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EXHIBIT 99.(H)(1)
ADMINISTRATIVE SERVICES AGREEMENT
THIS AGREEMENT (the "Agreement") is dated as of December 29, 2000 by and among
STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company ("State
Street"), and each entity listed on Schedule 1 hereto, together with any other
entity which may from time to time become a party to this Agreement by execution
of an Instrument of Accession substantially in the form attached as Exhibit 1
hereto (each a "Fund" and collectively, the "Funds").
WHEREAS, each Fund is, unless otherwise noted, registered as an open-end or
closed-end, management investment company under the Investment Company Act of
1940, as amended (the "1940 Act"); and
WHEREAS, each Fund desires to retain State Street to furnish certain accounting
and other administrative services, and State Street is willing to furnish such
services, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained and other good and valuable consideration the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
1. INTERPRETATION.
1.1 In this Agreement:
"Agreement" means this Agreement including the recitals hereto and the
Schedules and Exhibits, as the same may be amended from time to time by
agreement of the parties.
"Authorized Person" means any person authorized by a Fund to give Proper
Instructions on behalf of the Fund and in respect of whom State Street
has not received written notice from the Fund that such authorization
has been revoked.
"Authorized Price Sources" means pricing sources designated by a Fund on
State Street's standard form price source authorization, as the same may
be amended by the Fund and State Street from time to time or as
otherwise designated by the Fund or an Authorized Person, including,
without limitation, the investment adviser to the Fund.
"Business Day" means any day on which the New York Stock Exchange is
open for trading or on which banking institutions in the City of New
York are open for business.
"Charter Documents" means a Fund's Articles of Incorporation or
Declaration of Trust, as the case may be, and By-Laws.
"Compliance Monitoring Services" means the agreed investment compliance
checks as may be carried out by State Street in respect of a Fund on a
daily (or other periodic) basis pursuant to the provisions of the
Compliance Monitoring Services Addendum attached hereto as Exhibit 2.
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"Constitutive Documents" means, collectively, a Fund's Charter Documents
and Prospectus, as defined herein.
"Existing Service" means a Service which is described in the Service
Level Agreement or which is determined by the JSC (as defined in Section
15) to be an Existing Service.
"Historic Fund Records" means the books, records, data files, documents
and other information maintained by or on behalf of each Fund as part of
the Services prior to the effective date of this Agreement and which are
necessary for the provision of the Services by State Street hereunder.
"MLIM" means Xxxxxxx Xxxxx Investment Managers, L.P.
"New Service" means a Service other than an Existing Service.
"Proper Instructions" means instructions (which may be standing
instructions) received by State Street from an Authorized Person, in any
of the following forms:
(i) in writing signed by the Authorized Person; or
(ii) in a tested communication; or
(iii) in a communication utilizing access codes effected between
electro mechanical or electronic devices as may be agreed upon
by the parties in writing from time to time; or
(iv) by such other means as may be agreed upon in writing from time
to time by State Street and the party giving such instruction
including, without limitation, oral instructions.
"Prospectus" means a Fund's currently effective registration statement
under the Securities Act of 1933, as amended (the "1933 Act"), and the
1940 Act and the Fund's Prospectus(es) and Statement(s) of Additional
Information relating to all portfolios and all amendments and
supplements thereto as in effect from time to time.
"Service Level Agreement" means the Service Level Agreement of even date
herewith between State Street and MLIM relating to the provision of the
Services, as amended from time to time.
"Services" means the accounting and other administrative services
described in Sections 3 and 4 hereof.
1.2 References herein to a Fund shall be deemed to include each portfolio or
class of share of such Fund, as applicable. For purposes of any
liability or indemnification provision hereunder each separate portfolio
of an investment company shall be considered a Fund.
1.3 In this Agreement references to "persons" shall include legal as well as
natural entities, references importing the singular shall include the
plural (and vice versa), use of the masculine pronoun shall include the
feminine and numbered schedules, exhibits, sections or sub-sections
shall (unless the contrary intention appears) be construed as references
to such schedules and exhibits hereto and sections or sub-sections
herein bearing those numbers. The Schedules and Exhibits are hereby
incorporated herein by reference.
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2. APPOINTMENT.
2.1 Each Fund hereby retains State Street and State Street agrees to provide
the Services, in each case subject to and in accordance with the terms
and conditions set forth in this Agreement and subject to the control,
supervision and direction of the Fund and the review and comment by the
Fund's auditors and legal counsel and in accordance with such procedures
as may be established from time to time between the Fund and State
Street. State Street confirms that it shall offer employment to
substantially all of those persons employed by, and in good standing
with, the Mutual Fund Accounting Department of MLIM as of the date
hereof
2.2 In the event that a Fund establishes one or more additional series of
shares with respect to which it desires to have State Street render
Services under the terms hereof, it shall so notify State Street in
writing and thereafter such series will be subject to the terms and
conditions of this Agreement, and shall be maintained and accounted for
by State Street on a discrete basis.
2.3 Subject to obtaining the prior written approval of each Fund, State
Street may assign, delegate or otherwise transfer any or all of its
rights and obligations under this Agreement to a third party provided
that State Street's liability to the Funds shall not be affected
thereby.
2.4 It is hereby acknowledged and agreed by each Fund that this Agreement is
entered into by the Fund as a principal contracting party and not as
agent for any other party and nothing contained herein shall be
interpreted as creating any contractual obligations on the part of State
Street towards any shareholders of the Fund.
2.5 State Street shall not be responsible for any duties or obligations
which it has not specifically undertaken pursuant to this Agreement and
no such duties or obligations shall be implied or inferred.
2.6 This Agreement and the Services to be provided by State Street hereunder
shall be revised by the parties from time to time to comply with changes
in any law, rule or regulation applicable to the Funds.
2.7 If any literature, including, but not limited to, brochures, advertising
materials, web site contents and marketing materials, issued by or on
behalf of a Fund contains any reference to State Street, other than
literature merely identifying State Street as providing accounting or
administrative services to the Fund, or if any literature issued by
State Street contains any reference to a Fund, then the Fund or State
Street, as the case may be, will obtain the other party's prior written
consent to such reference before its publication in any form.
3. ACCOUNTING SERVICES.
3.1 State Street shall maintain the books of account and other financial
records of each Fund in accordance with applicable law, including
Section 31(a) of the 1940 Act and rules thereunder, other than records
maintained by the Fund's custodian (as agreed among the Fund, State
Street and the custodian) and shall perform the following duties in the
manner prescribed by the Constitutive Documents and further in
accordance with such written procedures, including, but not limited to,
the Service Level Agreement, as may be established between the Fund and
State Street from time to time:
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3.1.1 Record general ledger entries;
3.1.2 Calculate daily net income;
3.1.3 Reconcile activity to the trial balance;
3.1.4 Calculate and publish daily net asset value;
3.1.5 Prepare account balances; and.
3.1.6 Provide such other accounting services as may be required to
enable each Fund to maintain its books and records in compliance
with applicable law and generally accepted accounting
principles.
3.2 Each Fund shall provide timely prior written notice to State Street of
any modification in the manner in which such calculations are to be
performed. For purposes of calculating the net asset value of a Fund,
State Street shall value the Fund's portfolio securities utilizing
prices obtained from Authorized Price Sources. State Street shall not be
responsible for any revisions to the methods of calculation prescribed
by the Constitutive Documents or the Fund unless and until such
revisions are communicated in writing to State Street.
4. ADMINISTRATIVE SERVICES.
4.1 State Street shall provide the following additional administrative
services to each Fund in the manner prescribed by the Constitutive
Documents and further in accordance with such written procedures,
including, but not limited to, the Service Level Agreement, as may be
established between the Fund and State Street from time to time:
4.1.1 Oversee the maintenance by the Fund's custodian of certain books
and records of the Fund as required under Rule 31a-1(b) of the
1940 Act;
4.1.2 Calculate, submit for approval by officers of the Fund and
arrange for payment of the Fund's expenses;
4.1.3 Prepare for review and approval by officers of the Fund
financial information for the Fund's semi-annual and annual
reports, proxy statements and other communications required or
otherwise to be sent to Fund shareholders;
4.1.4 Prepare and file, following review by an officer of and legal
counsel for the Fund, the Fund's periodic financial reports
required to be filed with the Securities and Exchange Commission
("SEC") on Form N-SAR and prepare financial information required
by Form N-1A, Form N-2 and other regulatory filings and such
other financial reports, forms or filings as may be mutually
agreed upon;
4.1.5 Prepare reports relating to the business and affairs of the Fund
as may be mutually agreed upon and not otherwise prepared by the
Fund's investment adviser, custodian, legal counsel or
independent accountants;
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4.1.6 Make such reports and recommendations to the Board of Directors
of the Fund (the "Board") concerning the performance of the
Fund's independent accountants as the Board may reasonably
request;
4.1.7 Make such reports and recommendations to the Board concerning
the performance and fees of the Fund's custodian and transfer
and dividend disbursing agent (the "Transfer Agent") as the
Board may reasonably request or deem appropriate;
4.1.8 Consult with the Fund's officers, independent accountants, legal
counsel, custodian and Transfer Agent in establishing and
following the accounting policies of the Fund;
4.1.9 Provide Compliance Monitoring Services to assist the Fund's
investment adviser in complying with Internal Revenue Code
mandatory qualification requirements, the requirements of the
1940 Act and Fund prospectus limitations as may be mutually
agreed upon;
4.1.10 Assist the Fund in the handling of routine regulatory
examinations and work closely with the Fund's legal counsel in
response to any non-routine regulatory matters;
4.1.11 Assist the Fund in the preparation of reports to the Board of
Directors and with any other work of a routine or non-routine
nature that requires information maintained or accessible
through the Fund's accounting and financial records.
4.2 State Street shall be responsible for the provision of the office
facilities and the personnel required by it to perform the Services
contemplated herein. State Street shall also provide reasonable
facilities for use by the Fund's auditors in connection with any
periodic inspection of the books and records maintained by State Street
hereunder.
5. SERVICE LEVEL AGREEMENT.
5.1 In conjunction with this Agreement, State Street and MLIM shall enter
into a Service Level Agreement which specifies key performance
indicators and delivery benchmarks in respect of the Services and which
reflects the performance goals of the parties from time to time.
5.2 Subject at all times to the terms and conditions of this Agreement,
State Street shall use all reasonable endeavors to provide the Services
in accordance with the Service Level Agreement.
5.3 Each Fund shall use all reasonable endeavors to fulfill its duties and
obligations under the Service Level Agreement and to cause any third
parties referenced therein to do likewise. State Street shall have no
liability for any loss, liability, claim, cost or expense to the extent
resulting from or caused by the failure of a Fund or any other party
referenced in the Service Level Agreement to comply with the terms
thereof. For avoidance of doubt, the preceding sentence shall not
relieve State Street of liability to the extent any such loss or expense
arises from its own negligence, bad faith, fraud, willful default or
willful misconduct in the discharge of its duties hereunder.
5.4 The liability of State Street in respect of its obligations under the
Service Level Agreement shall be governed by the terms of this
Agreement. In no event shall a failure by State Street to comply
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with any term or condition of the Service Level Agreement constitute a
breach or violation of this Agreement giving rise to financial
penalties, damages or contractual or other remedies, except as set out
in this Section 5. However, the fact that State Street has met the key
performance indicators or delivery benchmarks of the Service Level
Agreement shall not relieve State Street of any liability that it might
otherwise have under this Agreement arising from or as a result of its
fraud, willful default, negligence or willful misconduct in the
performance of its duties hereunder. It is the intention of State Street
and each Fund that the remedy for any:
5.4.1 failure by State Street, a Fund or any third party referenced in
the Service Level Agreement to meet the performance indicators,
delivery benchmarks or other aspects of the Service Level
Agreement; or
5.4.2 consistent failure by State Street, a Fund or any third party
referenced in the Service Level Agreement to fulfill its duties
and obligations under the Service Level Agreement in a material
respect; or
5.4.3 dispute relating to the Service Level Agreement,
shall be referral of the matter to the JSC (as defined below) for
attempted resolution or, where applicable, termination of this Agreement
in accordance with Section 20.6.4.
5.5 The purpose of the referral to the JSC is to resolve the inability of
the relevant party to meet the provisions of the Service Level
Agreement. It shall be the responsibility of the JSC to develop and
oversee implementation of procedural or operational changes which will
enable the Service Level Agreement to be more regularly met; revise the
obligations of the parties under the Service Level Agreement to more
adequately meet the service requirements of the Funds; or otherwise
develop a solution aimed at ensuring that the inability to meet the
Service Level Agreement will be less likely to occur in the future.
5.6 If a matter is referred to the JSC pursuant to Section 5.4 and despite
implementation of the JSC's recommendations, a party consistently fails
to meet in a material respect its obligations under the Service Level
Agreement that were the subject of the referral or any revised
obligations agreed as a result of the referral (other than for reasons
outside the party's reasonable control), then the matter shall be
referred to the senior executive of the Global Investor Services Group
of State Street and the First Vice President - MLIM Operations (or their
equivalents following any reorganization) (together the "Executive
Officers") for resolution. The referral shall expressly cite this
Section 5 and state that the relevant Fund(s) or State Street, as the
case may be, may exercise its right to terminate this Agreement should
the matter not be resolved.
5.7 If the Executive Officers are unable to resolve the matter within thirty
(30) Business Days of the referral, and if (but only if) all relevant
parties agree in writing within five (5) Business Days of the
aforementioned deadline, the matter may be submitted to a
mutually-acceptable Professional Mediator (as defined in Section 26.5
below) to attempt to facilitate a resolution within thirty (30) Business
Days of the referral. Any such mediation shall be conducted in
accordance with the provisions of Sections 26.4 through 26.6. below.
5.8 If either (i) following a failure by the Executive Officers to resolve
the matter, the relevant Fund(s) and State Street do not agree on use of
a Professional Mediator or (ii) the matter has not
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been resolved within thirty (30) Business Days of the conclusion of such
mediation effort, then the relevant Fund(s) or State Street, as the case
may be, shall be entitled to terminate this Agreement in accordance with
Sections 20.4.3 and 20.6.4, respectively.
5.9 Nothing in this Section 5 shall limit the liability of State Street for
any failure to perform the Services in accordance with the standard of
care set forth in Section 11 and the terms of this Agreement as distinct
from a failure by State Street to meet key performance indicators or
delivery benchmarks of the Service Level Agreement. The fact that the
Service Level Agreement performance metrics have been met shall not
excuse State Street from liability that it would otherwise have under
the terms of this Agreement.
6. NECESSARY INFORMATION.
6.1 Each Fund will promptly deliver to State Street copies of each of the
following documents and all future amendments and supplements thereto,
if any:
6.1.1 The Fund's Charter Documents;
6.1.2 The Fund's Prospectus;
6.1.3 Certified copies of the resolutions of the Board authorizing (1)
the Fund to enter into this Agreement and (2) certain
individuals on behalf of the Fund to (a) give Proper
Instructions to State Street pursuant to this Agreement and (b)
sign checks and pay expenses;
6.1.4 A copy of the investment advisory agreement between the Fund and
its investment adviser; and
6.1.5 Such other certificates, documents or opinions which State
Street may, in its reasonable discretion, deem necessary or
appropriate in the proper performance of its duties.
6.2 Each Fund shall provide or cause to be provided to State Street such
additional data and information as State Street may reasonably require
in order to discharge its duties under this Agreement, including,
without limitation, the information detailed in the Service Level
Agreement. State Street shall have no liability for the failure to
provide, any error in the provision of, or any delay in providing, any
of the Services to the extent the provision of such Services is
dependent upon receipt of the aforesaid information and the same has not
been provided in a materially complete, accurate and timely manner. For
avoidance of doubt, the preceding sentence shall not relieve State
Street of liability to the extent any such loss or expense arises from
its own negligence, bad faith, fraud, willful default or willful
misconduct in the discharge of its duties hereunder.
6.3 Each Fund shall assure that its custodian and other service providers
make available to State Street such information in respect of the Fund
as State Street may reasonably require for the performance of the
Services.
6.4 Each Fund shall use all reasonable endeavors to ensure that any
information provided or caused to be provided to State Street pursuant
to this Agreement, including the Service Xxxxx Xxxxxxxxx,
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xxxxx xx provided in a complete, accurate and timely manner so as to
enable State Street to duly render the Services.
6.5 In the course of discharging its duties hereunder, State Street may rely
on the information provided to it by or on behalf of a Fund or by any
persons authorized by a Fund including, without limitation, any other
service providers to the Fund or any Authorized Price Sources.
6.6 Each Fund acknowledges and agrees that except as otherwise expressly set
forth in the Service Level Agreement, State Street shall have no
responsibility for, or duty to review, confirm or otherwise perform any
investigation as to the completeness, accuracy or sufficiency of any
information provided to it by the Fund, any persons authorized by the
Fund or any other service providers to the Fund, including, without
limitation, any Authorized Price Sources and shall be without liability
for any loss, liability, claim, expense or damage suffered or incurred
by any person as a result of State Street having relied upon and
utilized such information in good faith. For avoidance of doubt, the
preceding sentence shall not relieve State Street of liability to the
extent any such loss or expense arises from its own negligence, bad
faith, fraud, willful default or willful misconduct in the discharge of
its duties hereunder. State Street will promptly notify a Fund in the
event it becomes aware that any information received by it is
incomplete, inaccurate or insufficient or in the event of a failure or
delay by any party to provide information required by State Street to
discharge its duties under this Agreement.
7. RECONCILIATION.
7.1 Each Fund represents and warrants to State Street that it has completed
or caused to be completed a full reconciliation of the Historic Fund
Records and except as otherwise disclosed in writing to State Street
such records are accurate and complete in all material respects.
7.2 To the extent the Historic Fund Records remain unreconciled as of the
effective date of this Agreement, each Fund shall ensure that the
outstanding items are reconciled as soon as practicable or otherwise
promptly redressed, in each case at the expense of the Fund. State
Street shall provide all reasonable assistance to each Fund (at the
expense of the Fund) to reconcile any outstanding items.
7.3 State Street shall have no liability to a Fund or any other person and
shall be indemnified and held harmless by each Fund from and against any
loss, liability, damage, claim, cost or expense resulting from or caused
by its good faith reliance on the accuracy and completeness of the
Historic Fund Records.
8. PROPER INSTRUCTIONS.
8.1 Each Fund shall provide State Street with an incumbency certificate
specifying the names, specimen signatures and powers of all Authorized
Persons in respect of the Fund. State Street may rely upon the identity
and authority of such persons until it receives written notice from the
relevant Fund to the contrary.
8.2 Each Fund will give State Street all necessary instructions to enable
State Street to fulfill its obligations under this Agreement at such
times and in such form as mutually agreed upon, including, without
limitation, as State Street may request.
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8.3 State Street shall have no responsibility or liability to a Fund and
shall be indemnified and held harmless by the Fund, if a subsequent
written confirmation of an oral Proper Instruction fails to conform to
the oral instructions received by State Street. State Street shall
promptly seek written confirmation of any oral instruction received by
it.
8.4 State Street shall have no obligation to act in accordance with
purported instructions to the extent they conflict with applicable law
or regulation, provided that State Street shall not be under any
obligation to ensure that any instruction received by it would not
contravene any such laws or regulations.
8.5 State Street shall not be liable for any loss resulting from a delay
while it obtains clarification of any Proper Instructions which it
reasonably deems to be incomplete or unclear, provided that it promptly
seeks such clarification.
8.6 State Street shall be held harmless by a Fund in acting upon any
instruction, notice, request, consent, certificate or instrument
reasonably believed by it to be genuine and to be signed or otherwise
given by the proper party or parties.
8.7 If a Fund instructs State Street to take any action (including, without
limitation, the initiation of legal proceedings) which may involve the
payment of money or liability on the part of Xxxxx Xxxxxx, Xxxxx Xxxxxx
may refrain from acting in accordance with such instruction until it has
received indemnity, security or both reasonably satisfactory to it and
sufficient to hold it harmless from and against any loss, liability or
expense which State Street may incur as a result of taking such action.
9. PROFESSIONAL ADVICE.
When deemed necessary for the proper performance of its duties under
this Agreement with respect to specific and non-routine matters
involving one or more of the Funds, State Street may, with the consent
of a Fund (which consent shall not be unreasonably withheld), seek
legal, tax, financial, administrative or other advice of a reputable
professional adviser and State Street shall be reimbursed in respect of
any costs and expenses properly incurred in obtaining and receiving any
such advice. State Street shall have no liability to a Fund for any
loss, liability, claim, cost, expense, tax or assessment arising as a
direct or indirect result of having relied on such advice in good faith.
10. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS.
Each Fund assumes responsibility for complying with all securities, tax,
commodities and other laws, rules and regulations applicable to it in
the conduct of its business.
11. STANDARD OF CARE; LIMITATION OF LIABILITY.
00.0 Xxxxx Xxxxxx shall at all times exercise reasonable care and diligence
and act in good faith in the performance of its duties hereunder,
provided, however, that State Street shall be without liability to any
Fund or any agent thereof for any loss, liability, damage, claim, cost
or expense unless caused by its own fraud, willful default, negligence
or willful misconduct or that of its
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agents, delegates or employees. State Street shall be responsible for
the performance of only such duties as are explicitly set forth in this
Agreement and shall have no responsibility for the actions or activities
of any other party (save its agents, delegates or employees), including
other service providers to a Fund.
