or caused, directly or indirectly, by circumstances
beyond the affected entity's reasonable control, including,
without limitation: any interruption, loss or malfunction of 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.
6. COMPENSATION. In consideration for its services hereunder, the Fund
will pay to State Street the compensation set forth in a separate fee
schedule, incorporated herein by reference, to be agreed to by the Fund
and State Street from time to time, and, upon demand, reimbursement for
State Street's cash disbursements and reasonable out-of-pocket costs
and expenses, including attorney's fees and disbursements, incurred by
State Street in connection with the performance of services hereunder.
7. TERM AND TERMINATION. The initial term of this Agreement is for a
period of one (1) year. Thereafter, either the Fund or State Street may
terminate this Agreement by notice in writing, delivered or mailed,
postage prepaid, to the other party and received not less than ninety
(90) days prior to the date upon which such termination will take
effect. Upon termination hereof:
A. The Fund will pay State Street its fees and compensation due
hereunder and its reimbursable disbursements, costs and expenses
paid or incurred to such date;
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B. The Fund will designate a successor (which may be the Fund) by
Instruction to State Street; and
C. State Street will, upon payment of all sums due to State Street
from the Fund hereunder or otherwise, deliver all accounts and
records and other properties of the Fund to the successor, or, if
none, to the Fund, at State Street's office.
In the event that accounts, records or other properties remain in the
possession of State Street after the date of termination hereof for any
reason other than State Street's failure to deliver the same, State
Street is entitled to compensation as provided in the then-current fee
schedule for its services during such period, and the provisions hereof
relating to the duties and obligations of State Street will remain in
full force and effect.
8. NOTICES. Notices, requests, instructions and other writings addressed
to the Fund at the address set forth above, or at such other address as
the Fund may have designated to State Street in writing, will be deemed
to have been properly given to the Fund hereunder. Notices, requests,
Instructions and other writings addressed to State Street at State
Street Kansas City, 801 Pennsylvania, Xxxxxx Xxxx, Xxxxxxxx 00000,
Attention: Investment Accounting Department, or to such other address
as it may have designated to the Fund in writing, will be deemed to
have been properly given to State Street hereunder.
9. THE SYSTEMS; CONFIDENTIALITY.
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A. If State Street provides the Fund direct access to the
computerized investment portfolio recordkeeping and accounting
systems used by State Street ("Systems") or if State Street and
the Fund agree to utilize any electronic system of communication,
the Fund agrees to implement and enforce appropriate security
policies and procedures to prevent unauthorized or improper access
to or use of the Systems or such other system.
B. The Fund will preserve the confidentiality of the Systems and the
tapes, books, reference manuals, instructions, records, programs,
documentation and information of, and other materials relevant to,
the Systems and the business of State Street or its affiliates
("Confidential Information"). The Fund agrees that it will not
voluntarily disclose any such Confidential Information to any
other person other than its own employees who reasonably have a
need to know such information pursuant hereto. The Fund will
return all such Confidential Information to State Street upon
termination or expiration hereof.
C. The Fund has been informed that the Systems are owned by or
licensed for use by State Street and its affiliates from one or
more third parties ("Licensors"), and the Fund acknowledges that
State Street and Licensors have proprietary rights in and to the
Systems and all other State Street or Licensor programs, code,
techniques, know-how, data bases, supporting documentation, data
formats, and procedures, including without limitation any changes
or modifications made at the request or expense or both of the
Fund (collectively, the "Protected Information"). The Fund
acknowledges
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that the Protected Information constitutes confidential material
and trade secrets of State Street and Licensors. The Fund will
preserve the confidentiality of the Protected Information, and the
Fund hereby acknowledges that any unauthorized use, misuse,
disclosure or taking of Protected Information, 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 law. The Fund will so inform employees
and agents who have access to the Protected Information or to any
computer equipment capable of accessing the same. Licensors are
intended to be and are third party beneficiaries of the Fund's
obligations and undertakings contained in this Section.
D. The Fund hereby represents and warrants to State Street that
it has determined to its satisfaction that the Systems are
appropriate and suitable for its use. THE SYSTEMS ARE PROVIDED ON
AN AS IS, AS AVAILABLE BASIS. STATE STREET EXPRESSLY DISCLAIMS ALL
WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EXCEPT
THOSE WARRANTIES EXPRESSLY STATED HEREIN.
