Exhibit 10.7.3
AMENDMENT NO. 2
TO
ADMINISTRATIVE AND INVESTMENT SERVICES AGREEMENT
(As Amended and Restated)
THIS AMENDMENT NO. 2 TO THE ADMINISTRATIVE AND INVESTMENT SERVICES
AGREEMENT between STATE STREET BANK AND TRUST COMPANY ("`State Street") and the
AMERICAN BAR RETIREMENT ASSOCIATION ("ABRA") is effective as of the 2nd day of
July, 2001.
W I T N E S S E T H:
WHEREAS, State Street and ABRA have heretofore entered into an
Administrative and Investment Services Agreement dated November 9, 1998 (the
"Agreement");
WHEREAS, the parties desire to amend the Agreement to provide for the
inclusion in the Program of investment allocation advice to Program
Participants.
WHEREAS, Section 16.07 of the Agreement permits the Agreement to be
amended by a written instrument executed by ABRA and State Street.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and undertakings, and subject to the terms and
conditions, hereinafter set forth, the parties hereto agree as follows:
1. All capitalized terms used but not defined herein shall have the
respective meanings assigned to such terms by the Agreement.
2. The definition of "Investment Advisor" contained in Section 1.29
of AISA is amended to read as follows:
"1.29 Investment Advisor" means any person or entity (other than
State Street) engaged by State Street pursuant to Section 2.02 to
make recommendations (i) to State Street regarding the acquisition or
disposition of assets held in a Fund, or (ii) to Participants
regarding the allocations of the assets held on their behalf under
the Trusts among the Funds."
3. Section 2.02 of AISA is amended to read as follows:
"2.02 Investment Advisors. State Street may engage one or more
Investment Advisors only in accordance with the following procedures
and subject to the provisions of Sections 2.04, 2.05, 2.06 and 2.08:
(a) With respect to Investment Advisors described in clause (i) of
Section 1.29, subject to Section 4.02:
(i) Each Investment Advisor, if any, shall be identified
in the appropriate Fund Declaration or attachment thereto;
(ii) State Street shall enter into an Investment Advisor
Agreement with each such Investment Advisor, which Investment Advisor
Agreement shall include, among other things (A) representations that
the Investment Advisor is registered or exempt under, or excluded
from, the Investment Advisors Act of 1940, as amended, and is in the
business of acting as a fiduciary with respect to assets of various
retirement plans and trusts and (B) an acknowledgment in writing that
the Investment Advisor is a fiduciary as defined in ERISA with
respect to the applicable assets of the Plans and the Trusts, and
each such agreement may include supplemental guidelines governing the
Investment Advisor's activities;
(iii) If more than one such Investment Advisor is engaged
to advise State Street with respect to a single Fund, each applicable
Investment Advisor Agreement shall designate the portion of the
assets of, contributions and transfers to, and withdrawals and
transfers from such Fund to be allocated to each Investment Advisor;
and
(iv) Such an Investment Advisor shall not be permitted to
take any action with respect to any Fund that, in the reasonable
opinion of State Street, would cause the Fund to cease to qualify as
a fund maintained by a bank within the meaning of (A) Section
3(c)(11) of the Investment Company Act of 1940, as amended, and
successor provision thereto, and (B) Section 3(a)(2) of the
Securities Act of 1933, as amended, and any successor provision
thereto."
(b) With respect to Investment Advisors described in
clause (ii) of Xxxxxxx 0.00, Xxxxx Xxxxxx shall enter into an
agreement with any such Investment Advisor, which agreement shall
include, among other things, that the Investment Advisor is an
"investment manager" as defined in section 3(37) of ERISA and is in
the business of acting as a fiduciary providing investment allocation
advice to
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participants in various retirement plans and trusts and shall
otherwise be in a form approved by ABRA, which approval shall not be
unreasonably withheld."
4. The last sentence of Section 2.04 is amended to read as follows:
"State Street shall give full consideration, and in the case of an
Investment Advisor described in clause (ii) of Section 1.29, due
deference, to each Investment Advisor Recommendation of ABRA and
shall respond to ABRA, no later than thirty (30) days after the date
of State Street's receipt to such Investment Advisor Recommendation,
as to whether, in what manner, and on what time frame such
appointment or reallocation will be effected and the reasons for such
response."
5. The second sentence of Section 2.05 is amended to read as follows:
"State Street shall give full consideration, and in the case of an
Investment Advisor described in clause (ii) of Section 1.29, due
deference, to each Investment Advisor Removal Recommendation of ABRA
and shall respond to ABRA, no later than thirty (30) days after the
date of State Street's receipt to such Investment Advisor
Recommendation, as to whether, in what manner, and on what time frame
such action will be taken with respect to such Investment Advisor and
the reasons therefor."
6. The changes made by this Amendment No. 2 shall be effective for
the period beginning on July 2, 2001 and shall terminate upon the
termination of any Investment Advisor described in clause (ii) of
Section 1.29.
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IN WITNESS WHEREOF, this instrument has been signed on behalf of each
of the parties hereto on this 2nd day of July 2001.
STATE STREET BANK
AND TRUST COMPANY
By: /s/ Xxxx Xxxxxxxxxxx
---------------------------------
Title: Vice-President
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AMERICAN BAR RETIREMENT ASSOCIATION
By:
---------------------------------
President
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