11.2 Each Fund, severally but not jointly, hereby indemnifies and secures
harmless (to the maximum extent permitted by law) State Street from and
against all claims, actions, costs, charges, losses, damages and
expenses (including without limitation legal fees and amounts reasonably
paid in settlement) which State Street may incur or sustain (other than
by reason of State Street's bad faith, willful default or negligence or
that of its agents, delegates or employees) in connection with the
performance of its duties for that particular Fund under this Agreement
or otherwise arising from any act or omission of that particular Fund or
any other person (including any predecessor service provider to the
Fund) prior to the effective date of this Agreement.
11.3 If State Street (the "Indemnified Party") shall seek indemnification
from a Fund (the "Indemnifying Party") in respect of a claim or
liability asserted by a third party, the Indemnified Party shall give
written notice thereof to the Indemnifying Party promptly after it
receives notice of the claim or liability being asserted, but the
failure to do so shall not relieve the Indemnifying Party from any
liability except to the extent that it is prejudiced by the failure or
delay in giving such notice. Such notice shall summarize the basis for
the claim for indemnification and any claim or liability being asserted
by the third party. Within 15 days after receiving such notice, the
Indemnifying Party shall give written notice to the Indemnified Party
stating whether it disputes the claim for indemnification and whether it
will defend against the third-party claim or liability at its own cost
and expense. If the Indemnifying Party fails to give notice that it
disputes an indemnification claim within 15 days after receipt of notice
thereof, it shall be deemed to have accepted and agreed to the claim.
The Indemnifying Party shall be entitled to direct the defense against
the third-party claim or liability with counsel selected by it (subject
to the consent of the Indemnified Party, which consent shall not be
unreasonably withheld) as long as the Indemnifying Party is conducting a
good faith and diligent defense. The Indemnified Party shall at all
times have the right to fully participate in the defense of a
third-party claim or liability at its own expense directly or through
counsel. If no such notice of intent to dispute and defend a third-party
claim or liability is given by the Indemnifying Party, or if such good
faith and diligent defense is not being or ceases to be conducted by the
Indemnifying Party, the Indemnified Party shall have the right, at the
expense of the Indemnifying Party, to undertake the defense of such
claim or liability (with counsel selected by the Indemnified Party), and
to compromise or settle it, exercising reasonable business judgment.
Except as otherwise provided in the immediately preceding sentence,
neither the Indemnified Party nor the Indemnifying Party shall settle or
confess any claim or make any compromise in any case in which the
Indemnifying Party will be asked to indemnify the Indemnified Party,
except with the prior written consent of both parties. The Indemnified
Party shall at all times make available such information and assistance
as the Indemnifying Party may reasonably request and shall cooperate
with the Indemnifying Party in such defense, at the expense of the
Indemnifying Party.
11.4 In no event shall any party be liable for any loss arising by reason of
the occurrence of a Force Majeure Event (as defined in Section 12) which
prevents, hinders or delays it from or in performing its obligations
under this Agreement.
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11.5 State Street shall not be liable for any liabilities, damages, losses,
claims, taxes, duties, costs or expenses (including, without limitation,
legal fees) whatsoever incurred or suffered by a Fund at any time as a
result of the failure of the Fund or any other person (other than State
Street, its employees, agents or delegates) to comply with the laws or
regulations of any country or jurisdiction. For avoidance of doubt, the
preceding sentence shall not relieve State Street of liability to the
extent such other person's failure to comply with laws or regulations is
the direct result of State Street's negligence, bad faith, fraud,
willful default or willful misconduct in the discharge of its duties
hereunder.
11.6 The provisions herein regarding indemnification, liability and limits
thereon shall survive following the expiration or termination of this
Agreement to the extent relating to any claim or right of action arising
in connection with the performance of this Agreement and each Fund and
State Street shall enter into such documents as shall be necessary to
ensure the survival of the same.
11.7 Each Fund acknowledges that except as otherwise expressly set forth in
this Agreement, State Street's duties under this Agreement do not
include any obligation to monitor the compliance of the Fund or any
other person whatsoever with any restriction or guideline imposed by its
Constitutive Documents or by law or regulation or otherwise with regard
to the investment of the assets of the Fund. In no event shall State
Street have any duty to enforce compliance by the Fund or any other
person whatsoever with any such restrictions or guidelines.
11.8 Each Fund acknowledges and agrees that State Street shall provide
Compliance Monitoring Services, if any, on a contractual basis only in
accordance with the terms of the Compliance Monitoring Services Addendum
attached hereto as Exhibit 2. The Compliance Monitoring Services are
provided by State Street as a supplement to and not in place or in lieu
of a Fund's own compliance program and/or that of the investment
advisers of the Fund.
00.0 Xxxxx Xxxxxx shall have no liability to a Fund or otherwise for any loss
or liability resulting from State Street's performance or
non-performance of the Compliance Monitoring Services except as
expressly set forth in the Compliance Monitoring Services Addendum.
11.10 In no event shall State Street or any Fund be liable for any special,
indirect, incidental, punitive or consequential damages of any kind
whatsoever, even if advised of the possibility of such damages. The
limitation on liability imposed by this Section 11.10 shall not be
construed to relieve State Street of liability to a Fund in
circumstances where (i) it is otherwise liable to the Fund under the
terms of this Agreement for losses resulting from an inaccurate Net
Asset Value calculation and (ii) the liability of the Fund arises from
its obligation to compensate shareholders for direct loss resulting from
the purchase or redemption of shares at such inaccurate Net Asset Value.
12. FORCE MAJEURE.
12.1 If a party is prevented, hindered or delayed from or in performing any
of its obligations under this Agreement by a Force Majeure Event (as
defined below) then:
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12.1.1 that party's obligations under this Agreement shall be suspended
for so long as the Force Majeure Event continues and to the
extent that party is so prevented, hindered or delayed;
12.1.2 as soon as reasonably possible after commencement of the Force
Majeure Event that party shall notify the other party in writing
of the occurrence of the Force Majeure Event, the date of
commencement of the Force Majeure Event and the effects of the
Force Majeure Event on its ability to perform its obligations
under this Agreement; and
12.1.3 as soon as reasonably possible after the cessation of the Force
Majeure Event that party shall notify the other party in writing
of the cessation of the Force Majeure Event and shall resume
performance of its obligations under this Agreement.
12.2 For the purposes of this Section 12 and Section 11.4, "Force Majeure
Event" means any event beyond the reasonable control of a party
including, without limitation, acts of God, war damage, enemy action,
riot, civil commotion, rebellion, act of any government or any other
competent authority or compliance with any law or governmental order,
rule, regulation or direction. For avoidance of doubt, provided that
State Street has exercised reasonable care and diligence and complied
with its obligations under Section 12.3 and 13 below, a Force Majeure
Event shall include any failure or malfunction of any
telecommunications, computer or other electrical, mechanical or
technological application, service or system to the extent any such
failure is beyond State Street's reasonable control.
12.3 Each party hereto shall use all reasonable efforts to mitigate the
effects of any Force Majeure Event.
13. CONTINGENCY MEASURES.
13.1 State Street shall maintain in a separate and safe place additional
copies of all records required to be maintained pursuant to this
Agreement or additional tapes, disks or other sources of information
necessary to reproduce all such records.