10. MULTIPLE PORTFOLIOS. If the Fund is comprised of more than one
Portfolio, the following provisions apply:
A. Each Portfolio will 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
hereby, every reference herein to the Fund is deemed to relate
solely to the particular Portfolio to which such transaction
relates. Under no circumstances will 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
as to each Portfolio is understood to be for clerical convenience
only and will not constitute any basis for joining the Portfolios
for any reason.
B. The Fund may appoint State Street as its investment accounting and
recordkeeping agent for additional Portfolios from time to time by
written notice, provided that State Street consents to such
addition. Rates or charges for each additional Portfolio will be
as agreed upon by State Street and the Fund in writing.
11. MISCELLANEOUS.
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A. This Agreement will be construed according to, and the rights and
liabilities of the parties hereto will be governed by, the laws of
the commonwealth of Massachusetts, without reference to the choice
of laws principles thereof.
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B. All terms and provisions hereof will 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, the indemnifications extended
hereunder, and the provisions of Section 9 hereof are intended to
and will continue after and survive the expiration, termination or
cancellation hereof.
D. No provisions hereof may be amended or modified in any manner
except by a written agreement properly authorized and executed by
each party hereto.
E. The failure of either party to insist upon the performance of any
terms or conditions hereof or to enforce any rights resulting from
any breach of any of the terms or conditions hereof, including the
payment of damages, will not be construed as a continuing or
permanent waiver of any such terms, conditions, rights or
privileges, but the same will continue and remain in full force
and effect as if no such forbearance or waiver had occurred. No
waiver, release or discharge of any party's rights hereunder will
be effective unless contained in a written instrument signed by
the party sought to be charged.
F. The captions herein are included for convenience of reference
only, and in no way define or limit any of the provisions hereof
or otherwise affect their construction or effect.
G. This Agreement may be executed in two or more counterparts, each
of which is deemed an original but all of which together
constitute one and the same instrument.
H. If any provision hereof is determined to be invalid, illegal, in
conflict with any law or otherwise unenforceable, the remaining
provisions hereof will be considered severable and will not be
affected thereby, and every remaining provision hereof will remain
in full force and effect and will remain enforceable to the
fullest extent permitted by applicable law.
I. The benefits of this Agreement may not be assigned by either party
nor may either party delegate all or a portion of its duties
hereunder without the prior written consent of the other party.
Notwithstanding the foregoing, the Fund agrees that State Street
may delegate all or a portion of its duties to an affiliate of
State Street, provided that such delegation will not reduce the
obligations of State Street under this Agreement.
J. Neither the execution nor performance hereof will be deemed to
create a partnership or joint venture by and between State Street
and the Fund or any Portfolio.
K. 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 either party hereunder
will not affect any rights or obligations of the other party
hereunder.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officers.
STATE STREET BANK AND TRUST COMPANY AETNA SERIES FUND, INC.
By: By:
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Title: Title:
9
EXHIBIT A--REUTERS DATA SERVICE AGREEMENT
The undersigned acknowledges and agrees that some of the data being provided in
the service by State Street to the Fund contains information supplied to State
Street by Reuters America Inc. ("Reuters") (the "Data"). The Fund agrees that:
(i) although Reuters makes every effort to ensure the accuracy and
reliability of the Data, the Fund acknowledges that Reuters,
its employees, agents, contractors, subcontractors,
contributors and third party providers will not be liable for
any loss, cost or damage suffered or incurred by the Fund
arising out of any fault, interruption or delays in the Data
or out of any inaccuracies, errors or omissions in the Data
however such faults, interruptions, delays, inaccuracies,
errors or omissions arise, unless due to the gross negligence
or willful misconduct of Reuters;
(ii) it will not transfer, transmit, recirculate by digital or
analogue means, republish or resell all or part of the Data;
and
(iii) certain parts of the Data are proprietary and unique to
Reuters.
The undersigned further agrees that the benefit of this clause will inure to the
benefit of Reuters.
AETNA SERIES FUND, INC.
By:
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Title:
