Exhibit 99.10
ADMINISTRATION AGREEMENT
Agreement dated as of , 199 by and between State
Street Bank and Trust Company, a Massachusetts trust company (the
"Administrator"), and ____________ (the "Fund").
WHEREAS, the Fund is registered as [an open-end/a closed-end],
management investment company under the Investment Company Act of 1940, as
amended (the " 1940 Act"); and
WHEREAS, the Fund desires to retain the Administrator to
furnish certain administrative services to the Fund, and the Administrator 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, the parties hereto agree as follows:
1. APPOINTMENT OF ADMINISTRATOR
The Fund hereby appoints the Administrator to act as
administrator with respect to the Fund for purposes of providing certain
administrative services for the period and on the terms set forth in this
Agreement. The Administrator accepts such appointment and agrees to render the
services stated herein.
The Fund will initially consist of the portfolio(s) and/or
class(es) of shares (each an "Investment Fund") listed in Schedule A to this
Agreement. In the event that the Fund establishes one or more additional
Investment Funds with respect to which it wishes to retain the Administrator to
act as administrator hereunder, the Fund shall notify the Administrator in
writing. Upon written acceptance by the Administrator, such Investment Fund
shall become subject to the provisions of this Agreement to the same extent as
the existing Investment Funds, except to the extent that such provisions
(including those relating to the compensation and expenses payable by the Fund
and its Investment Funds) may be modified with respect to each additional
Investment Fund in writing by the Fund and the Administrator at the time of the
addition of the Investment Fund.
2. DELIVERY OF DOCUMENTS
The Fund will promptly deliver to the Administrator copies of
each of the following documents and all future amendments and supplements, if
any:
a. The Fund's charter document and by-laws;
b. The 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
Investment Funds and all amendments and supplements
thereto as in effect from time to time;
c. Certified copies of the resolutions of the Board of
[Directors/Trustees] of the Fund (the "Board")
authorizing (1) the Fund to enter into this Agreement and
(2) certain individuals on behalf of the Fund to (a) give
instructions to the Administrator pursuant to this
Agreement and (b) sign checks and pay expenses;
d. A copy of the investment advisory agreement between the
Fund and its investment adviser; and
e. Such other certificates, documents or opinions which the
Administrator may, in its reasonable discretion, deem
necessary or appropriate in the proper performance of its
duties.
3. REPRESENTATION AND WARRANTIES OF THE ADMINISTRATOR
The Administrator represents and warrants to the Fund that:
a. It is a Massachusetts trust company, duly organized,
existing and in good standing under the laws of The
Commonwealth of Massachusetts;
b. It has the corporate power and authority to carry on its
business in The Commonwealth of Massachusetts;
c. All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement;
d. No legal or administrative proceedings have been
instituted or threatened which would impair the
Administrator's ability to perform its duties and
obligations under this Agreement; and
e. Its entrance into this Agreement shall not cause a
material breach or be in material conflict with any other
agreement or obligation of the Administrator or any law
or regulation applicable to it.
4. REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to the Administrator that:
a. It is a [form of organization], duly organized
and existing and in good standing under the laws of ;
b. It has the corporate power and authority under applicable
laws and by its charter and by-laws to enter into and
perform this Agreement;
c. All requisite proceedings have been taken to authorize it
to enter into and perform this Agreement;
d. It is an investment company properly registered under the
1940 Act;
e. A registration statement under the 1933 Act and the 1940
Act has been filed and will be effective and remain
effective during the term of this Agreement. [If Blue Sky
services are not to be provided by the Administrator: The
Fund also warrants to the Administrator that all
necessary filings under the securities laws of the states
in which the Fund offers or sells its shares will have
been made and will be current during the term of this
Agreement; If Blue Sky services are to be provided by the
Administrator: The Fund also warrants to the
Administrator 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;]
f. 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;
g. Its entrance into this Agreement shall 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; and
h. As of the close of business on the date of this
Agreement, the Fund is authorized to issue shares of
[capital stock/beneficial interest], and it will
initially offer shares, in the authorized amounts as set
forth in Schedule A to this Agreement.