13.2 Within twelve (12) months of the date hereof, State Street shall
establish and maintain a disaster recovery back-up facility available
for its use in providing the Services required hereunder in the event
circumstances beyond State Street's control result in State Street not
being able to process the necessary work at its principal facility.
State Street shall, from time to time, upon request from a Fund provide
written evidence and details of its arrangement with respect to such
back-up facility. State Street further agrees to provide each Fund from
time to time on request with a copy of the disaster recovery and
contingency plans of State Street and to make its staff available to
discuss such plans on request. Nothing in this Section shall relieve
State Street of any liability that it might otherwise have under this
Agreement arising from or as a result of its fraud, willful default,
negligence or willful misconduct in the performance of its duties
hereunder, provided, however, that the aggregate liability of State
Street to any Fund in relation to the maintenance of a disaster recovery
back-up facility during the initial twelve (12) months of this Agreement
shall not at any time exceed an amount equal to ten (10) per cent of the
fee paid or accrued and payable by such Fund (as of the date of the
liability) in respect of the accounting and administrative services
provided pursuant to the Agreement.
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13.3 State Street shall at all times employ a then current version of one of
the leading commercially available virus detection software programs to
test the on-site hardware and software applications utilized by it to
deliver the Services to determine that such hardware and software does
not contain any computer code designed to disrupt, disable, harm, or
otherwise impede operation. With respect to any applications utilized on
a remote basis, State Street shall use commercially reasonable efforts
to obtain a similar representation or commitment from the third party
provider of such application.
00.0 Xxxxx Xxxxxx shall at its expense retain a firm of independent auditors
to perform an annual audit of the internal accounting controls and
procedures employed by State Street in the performance of the Services
and to issue a detailed report thereon and shall provide to each Fund a
copy of such report within ten (10) Business Days of its issue by the
independent auditors. The first such annual audit shall be carried out
in the fourth quarter of 0000. Xxxxx Xxxxxx shall also allow each Fund's
independent auditors and the corresponding personnel of each Fund's
investment adviser reasonable access to perform their own audit of State
Street's internal accounting controls, provided, however, that the
frequency and scope of such audits shall be as agreed by the JSC from
time to time.
13.5 Upon request of a Fund, State Street shall from time to time as
appropriate, furnish to such Fund a letter setting forth the insurance
coverage maintained by State Street, any changes in such coverage which
may have occurred from the date of the last such request and any claim
relating to the Fund which State Street may have made under such
insurance.
14. FEES AND EXPENSES.
14.1 In consideration of the provision of the Services by State Street, each
Fund (or Xxxxxxx Xxxxx Investment Managers, L.P., for those Funds
identified on Schedule 1 hereto as Funds for which its investment
adviser pays accounting costs) shall pay to State Street such fees and
shall reimburse State Street such expenses as may be agreed by the
parties from time to time in a separate written fee schedule.
14.2 Each Fund will bear all expenses that are incurred in its operation and
not specifically assumed by State Street. Expenses to be borne by each
Fund, include, but are not limited to: organizational expenses; cost of
services of independent accountants and outside legal and tax counsel
(including such counsel's review of the Fund's registration statement,
proxy materials, federal and state tax qualification as a regulated
investment company and other reports and materials prepared by State
Street under this Agreement); cost of any services contracted for by the
Fund directly from parties other than State Street; cost of trading
operations and brokerage fees, commissions and transfer taxes in
connection with the purchase and sale of securities for the Fund;
investment advisory fees; taxes, insurance premiums and other fees and
expenses applicable to its operation; costs incidental to any meetings
of shareholders including, but not limited to, legal and independent
accountants' fees, proxy filing fees and the costs of preparation,
printing and mailing of any proxy materials; costs incidental to Board
meetings, including fees and expenses of Board members; the salary and
expenses of any officer, director\trustee or employee of the Fund; costs
incidental to the preparation, printing and distribution of the Fund's
registration statements and any amendments thereto and shareholder
reports; cost of typesetting and printing of prospectuses; cost of
preparation and filing of the Fund's tax returns, Form N-1A or N-2, and
all notices, registrations and amendments associated with applicable
federal and state tax and securities laws; all applicable
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registration fees and filing fees required under federal and state
securities laws; and fidelity bond and directors' and officers'
liability insurance.
15. JOINT SERVICES COMMITTEE.
15.1 Following the signing of this Agreement, State Street and the Funds, in
conjunction with MLIM and Princeton Administrators, L.P. (collectively,
the "MLIM Group") which have entered into separate Administrative
Services Agreements with State Street, shall establish a Joint Services
Committee (the "JSC") comprised of an equal number of representatives
appointed to represent State Street and the MLIM Group (the "Committee
Members"). For purposes of this section, the MLIM Group shall be treated
as one entity in terms of their ability to appoint representatives to
the JSC. Except as otherwise agreed, a meeting shall not be validly
constituted unless an equal number of representatives from the MLIM
Group and State Street are present. The JSC shall continue in existence
after termination of this Agreement until such time as all activities
performed by State Street under this Agreement have been transferred to
a successor service provider. All parties shall be entitled from time to
time to replace any of their representatives (and shall notify one
another of their intention to do so). The JSC shall monitor the progress
and performance of this Agreement in relation to the Services and shall
meet on a regular basis no less frequently than quarterly unless
otherwise agreed. Each of State Street and the MLIM Group shall also be
entitled to convene meetings of the JSC by giving notice to all members
of the JSC. A representative of the Funds shall chair all meetings of
the JSC. The minutes shall be kept by State Street and, subject to
review of all parties, issued to the MLIM Group. The JSC shall establish
its own procedures and each party shall use all reasonable endeavors to
meet the actions agreed at those meetings and cooperate with the other
to provide personnel, resources and actions to meet their obligations
under this Agreement.
00.0 Xxxxx Xxxxxx shall provide to the JSC and the representative(s) of the
MLIM Group a monthly report in such form as the Committee Members shall
agree (the "Key Performance Indicator Report") showing the following
performance levels achieved by State Street in providing the relevant
Services including, but not limited to:
15.2.1 the average performance in the previous 12 months;
15.2.2 the month with the highest and lowest performance levels in the
previous 12 months; and
15.2.3 the performance in each month since the previous meeting.
15.3 The JSC shall be responsible for:
15.3.1 determining whether a Service is an Existing Service or a New
Service and, for this purpose, a Service shall be determined to
be an Existing Service if, although that Service is not
described in a Service Level Agreement, it is a service which a
Fund can demonstrate (to the reasonable satisfaction of State
Street) has been provided or made available prior to the date of
this Agreement by MLIM to one or more of the Funds.
15.3.2 oversight of the performance of the Services;
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15.3.3 oversight of the performance by State Street, each Fund and
third parties of their duties under the Service Level Agreement;
15.3.4 determining when and where revisions need to be made to this
Agreement and to the Service Level Agreement(s) to more
adequately meet or address the service requirements of the Funds
from time to time; and
15.3.5 determining changes to be made in the Services as a result of
changes in any law, rule or regulation applicable to the Funds.
