Exhibit 2(k)(5)
ADMINISTRATION AGREEMENT
Agreement effective as of the 1st day of January 2006, by and
between The India Fund, Inc., a Maryland corporation (the "Fund"), and
Blackstone Asia Advisors L.L.C., a Delaware limited liability company (the
"Administrator") (this "Agreement").
WHEREAS, the Fund operates as a closed-end non-diversified
management investment company, and is so registered under the Investment Company
Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Fund desires to retain the Administrator to
provide certain administrative services to the Fund, under the terms and
conditions stated below, and the Administrator is willing to provide such
services for the compensation set forth below;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the parties agree as follows:
1. Appointment. The Fund hereby appoints the Administrator as
administrator of the Fund on the terms set forth in this Agreement, subject to
the overall supervision of the Fund's Board of Directors (the "Board"), and the
Administrator accepts such appointment and agrees that it will be responsible
for the provision of the services set forth in paragraph 2 below.
2. Services and Duties of the Administrator. Subject to the
supervision of the Board, the Administrator will, on a continuing basis, be
responsible for the provision of facilities for meetings of the Board and
shareholders of the Fund and personnel and office facilities sufficient for the
provision of the following services to the Fund:
(a) preparation for review by an officer of the Fund and
filing with the Securities and Exchange Commission (the "SEC") and the
New York Stock Exchange the Fund's annual, semiannual and quarterly
reports and periodic reports to shareholders, preparation for review by
an officer of the Fund of information and reports as may be required by
the New York Stock Exchange and assisting in the preparation of the
financial information relating to the Fund for the Fund's proxy
material and earnings press releases.
(b) preparation of all reports required to be filed with the
SEC based on information provided to it by the Fund or an agent of the
Fund, or such other form as the SEC may substitute, and the filing of
such completed form with the SEC.
(c) coordinating with the Fund's independent accountants and
any sub-administrator in providing the information necessary for such
accountants to complete and audit the Fund's financial statements and
such other reports as may be necessary and to prepare and file the
Fund's federal income and excise tax returns and the Fund's state and
local tax returns and any other required tax returns.
(d) arrangement for the printing and dissemination to
shareholders of the Fund's proxy materials and supervision of the
tabulation of proxies by the Fund's transfer agent.
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(e) negotiation of contractual arrangements with the Fund's
agents, including the custodians, transfer agents, dividend paying
agents, accounting agents, independent accountants, any
sub-administrators and printing companies, and monitoring the
performance of such agents pursuant to such arrangements, including
making such reports and recommendations to the Board concerning the
performance and fees of such agents as the Board may reasonably request
or deems appropriate.
(f) overseeing of the calculation of the Fund's net asset
value in accordance with the Fund's registration statement under the
1940 Act and Securities Act of 1933, as amended, by the Fund's
accounting agent and monitoring the performance of such agent in making
the Fund's net asset value available for public dissemination.
(g) overseeing of the maintenance of the Fund's books and
records under Rule 31a-1 under the 1940 Act by the custodian and
accounting agent, as applicable.
(h) establishment of the accounting policies of the Fund,
establishment of and monitoring of the Fund's operating expense
budgets, processing the payment of bills that have been approved by an
authorized officer of the Fund and reporting to the Fund's management
monthly the amount of expenses incurred and paid during the prior
month.
(i) advising the Board as to the amounts available for
distribution of any periodic dividends and annual distributions that
are to be declared and paid by the Fund to its shareholders;
preparation and arrangement for the printing of dividend notices to
shareholders; and providing the transfer and dividend disbursing agent
and custodian with such information as is required for such parties to
effect the payment of dividends and distributions and to implement the
Fund's dividend reinvestment plan.
(j) if requested by the Board, designating one or more of its
employees to serve as treasurer and/or assistant treasurers of the
Fund.
(k) forwarding promptly to the Fund's counsel any
communications (including notices received under any agreement to which
the Fund is a party) received by the Administrator or its agents on
behalf of the Fund.
(l) assisting the Fund in responding to requests for
information concerning the Fund made by representatives of regulatory
entities having jurisdiction over the Fund.
(m) assisting the Fund in responding to requests for
information concerning the Fund made by shareholders of the Fund and
assisting the Fund in developing a shareholder relationship program.
(n) assisting the Fund's investment adviser, custodian,
counsel, auditors and other agents as generally may be required to
properly carry on the business and operations of the Fund.
(o) monitoring compliance procedures for the Fund, which will
include, without limitation, procedures to monitor compliance with the
Fund's investment objective, policies and limitations, tax matters and
applicable laws and regulations.
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The Administrator will, as applicable, provide the foregoing services and duties
in conjunction with the Fund's accountants, custodian, legal counsel and other
agents and professionals retained by the Fund.