5. ADMINISTRATION SERVICES
The Administrator shall provide the following services, in
each case, 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 procedures which may be established from time to time between the Fund and
the Administrator:
a. Oversee the determination and publication of the Fund's
net asset value in accordance with the Fund's policy as
adopted from time to time by the Board;
b. Oversee the maintenance by the Fund's custodian of
certain books and records of the Fund as required under
Rule 31a-l(b) of the 1940 Act;
c. Prepare the Fund's federal, state and local income tax
returns for review by the Fund's independent accountants
and filing by the Fund's treasurer;
d. Review calculation, submit for approval by officers of
the Fund and arrange for payment of the Fund's expenses;
e. 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,
and arrange for the printing and dissemination of such
reports and communications to shareholders;
f. Prepare for 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 financial information required
by Form [N-lA/N-2] and such other reports, forms or
filings as may be mutually agreed upon;
g. 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;
h. Make such reports and recommendations to the Board
concerning the performance of the independent accountants
as the Board may reasonably request;
i. Make such reports and recommendations to the Board
concerning the performance and fees of the Fund's
custodian and transfer and dividend disbursing agent
("Transfer Agent") as the Board may reasonably request or
deems appropriate;
j. Oversee and review calculations of fees paid to the
Fund's investment adviser, custodian and Transfer Agent;
k. Consult with the Fund's officers, independent
accountants, legal counsel, custodian and Transfer Agent
in establishing the accounting policies of the Fund;
1. Review implementation of any dividend reinvestment
programs authorized by the Board;
m. Respond to, or refer to the Fund's officers or Transfer
Agent, shareholder inquiries relating to the Fund;
n. Provide periodic testing of portfolios 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;
[Items o through aa to be inserted only if Legal Administration Services are to
be provided.]
o. Review and provide assistance on shareholder
communications;
p. Maintain general corporate calendar;
q. Maintain copies of the Fund's charter and by-laws;
r. File annual and semi-annual shareholder reports with the
appropriate regulatory agencies; review text of
"President's letters" to shareholders and "Management's
Discussion of Fund Performance" (which shall also be
subject to review by the Fund's legal counsel);
s. Organize, attend and prepare minutes of shareholder
meetings;
t. Provide consultation on regulatory matters relating to
portfolio management, Fund operations and any potential
changes in the Fund's investment policies, operations or
structure; act as liaison to legal counsel to the Fund
and, where applicable, to legal counsel to the Fund's
independent Board members;
u. Maintain continuing awareness of significant emerging
regulatory and legislative developments which may affect
the Fund, update the Board and the investment adviser on
those developments and provide related planning
assistance where requested or appropriate;
v. Develop or assist in developing guidelines and procedures
to improve overall compliance by the Fund and its various
agents;
w. Counsel and 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;
Subject to review and comment by the Fund's legal counsel:
x. Prepare and file with the SEC amendments to the Fund's
registration statement, including updating the Prospectus
and Statement of Additional Information, where
applicable;
y. Prepare and file with the SEC proxy statements; provide
consultation on proxy solicitation matters;
z. Prepare agenda and background materials for Board
meetings, make presentations where appropriate, prepare
minutes and follow-up on matters raised at Board
meetings; and
aa. Prepare and file with the SEC Rule 24f-2 notices.
[bb. Prepare and file state registrations of the Fund's
securities pursuant to the specific instructions of the
Fund and as detailed in Schedule C to this Agreement.]
[Item bb to be inserted only if Blue Sky services are to
be provided.]
The Administrator shall provide the office facilities and the personnel required
by it to perform the services contemplated herein.
6. FEES; EXPENSES; EXPENSE REIMBURSEMENT
The Administrator shall receive from the Fund such
compensation for the Administrator's services provided pursuant to this
Agreement as may be agreed to from time to time in a written fee schedule
approved by the parties and initially set forth in Schedule B to this Agreement.
The fees are accrued daily and billed monthly and shall be due and payable upon
receipt of the invoice. Upon the termination of this Agreement before the end of
any month, the fee for the part of the month before such termination shall be
prorated according to the proportion which such part bears to the full monthly
period and shall be payable upon the date of termination of this Agreement. In
addition, the Fund shall reimburse the Administrator for its out-of-pocket costs
incurred in connection with this Agreement.