16. REPRESENTATIONS AND WARRANTIES OF XXXXX XXXXXX
00.0 Xxxxx Xxxxxx represents and warrants to each Fund that:
16.1.1 It is a Massachusetts trust company, duly organized and existing
under the laws of The Commonwealth of Massachusetts;
16.1.2 It has the corporate power and authority to carry on its
business in The Commonwealth of Massachusetts and the State of
New Jersey;
16.1.3 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement;
16.1.4 No legal or administrative proceedings have been instituted or
threatened which would impair State Street's ability to perform
its duties and obligations under this Agreement; and
16.1.5 Its entrance into this Agreement shall not cause a material
breach or be in material conflict with any other agreement or
obligation of State Street or any law or regulation applicable
to it.
17. REPRESENTATIONS AND WARRANTIES OF THE FUNDS
17.1 Each Fund represents and warrants to State Street that:
17.1.1 It is a corporation or business trust, as the case may be, duly
organized, existing and in good standing under the laws of the
jurisdiction of its incorporation or establishment;
17.1.2 It has the requisite corporate or trust power and authority
under applicable laws and by its Constitutive Documents to enter
into and perform this Agreement;
17.1.3 All requisite proceedings have been taken to authorize it to
enter into and perform this Agreement;
17.1.4 It is an investment company properly registered under the 1940
Act;
17.1.5 A registration statement under the 1933 Act and the 1940 Act has
been filed and, if the Fund is offering securities in a
transaction that requires registration under the 1933 Act,
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will be effective and remain effective during the term of this
Agreement as required by applicable law. The Fund also warrants
to State Street that as of the effective date of this Agreement,
all necessary filings under the securities laws of the states in
which the Fund offers or sells its shares have been made;
17.1.6 No legal or administrative proceedings have been instituted or
threatened which would impair the Fund's ability to perform its
duties and obligations under this Agreement; and
17.1.7 Its entrance into this Agreement will not cause a material
breach or be in material conflict with any other agreement or
obligation of the Fund or any law or regulation applicable to
it.
18. CONFIDENTIALITY
The parties hereto agree that each shall treat confidentially the terms
and conditions of this Agreement and all information provided by each
party to the other regarding its business and operations. All
confidential information provided by a party hereto, including nonpublic
personal information pursuant to Regulation S-P of the Securities and
Exchange Commission, shall be used by any other party hereto solely for
the purpose of rendering services pursuant to this Agreement and, except
as may be required in carrying out this Agreement, shall not be
disclosed to any third party without the prior consent of such provident
party. The foregoing shall not be applicable to any information that is
publicly available when provided or thereafter becomes publicly
available other than through a breach of this Agreement, or that is
required to be disclosed by any regulatory authority, any auditor or
legal counsel of the parties hereto, by judicial or administrative
process or otherwise by applicable law or regulation.
19. RECORDS.
00.0 Xxxxx Xxxxxx is authorized to maintain all accounts, registers,
corporate books and other documents and information on magnetic tape or
disc or in accordance with any other mechanical or electronic system
provided that they are capable of being reproduced in legible form in
accordance with applicable laws.
19.2 In compliance with the requirements of Rule 31a-3 under the 0000 Xxx,
Xxxxx Xxxxxx agrees that all records which it maintains for a Fund shall
at all times remain the property of the Fund, shall be readily
accessible during normal business hours, and shall be promptly
surrendered upon the termination of the Agreement or otherwise on
written request. State Street further agrees that all records which it
maintains for a Fund pursuant to Rule 31a-1 under the 1940 Act will be
preserved for the periods prescribed by Rule 31a-2 under the 1940 Act
unless any such records are earlier surrendered as provided above.
Records shall be surrendered in usable machine-readable form. State
Street shall have the right to retain copies of such records subject to
observance of its confidentiality obligations under this Agreement.
20. TERM; TERMINATION
20.1 This Agreement shall become effective as of the date of its execution
and delivery and shall continue in full force and effect for an initial
term of five (5) years (the "Initial Term") with automatic one year
renewals from year to year thereafter unless otherwise terminated in
accordance with this provisions of this Section 20.
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20.2 Upon termination of this Agreement, each Fund shall pay to State Street
upon demand, such fees and reimbursable costs, expenses and
disbursements as may be due as of the date of such termination.
00.0 Xxxxx Xxxxxx shall be entitled to resign its appointment hereunder in
respect of a Fund:
20.3.1 following expiration of the Initial Term, by giving not less
than 270 days notice in writing to the Fund to expire at any
time, provided, however, that State Street will use reasonable
efforts in assisting the Fund to select a successor and if,
after the expiration of the notice period, a new administrative
services provider has not been appointed or is not ready to
assume its duties, State Street shall continue its appointment
hereunder for such additional period as may be mutually agreed
between State Street and the Fund.
20.3.2 with immediate effect at any time prior to the expiry of the
Initial Term if:
20.3.2.1 such Fund shall generally not pay its debts as such
debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the Fund
seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating
to bankruptcy, insolvency or reorganization or relief
of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee, or other
similar official for it or for any substantial part of
its property; or the Fund shall take any corporate
action to authorize any of the preceding actions,
provided, however, that State Street may not resign its
position on the basis that a Fund is being liquidated
or reorganized for reasons other than bankruptcy or
insolvency; or
20.3.2.2 such Fund shall commit a material breach of this
Agreement, which breach, although capable of remedy,
has not been remedied by the Fund within thirty (30)
days of written notice by State Street; or
20.3.2.3 the obligations and duties in respect of a Fund under
the Service Level Agreement have consistently not been
met in a material respect and such failure has not been
resolved by the JSC or the Executive Officers in
accordance with Sections 5.5 through 5.8 above.
20.4 A Fund may terminate the appointment of State Street:
20.4.1 following expiration of the Initial Term, by giving not less
than 270 days notice in writing to expire at any time.
20.4.2 with immediate effect at any time prior to the expiry of the
Initial Term if:
20.4.2.1 State Street shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its
debts generally, or shall make a
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general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against State Street
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, or
other similar official for it or for any substantial part of
its property; or State Street shall take any corporate action
to authorize any of the preceding actions;
20.4.2.2 State Street shall commit any material breach
hereunder, which breach, although capable of remedy,
has not been remedied by State Street within thirty
(30) days of written notice by a Fund;
20.4.2.3 The Fund has substantially liquidated or distributed
its assets to shareholders or a successor following a
vote of such shareholders or other action to dissolve
the Fund; or
20.4.2.4 State Street has consistently failed to meet the key
performance indicators, delivery benchmarks or other
aspects of the Service Level Agreement in a material
respect and such failure has not been resolved by the
JSC or the Executive Officers in accordance with
Sections 5.5 through 5.8 above.
20.4.3 A Fund may terminate this Agreement with effect on the expiry of
the Initial Term by giving twelve months prior written notice or
anytime thereafter in accordance with Section 20.4.1.
20.5 In the event that a Fund terminates one or more series of shares with
respect to which State Street renders Services or a Fund terminates
State Street's appointment pursuant to Section 20.4.2 above, it shall so
notify State Street in writing.
20.6 Following any termination of this Agreement, State Street and each Fund
agree to provide their committed cooperation to effect an orderly
transition of State Street's duties and responsibilities hereunder to a
new administrative services provider(s) selected by the Fund or Funds as
soon as may be reasonably practicable.