3. Public Inquires. Except as otherwise provided herein, the
Administrator will not be responsible for replying to requests for information
concerning the Fund from shareholders, brokers or the public. The Fund shall
notify the Administrator of the appropriate party to whom such requests should
be directed, and the Administrator will refer such requests to the party
designated by the Fund.
4. Services Not Exclusive. The Administrator's services
hereunder are not deemed to be exclusive, and the Administrator is free to
render administrative or other services to other funds or clients so long as the
Administrator's services under this Agreement are not impaired thereby.
5. Administrative Expenses. During the term of this Agreement,
the Administrator will assume all other expenses incurred by it in connection
with its services under this Agreement, except that the Fund shall reimburse the
Administrator for out-of-pocket expenses incurred by employees of the
Administrator in connection with their attendance at meetings of the Board or
any committee thereof or any other meeting at which the Fund requires the
attendance of any the Administrator employee or employees.
6. Employment of Sub-Administrator. Upon the prior approval of
the Board, the Administrator may employ the services of third parties in
connection with the performances of its obligations under this Agreement.
Without limitation of any of the foregoing, the Administrator may retain one or
more parties to serve as sub-administrators and may subcontract with such
sub-administrators on such terms and conditions as may be agreed to by the
Administrator and such sub-administrator(s) with respect to the performance of
the Administrator's obligations hereunder.
7. Compensation. For the services provided and expenses
assumed by the Administrator under this Agreement, the Fund will pay the
Administrator a fee that is computed monthly and paid quarterly at an annual
rate of: (i) 0.20% of the value of the Fund's average monthly net assets for the
first $1,500,000,000 of the Fund's average monthly net assets and (ii) 0.15% of
the value of the Fund's average monthly net assets in excess of $1,500,000,000
of the Fund's average monthly net assets.
8. Representations and Warranties of the Administrator. The
Administrator represents and warrants to the Fund that:
(a) it is a limited liability company duly organized and
existing under the laws of Delaware;
(b) it is duly qualified to carry on its business in New York;
(c) it is empowered under applicable laws and by its
certificate of formation and operating agreement to enter into and
perform this Agreement;
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(d) all requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement; and
(e) it has or will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
9. Representations and Warranties of the Fund. The Fund
represents and warrants to the Administrator that:
(a) it is a corporation duly organized and existing and in
good standing under the laws of Maryland;
(b) it is empowered under applicable laws and by its articles
of incorporation and by-laws to enter into and perform this Agreement;
(c) all requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement; and
(d) it is currently, and will use its best efforts to continue
to be, in compliance in all material respects with all securities laws
applicable to it.
10. Limitation of Liability. The Administrator will not be
liable for any error of judgment or mistake of law or for any loss suffered by
the Fund or its shareholders in connection with the performance of its duties
under this Agreement, except a loss resulting from willful misfeasance, bad
faith or gross negligence on its part in the performance of its duties or from
reckless disregard by it of its duties under this Agreement ("disabling
conduct"). The Fund agrees to indemnify and hold harmless the Administrator and
its shareholders, officers, directors, employees and agents against any
liability for any damages, expenses (including the reasonable value of time
spent by the Administrator employees) or direct losses reasonably incurred as a
result of any failure of the Fund to comply with the 1940 Act, the Internal
Revenue Code of 1986, as amended, and the rules and regulations promulgated
thereunder, and other legal requirements, and with its investment policies and
limitations as in effect, or as a result of the Administrator's acting as an
administrator pursuant to this Agreement, and not resulting from disabling
conduct; provided that nothing herein shall constitute a waiver or limitation of
any rights which the Fund may have under applicable securities or other laws.
11. Duration and Termination. This Agreement will become
effective the date first above written, and shall continue in effect thereafter
until termination by the Administrator on 90 days' written notice to the Fund or
the Fund upon 60 days' written notice to the Administrator without payment of
any penalty. This Agreement shall automatically terminate upon its assignment by
the Administrator to any entity.
12. Amendment of this Agreement. No provision of this
Agreement may be changed, waived, discharged or terminated orally, but only by
an instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
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13. Miscellaneous.
(a) The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of
the provisions hereof or otherwise affect their construction or effect.
(b) If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby.
(c) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors.
(d) This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original; but such
counterparts shall, together, constitute only one instrument.
(e) All books, records, dates and other information pertaining
to the Fund shall be maintained as confidential by the Administrator
and the Administrator shall not disclose or turn over any of such
information to any other person or entity unless required by law or
requested by the Fund to do so; provided, that the Administrator shall
have no liability for disclosure after the termination of this
Agreement of information concerning the Fund which has already been
disclosed through no fault of the Administrator.
(f) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York; provided, however,
that nothing herein shall be construed as being inconsistent with the
1940 Act.
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IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as of the day and
year first above written.
THE INDIA FUND, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
__________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President
BLACKSTONE ASIA ADVISORS L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxx
__________________________
Name: /s/ Xxxxxx X. Xxxxxxxx
Title: Chief Legal Officer
& VP