The Fund agrees promptly to reimburse the Administrator for
any equipment and supplies specially ordered by or for the Fund through the
Administrator and for any other expenses not contemplated by this Agreement that
the Administrator may incur on the Fund's behalf at the Fund's request or with
the Fund's consent.
The Fund will bear all expenses that are incurred in its
operation and not specifically assumed by the Administrator. Expenses to be
borne by the 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 the Administrator under this
Agreement); cost of any services contracted for by the Fund directly from
parties other than the Administrator; 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 accounting
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 Form N-SAR, and all notices, registrations and amendments
associated with applicable federal and state tax and securities laws; all
applicable registration fees and filing fees required under federal and state
securities laws; fidelity bond and directors' and officers' liability insurance;
and cost of independent pricing services used in computing the Fund's net asset
value.
The Administrator is authorized to and may employ or associate
with such person or persons as the Administrator may deem desirable to assist it
in performing its duties under this Agreement; provided, however, that the
compensation of such person or persons shall be paid by the Administrator and
that the Administrator shall be as fully responsible to the Fund for the acts
and omissions of any such person or persons as it is for its own acts and
omissions.
7. INSTRUCTIONS AND ADVICE
At any time, the Administrator may apply to any officer of the
Fund for instructions and may consult with its own legal counsel or outside
counsel for the Fund or the independent accountants for the Fund at the expense
of the Fund, with respect to any matter arising in connection with the services
to be performed by the Administrator under this Agreement. The Administrator
shall not be liable, and shall be indemnified by the Fund, for any action taken
or omitted by it in good faith in reliance upon any such instructions or advice
or upon any paper or document believed by it to be genuine and to have been
signed by the proper person or persons. The Administrator shall not be held to
have notice of any change of authority of any person until receipt of written
notice thereof from the Fund. Nothing in this paragraph shall be construed as
imposing upon the Administrator any obligation to seek such instructions or
advice, or to act in accordance with such advice when received.
8. LIMITATION OF LIABILITY AND INDEMNIFICATION
The Administrator shall be responsible for the performance of
only such duties as are set forth in this Agreement and, except as otherwise
provided under Section 6, shall have no responsibility for the actions or
activities of any other party, including other service providers. The
Administrator shall have no liability for any error of judgement or mistake of
law or for any loss or damage resulting from the performance or nonperformance
of its duties hereunder unless solely caused by or resulting from the gross
negligence or willful misconduct of the Administrator, its officers or
employees. The Administrator shall not be liable for any special, indirect,
incidental, or consequential damages of any kind whatsoever (including, without
limitation, attorneys' fees) under any provision of this Agreement or for any
such damages arising out of any act or failure to act hereunder. In any event,
the Administrator's liability under this Agreement shall be limited to its total
annual compensation earned and fees paid hereunder during the preceding twelve
months for any liability or loss suffered by the Fund including, but not limited
to, any liability relating to qualification of the Fund as a regulated
investment company or any liability relating to the Fund's compliance with any
federal or state tax or securities statute, regulation or ruling.
The Administrator shall not be responsible or liable for any
failure or delay in performance of its obligations under this Agreement arising
out of or caused, directly or indirectly, by circumstances beyond its control,
including without limitation, work stoppage, power or other mechanical failure,
computer virus, natural disaster, governmental action or communication
disruption, nor shall any such failure or delay give the Fund the right to
terminate this Agreement.
The Fund shall indemnify and hold the Administrator harmless
from all loss, cost, damage and expense, including reasonable fees and expenses
for counsel, incurred by the Administrator resulting from any claim, demand,
action or suit in connection with the Administrator's acceptance of this
Agreement, any action or omission by it in the performance of its duties
hereunder, or as a result of acting upon any instructions reasonably believed by
it to have been duly authorized by the Fund, provided that this indemnification
shall not apply to actions or omissions of the Administrator, its officers or
employees in cases of its or their own gross negligence or willful misconduct.