20.7 In the event this Agreement is terminated by one or more of the Funds
pursuant to Section 20.4.2.4 or by State Street pursuant to Section
20.3.2.3, State Street shall pay one-half of the direct costs and
expenses incurred by State Street and the Fund(s) in connection with
such termination and the conversion to a successor administrative
services provider and the Fund or Funds involved shall arrange for the
payment of the balance.
21. NOTICES
Any notice or other communication authorized or required by this
Agreement to be given to either party shall be in writing and deemed to
have been given when delivered in person or by confirmed facsimile, or
posted by certified mail, return receipt requested, to the following
address (or such other address as a party may specify by written notice
to the other): if to a Fund c/o Merrill Xxxxx
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Investment Managers, L.P., 000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxxx, XX 00000,
Attn: Treasurer, fax (000) 000-0000; and if to State Street: State
Street Bank and Trust Company, 000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxxx, XX
00000, Attn: Xxxxxx XxXxxxx, fax: 000-000-0000.
22. FURTHER ASSURANCE.
Each party to this Agreement shall do and execute or procure to be done
and executed all necessary acts, deeds, documents and things reasonably
in its power to give effect to this Agreement.
23. NON-EXCLUSIVITY.
23.1 The services of State Street to the Funds hereunder are not to be deemed
exclusive and State Street and any affiliate shall be free to render
similar services to others and to retain for its own use and benefit all
fees or other monies payable thereby and neither State Street nor any
affiliate shall be deemed to be affected with notice of or to be under
any duty to disclose to the Funds any fact or thing which comes to the
notice of State Street or that affiliate or any servant or agent of
State Street or that affiliate in the course of State Street rendering
similar services to others or in the course of its business in any other
capacity or in any manner whatsoever otherwise than in the course of
carrying out its duties hereunder.
23.2 Nothing herein contained shall prevent State Street or any affiliate
from buying holding and dealing in any assets upon its own account or
the account of others notwithstanding that similar assets may be held by
State Street for the account of a Fund.
24. NO PARTNERSHIP OR AGENCY.
Nothing in this Agreement shall be construed as creating a partnership
between State Street and a Fund or as constituting any party the agent
of another party (save as expressly set out in this Agreement) for any
purpose whatsoever and no party shall have the authority or power to
bind another party or to contract in the name of or create a liability
against another party in any way or for any purpose.
25. NON-WAIVER; FORBEARANCE.
The failure of a party to insist upon strict adherence to any term of
this Agreement on any occasion or the failure of a party to exercise or
any delay in exercising a right or remedy under this Agreement
(including any right implied by law) shall not constitute a waiver of
any such term, right or remedy or a waiver of any other rights or
remedies and no single or partial exercise of any right or remedy under
this Agreement shall prevent any further exercise of the right or remedy
or the exercise of any other right or remedy.
26. DISPUTES.
26.1 The parties desire to prevent both disputes and unanticipated issues
arising under or relating to this Agreement. The parties further desire
to resolve such disputes and unanticipated issues that nevertheless do
occur by use of processes that are intended to avoid and prevent
delaying or impairing in any way the performance by all parties of their
respective obligations under this
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Agreement. Therefore, the parties have agreed to utilize the processes
specified below in this Section 26 to resolve certain disputes, as
described below, arising under or relating to this Agreement.
26.2 The parties agree that any issue(s) which may arise in connection with
the Agreement shall initially be referred to the JSC, which shall
establish a deadline for resolution of each matter submitted to it.
26.3 If the JSC has not fully resolved such issue(s) by the stated deadline,
then the matter shall be referred to the Executive Officers for
resolution.
26.4 If the Executive Officers are unable to resolve the matter within thirty
(30) Business Days of the referral, and if (but only if) all relevant
parties agree in writing within five (5) Business Days of the
aforementioned deadline, then a mutually-acceptable Professional
Mediator (as defined below) may be utilized to review the open issue(s)
and attempt to facilitate a resolution within thirty (30) Business Days
of referral of the issue(s). The parties will mutually determine the
location, date, duration, and process for any such mediation effort,
which shall be in all respects advisory to, and not binding on, the
parties. State Street shall pay one-half of the costs of the
Professional Mediator and the Fund or Funds involved shall arrange for
the payment of the balance.
26.5 To be considered as the Professional Mediator, an individual must have
experience in the investment and/or administrative services industry/ies
(preferably both). Any individual employed during the last two (2)
calendar years by any party or any party's current primary legal,
accounting, or consulting firm may not be utilized.
26.6 In order to enable and facilitate candor and completeness during, and
the optimal potential benefits of, the mediation process, both (1) the
parties' respective contentions, communications, documents, and/or
submissions, if any, during the mediation, and (2) the analysis,
comments, and/or recommendations of the Professional Mediator, if any
(x) will remain confidential among the parties (to the extent
permissible under applicable law, State Street and each Fund hereby
acknowledging that State laws and/or regulations may require the public
availability of some or all information and documents relating to this
Agreement) and (y) may not be asserted, admitted, or otherwise utilized
by any party as evidence against another party in any later or
simultaneous mediation, binding arbitration, litigation, or otherwise.
26.7 If either (i) following a failure by the Executive Officers to resolve
the matter, the relevant parties do not agree on use of a Professional
Mediator or (ii) the open issue(s) have not been resolved within thirty
(30) Business Days of the conclusion of such mediation effort, then
resolution between the parties' will be deemed to have failed and each
party shall be free to enforce of its legal rights under this Agreement
in such manner as it shall deem fit.
27. REMEDIES ARE CUMULATIVE.
Except as expressly provided in this Agreement, the rights and remedies
contained in this Agreement are cumulative and not exclusive of any
rights or remedies provided by law.
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28. REPRODUCTION OF DOCUMENTS
This Agreement and all schedules, exhibits, attachments and amendments
hereto may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties
hereto each agree that any such reproduction shall be admissible in
evidence as the original itself, subject to any challenge on the grounds
that the reproduction has been materially altered so that it does not
conform to the terms of the original agreement, in any judicial or
administrative proceeding, whether or not the original is in existence
and whether or not such reproduction was made by a party in the regular
course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
29. VARIATION OF AGREEMENT.
No variation, amendment or modification of this Agreement shall be valid
unless it is in writing and signed for or on behalf of each party
hereto.
30. ASSIGNABILITY
This Agreement shall not be assigned by either State Street or a Fund
without the prior consent in writing of the other party, except that
State Street may assign this Agreement to a successor of all or a
substantial portion of its business, or to a party controlling,
controlled by or under common control with State Street.
31. SUCCESSORS
This Agreement shall be binding on and shall inure to the benefit of the
Fund and State Street and their respective successors and permitted
assigns.
32. SEVERABILITY
In the event that any part of this Agreement shall be determined to be
void or unenforceable for any reason, the remainder of this Agreement
shall be unaffected thereby (unless the purpose of the agreement is
substantially frustrated by such determination), and shall be
enforceable in accordance with the remainder of its terms as if the void
or unenforceable part were not part hereof.
33. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall, when executed and delivered be an original, but all the
counterparts taken together shall constitute one and the same agreement.
34. LIMITATION ON LIABILITY OF TRUSTEES.
In relation to each Fund which is a business trust, this Agreement is
executed and made by the Trustees of the Fund not individually, but as
trustees under the Declarations of Trust of the Fund and the obligations
of this Agreement are not binding upon any of such Trustees or upon any
of the shareholders of the Fund individually, but bind only the trust
estate of the Fund.