The Fund will be entitled to participate at its own expense in
the defense, or, if it so elects, to assume the defense of any suit brought to
enforce any liability subject to the indemnification provided above. In the
event the Fund elects to assume the defense of any such suit and retain counsel,
the Administrator or any of its affiliated persons, named as defendant or
defendants in the suit, may retain additional counsel but shall bear the fees
and expenses of such counsel unless (i) the Fund shall have specifically
authorized the retaining of such counsel or (ii) the Administrator shall have
determined in good faith that the retention of such counsel is required as a
result of a conflict of interest.
The indemnification contained herein shall survive the
termination of this Agreement.
9. CONFIDENTIALITY
The Administrator agrees that, except as otherwise required by
law or in connection with any required disclosure to a banking or other
regulatory authority, it will keep confidential all records and information in
its possession relating to the Fund or its shareholders or shareholder accounts
and will not disclose the same to any person except at the request or with the
written consent of the Fund.
10. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS; RECORDS
The Fund assumes full responsibility for complying with all
securities, tax, commodities and other laws, rules and regulations applicable to
it.
In compliance with the requirements of Rule 31a-3 under the
1940 Act, the Administrator agrees that all records which it maintains for the
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. The
Administrator further agrees that all records which it maintains for the 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.
11. SERVICES NOT EXCLUSIVE
The services of the Administrator to the Fund are not to be
deemed exclusive, and the Administrator shall be free to render similar services
to others. The Administrator shall be deemed to be an independent contractor and
shall, unless otherwise expressly provided herein or authorized by the Fund from
time to time, have no authority to act or represent the Fund in any way or
otherwise be deemed an agent of the Fund.
12. TERM, TERMINATION AND AMENDMENT
This Agreement shall become effective on _______. The
Agreement shall remain in effect for a period of _______ from [the effective
date/the date the Fund first accepts money for investment], and shall
automatically continue in effect thereafter with respect to the Fund unless
terminated in writing by either party at the end of such period or thereafter on
sixty (60) days' prior written notice given by either party to the other party.
Termination of this Agreement with respect to any given Investment Fund shall in
no way affect the continued validity of this Agreement with respect to any other
Investment Fund. Upon termination of this Agreement, the Fund shall pay to the
Administrator such compensation and any reimbursable expenses as may be due
under the terms hereof as of the date of such termination, including reasonable
out-of-pocket expenses associated with such termination. This Agreement may be
modified or amended from time to time by mutual written agreement of the parties
hereto.
13. 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 the
Fund: __________________________, Attn: __________, fax: __________; if to the
Administrator: State Street Bank and Trust Company, 0000 Xxxxxxxx Xxxxx, Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000, Attn: Xxxxx X. Xxxxxx, Vice President and Senior
Counsel, fax: (000) 000-0000.
14. NON-ASSIGNABILITY
This Agreement shall not be assigned by either party hereto
without the prior consent in writing of the other party, except that the
Administrator 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 the Administrator.
15. SUCCESSORS
This Agreement shall be binding on and shall inure to the
benefit of the Fund and the Administrator and their respective successors and
permitted assigns.
16. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the
parties hereto with respect to the subject matter hereof and supersedes all
previous representations, warranties or commitments regarding the services to be
performed hereunder whether oral or in writing.
17. WAIVER
The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver nor
shall it deprive such party of the right thereafter to insist upon strict
adherence to that term or any term of this Agreement. Any waiver must be in
writing signed by the waiving party.
18. SEVERABILITY
If any provision of this Agreement is invalid or
unenforceable, the balance of the Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance it shall nevertheless
remain applicable to all other persons and circumstances.
19. GOVERNING LAW
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
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.
[NAME OF FUND]
By:_______________________________
Name:_____________________________
Title:____________________________
STATE STREET BANK AND TRUST COMPANY
By:_______________________________
Name:_____________________________
Title:____________________________
ADMINISTRATION AGREEMENT
[NAME OF FUND]
SCHEDULE A
LISTING OF INVESTMENT FUNDS AND AUTHORIZED SHARES
Investment Fund Authorized Shares
ADMINISTRATION AGREEMENT
[NAME OF FUND]
SCHEDULE B
FEES AND EXPENSES
ADMINISTRATION AGREEMENT
[NAME OF FUND]
SCHEDULE C
REGISTRATION OF FUND SHARES
WITH STATE SECURITIES ADMINISTRATORS
AT THE SPECIFIC DIRECTION OF THE FUND, THE ADMINISTRATOR WILL PREPARE REQUIRED
DOCUMENTATION AND REGISTER FUND SHARES IN ACCORDANCE WITH THE SECURITIES LAWS OF
EACH JURISDICTION IN WHICH FUND SHARES ARE TO BE OFFERED OR SOLD PURSUANT TO
INSTRUCTIONS GIVEN TO THE ADMINISTRATOR BY THE FUND.
THE FUND SHALL BE SOLELY RESPONSIBLE FOR THE DETERMINATION (I) OF THOSE
JURISDICTIONS IN WHICH FUND SHARES ARE TO BE REGISTERED AND (II) THE NUMBER OF
FUND SHARES TO BE REGISTERED IN EACH SUCH JURISDICTION. IN THE EVENT THAT THE
ADMINISTRATOR BECOMES AWARE OF (A) THE SALE OF FUND SHARES IN A JURISDICTION IN
WHICH FUND SHARES ARE NOT REGISTERED FOR OFFER AND SALE OR (B) THE SALE OF FUND
SHARES IN EXCESS OF THE NUMBER OF FUND SHARES REGISTERED IN SUCH JURISDICTION,
THE ADMINISTRATOR SHALL REPORT SUCH INFORMATION TO THE FUND, AND IT SHALL BE THE
FUND'S RESPONSIBILITY TO DETERMINE APPROPRIATE CORRECTIVE ACTION AND INSTRUCT
THE ADMINISTRATOR WITH RESPECT THERETO.
The registration services shall consist of the following:
1. Filing of Fund's Application to Register Securities and
amendments, if directed by the Fund;
2. Filing of amendments to the Fund's registration statement;
3. Filing Fund sales reports and advertising literature where
required;
4. Payment at the expense of the Fund of all Fund state registration
and filing fees;
5. Filing the Prospectuses and Statements of Additional Information
and any supplements thereto;
6. Filing of annual reports and proxy statements where required; and
7. The performance of such additional services as the Administrator
and the Fund may agree upon in writing.
Unless otherwise specified in writing by the Administrator, registration
services by the Administrator shall not include determining the availability of
exemptions under a jurisdiction's blue sky law. Any such determination shall be
made by the Fund or its legal counsel. In connection with the services described
herein, the Fund shall issue in favor of the Administrator a power of attorney
to register Fund shares on behalf of the Fund, which power of attorney shall be
substantially in the form of Exhibit I attached hereto.
EXHIBIT I
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, as of _________, 199_ that the undersigned [NAME
OF FUND] with principal offices at __________ (individually the "Fund") makes,
constitutes, and appoints STATE STREET BANK AND TRUST COMPANY (the
"Administrator") with principal offices at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx its lawful attorney-in-fact for it to do as if it were itself
acting, the following:
1. REGISTRATION OF FUND SHARES. The power to register shares of the Fund in
each jurisdiction in which Fund shares are offered or sold and in
connection therewith the power to prepare, execute, and deliver and file
any and all Fund applications, including without limitation, applications
to register shares, consents, including consents to service of process,
reports, including without limitation, all periodic reports, claims for
exemption, or other documents and instruments now or hereafter required or
appropriate in the judgement of the Administrator in connection with the
registration of Fund shares.
2. AUTHORIZED SIGNERS. Pursuant to this Limited Power of Attorney, individuals
holding the titles of Officer, Blue Sky Manager, or Senior Blue Sky
Administrator at the Administrator shall have authority to act on behalf of
the Fund with respect to item 1 above.
The execution of this limited power of attorney shall be deemed coupled with an
interest and shall be revocable only upon receipt by the Administrator of such
termination of authority. Nothing herein shall be construed to constitute the
appointment of the Administrator as or otherwise authorize the Administrator to
act as an officer, director or employee of the Fund.
IN WITNESS WHEREOF, the Fund has caused this Agreement to be executed in its
name and on its behalf by and through its duly authorized officer, as of the
date first written above.
[NAME OF FUND]
By:_________________________
Name:_______________________
Title:______________________