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35. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without regard to the conflicts of law
principles thereof.
36. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between State Street and
each Fund on the subject matter hereof and supersedes and terminates as
of the date hereof, all prior oral or written agreements, arrangements
or understandings between the parties.
[Remainder of Page Intentionally Blank]
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SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their officers designated below as of the date first written above.
STATE STREET BANK AND TRUST COMPANY
By:
-------------------------------------
Name: Xxxxxx XxXxxxx
Title: Senior Vice President
XXXXX X. XXXXX,
President
for and on behalf of the Funds listed on Schedule 1 hereto
----------------------------------------------------------
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SCHEDULE 1
List of Funds
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EXHIBIT 1
Instrument of Accession
Reference is hereby made to the Administrative Services Agreement (the
"Agreement") dated December 29, 2000 by and between STATE STREET BANK AND TRUST
COMPANY ("State Street") and each entity listed on Schedule 1 thereto or which
has or shall become a signatory thereto by execution of an instrument of
accession substantially in the form hereof.
In order that it may become a party to the aforesaid Agreement, including,
without limitation, any and all schedules and exhibits thereto, [Fund Name]
agrees and binds itself to the terms and conditions thereof and acknowledges
that by its execution and delivery of this Instrument it shall assume all of the
obligations and shall be entitled to all of the rights of a Fund (as such term
is defined in the Agreement), as if it were an original party thereto.
This Instrument of Accession shall take effect and shall become a part of said
Agreement immediately upon its execution and delivery.
Executed as of the date set forth below under the laws of the State of New York.
[NAME OF FUND]
By:
-------------------------------------
Name:
Title:
Accepted and agreed to:
STATE STREET BANK AND TRUST COMPANY
By:
-------------------------------------
Name:
Title:
Date:
-------------
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EXHIBIT 2
Compliance Monitoring Services Addendum
1. DEFINITIONS.
For purposes of this addendum (the "Addendum"):
"Contract Year" means the twelve-month period beginning on the
commencement date of the Compliance Monitoring Service in respect of a
Portfolio and each subsequent twelve-month period thereafter.
"Compliance Test" means periodic checks carried out by State Street to
determine or assist in the determination of compliance or non-compliance
by a Portfolio with the investment guidelines, restrictions and policies
specified for such Portfolio in a Test Matrix or as required by the
Service Level Agreement, including without limitation the tests to be
carried out pursuant to Section 4.1.9 of the Agreement and Sections 11.1
and 9.11 of the Service Level Agreement relating to AMPS Compliance and
Subchapter "M" and Subchapter "L" Compliance (as applicable in each
case, the "Investment Criteria")
"Compliance Breach" means, as applicable in relation to the test being
conducted, the failure of a Portfolio to comply with any of the
Investment Criteria specified for such Portfolio in the applicable Test
Matrix or the Service Level Agreement.
"Compliance Monitoring Services" means the performance by State Street
of the Compliance Tests set forth in a Test Matrix or as required by the
Service Level Agreement with respect to one or more Portfolios
designated therein.
"Compliance Report" means, as applicable in relation to the test being
conducted, a report containing the results of the Compliance Tests
carried out by State Street.
"Test Matrix" means State Street's standard form test matrix, together
with any exhibits or attachments thereto, setting forth the Investment
Criteria, Compliance Tests to be carried out, Portfolios to be tested
and frequency of tests, as agreed between State Street and a Fund from
time to time.
"Portfolio" means each portfolio of assets of a Fund in respect of which
a Fund has requested State Street to carry out Compliance Tests.
2. COMPLIANCE MONITORING SERVICES
2.1 Subject to the general terms and conditions of the Agreement and Section
3 below, State Street agrees to carry out the Compliance Tests set forth
in a Test Matrix or the Service Level Agreement, as the case may be,
with respect to one or more Portfolios designated therein as may be
agreed from time to time by State Street and a Fund.
2.2 Unless otherwise specified in a Test Matrix or the Service Level
Agreement, as the case may be, all Compliance Tests will be based on
unaudited daily, monthly or other appropriate period end
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data obtained from the record keeping systems employed by State Street
and will utilize standard dictionary classifications with respect to all
assets and each Compliance Test.
2.3 State Street shall communicate Compliance Breaches and Compliance
Reports to the relevant Fund at such times and in such manner as may be
agreed from time to time between State Street and the Fund; provided
that in carrying out the Compliance Monitoring Services, State Street
shall report Compliance Breaches to a Fund promptly after becoming aware
of any such breach.
2.4 The Compliance Monitoring Services will commence in respect of a
Portfolio at such time as may be agreed from time to time between State
Street and the Fund.
3. LIABILITY
3.1 Each Fund acknowledges and agrees that State Street shall assume no duty
to discharge any legal or regulatory obligation imposed on a Fund or its
investment adviser to ensure or otherwise monitor investment or legal
compliance by the Fund.
3.1 Except as expressly set forth in Section 3.2 below, State Street shall
have no liability for any loss, liability, damage, claim, cost or
expense, in contract, tort or otherwise (including, but not limited to,
any liability relating to qualification of a Fund as a regulated
investment company or any liability relating to a Fund's compliance with
any federal or state tax or securities statute, regulation or ruling),
whether ordinary, direct, indirect, consequential, incidental, special,
punitive or exemplary arising out or in connection with the Compliance
Monitoring Services or any decision made or action taken by any party in
reliance upon such service, even if State Street has been advised of the
possibility of such loss, damage or expense and regardless of the form
of action in which a claim is brought.
3.2 In the event a Fund incurs a loss or liability with respect to a
Portfolio by reason of State Street's fraud, bad faith, willful default
or negligence in the performance of the Compliance Monitoring Services,
State Street shall reimburse the Fund an amount in respect of such loss
or liability up to (but not in excess of) the fees paid or accrued and
payable by the Fund for the Compliance Monitoring Services in respect of
such Portfolio, provided, however, that in no event will the aggregate
liability of State Street for the provision of Compliance Monitoring
Services in respect of any Portfolio in any Contract Year exceed the
annual fee payable by the Fund for such services in respect of such
Portfolio. For purposes of this Section 3.2, the annual fee payable by a
Fund for Compliance Monitoring Services shall be deemed to be an amount
equal to ten (10) per cent of the aggregate annual fee payable by such
Fund to State Street in respect of the accounting and administrative
services provided pursuant to the Agreement.
3.3 The liability of State Street under Section 3.2 for any loss shall be
limited to the extent of its relative degree of fault in relation to
that of the party responsible for the management of the Portfolio. To
the extent that a Fund and State Street are unable to agree initially as
to the relative degree of fault, the particular matter shall be referred
to the JSC, which shall refer the matter to a committee of
representatives of State Street and the Funds appointed by the JSC. To
the extent that the committee is unable to reach a determination of
relative degree of fault, and the dispute is not subsequently resolved
by the JSC, the matter shall be resolved under the dispute resolution
procedures set forth in Section 26 of the Agreement.
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3.4 Notwithstanding Section 3.2, State Street shall be without liability to
a Fund for any loss or liability incurred subsequent to a Fund or the
investment adviser of the Fund becoming aware of a Compliance Breach.
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