Exhibit h(11)
FORM OF SUB-ADMINISTRATION AND SUB-ACCOUNTING AGREEMENT
Agreement dated as of April 1, 2003 by and among State Street Bank and
Trust Company, a Massachusetts trust company (the "Sub-Administrator/Accounting
Agent"), and Deutsche Investment Management Americas Inc., a Delaware
corporation, Xxxxxxx Fund Accounting Corporation, a Delaware corporation, and
Investment Company Capital Corp., a Maryland corporation (each, an
"Administrator" and, collectively, the "Administrators").
Whereas, each fund (individually, a "Fund" and collectively, the
"Funds") listed on Schedule A is a U.S. registered investment company, separate
account, defined contribution plan, or other type of investment vehicle as
indicated on such Schedule, or a series or portfolio thereof;
Whereas, each Fund has retained the Administrator so indicated on
Schedule A to furnish administrative, fund accounting and recordkeeping services
to it;
Whereas, certain of the Funds as indicated on Schedule A are affiliated
with or sponsored by the Administrators (each, an "Affiliated Fund" and,
collectively, the "Affiliated Funds"); and
Whereas, each Administrator desires to retain the
Sub-Administrator/Accounting Agent to furnish certain administrative, fund
accounting and recordkeeping services with respect to the Funds to which it
provides administrative, fund accounting and recordkeeping services, and the
Sub-Administrator/Accounting Agent 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 SUB-ADMINISTRATOR/ACCOUNTING AGENT
Each Administrator hereby appoints the Sub-Administrator/Accounting
Agent to act as the sub-administrator and sub-accounting agent with respect to
each of its Funds for purposes of providing certain sub-administrative,
sub-accounting and recordkeeping services for the period and upon the terms set
forth in this Agreement. The Sub-Administrator/Accounting Agent accepts such
appointment and agrees to render the services stated herein.
In the event that the Administrators wish to retain the
Sub-Administrator/Accounting Agent to act as the sub-administrator and
sub-accounting agent hereunder with respect to additional portfolios or funds
("Additional Funds") hereinafter established or sponsored by any Administrator
or by other management investment companies that have retained any
Administrator, the Administrators shall notify the Sub-Administrator/Accounting
Agent in writing. Upon written acceptance by the Sub-Administrator/Accounting
Agent, such Additional Funds shall be listed on an amended Schedule A and the
provisions of this Agreement (including those relating to the compensation and
expenses payable by the Administrators) shall apply with respect to each such
Additional Fund.
2. DELIVERY OF DOCUMENTS AND INFORMATION
2.1 DELIVERY OF DOCUMENTS. The Administrators will promptly deliver
to the Sub-Administrator/Accounting Agent copies of each of the following
documents and all future amendments and supplements, if any:
(a) upon the reasonable request of the Sub-Administrator/Accounting
Agent, the Articles of Incorporation, Declaration of Trust,
Trust Instrument, or other charter or similar document, as
applicable, for each Fund, as amended and in effect from time to
time;
(b) upon the reasonable request of the Sub-Administrator/Accounting
Agent, each Fund's by-laws, as amended and in effect from time
to time;
(c) the currently effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act") and the
Investment Company Act of 1940, as amended (the "1940 Act"), for
each Fund, the Prospectus(es) and Statement(s) of Additional
Information relating to each Fund or any other governing
document for such Fund (each such registration statement,
Prospectus, Statement of Additional Information and other
governing document, as amended and in effect from time to time,
together with such Fund's charter documents as described in
clause (a) of this Section 2.1, a "governing document") or, if
available, sufficient information so that the
Sub-Administrator/Accounting Agent can access such governing
document via XXXXX or another industry standard computer-based
information retrieval system to which the
Sub-Administrator/Accounting Agent has ready access;
(d) certified copies of the resolutions of the Board of Directors of
each Administrator (the "Board") authorizing such Administrator
to enter into this Agreement;
(e) duly executed Price Source Authorization(s) (as defined in
Section 6.2(a) hereof) with respect to each Fund;
(f) a duly executed certificate of an authorized officer of each
Administrator which certifies to the
Sub-Administrator/Accounting Agent the names and specimen
signatures of the persons authorized by such Administrator to
give Proper Instructions on behalf of such Administrator (such
Administrator's "Authorized Officers") and lists such
Administrator's authorized third-party agents; and
(g) such other certificates, documents or opinions which the
Sub-Administrator/Accounting Agent may, in its reasonable
discretion, deem necessary or appropriate in the proper
performance of its duties.
2.2 DELIVERY OF INFORMATION. The Administrators shall provide, or
shall cause a Third Party Agent (as defined in Section 3) to provide, timely
notice to the Sub-Administrator/Accounting Agent of certain data as a condition
to the Sub-Administrator/Accounting Agent's performance of the sub-accounting
services described on Schedule B-3 attached hereto. The data required to be
provided for the sub-administrative services set forth on Schedule B-1 and the
sub-accounting services set forth on Schedule B-3 is set forth on Schedule C
attached hereto, which schedule may be separately amended or supplemented by the
parties from time to time.
The Sub-Administrator/Accounting Agent is authorized and instructed to
rely upon the information it receives from any Administrator or any Third Party
Agent (as defined in Section 3). Subject to the standard
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of care set forth in the first sentence of Section 11, the
Sub-Administrator/Accounting Agent shall have no responsibility to review,
confirm or otherwise assume any duty with respect to the accuracy or
completeness of any data supplied to it by or on behalf of any Administrator
with respect to any Fund, including, without limitation, by any Third Party
Agent.
3. PROPER INSTRUCTIONS
Each Administrator shall communicate to the Sub-Administrator/Accounting
Agent by means of Proper Instructions. Proper Instructions shall mean (i) a
writing signed or initialed by one or more Authorized Officers or Third Party
Agents (as defined in this Section 3) or (ii) communication effected directly
between an Administrator or any of its authorized third-party agents (which such
agents shall have been identified to the Sub-Administrator/Accounting Agent in
writing pursuant to Section 2.1(f) or reflected as an Authorized Price Source
(as defined in Section 6.2(a)) on any Price Source Authorization) (as defined in
Section 6.2(a)) (each, a "Third Party Agent") and the
Sub-Administrator/Accounting Agent by electro-mechanical or electronic devices,
provided that the Administrator and the Sub-Administrator/Accounting Agent have
approved such procedures. The Sub-Administrator/Accounting Agent may rely upon
any Proper Instruction believed by it to be genuine and to have been properly
issued by or on behalf of the Administrator or any Third Party Agent. Oral
instructions shall be considered Proper Instructions if the
Sub-Administrator/Accounting Agent reasonably believes them to have been given
by an Authorized Officer or a Third Party Agent. Each Administrator shall cause
all oral instructions issued by it or on its behalf to be confirmed in
accordance with clauses (i) or (ii) above, as appropriate. Each Administrator
shall give timely Proper Instructions to the Sub-Administrator/Accounting Agent
in regard to matters affecting accounting practices of the Funds and the
Sub-Administrator/Accounting Agent's performance pursuant to this Agreement.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SUB-ADMINISTRATOR
The Sub-Administrator/Accounting Agent represents, warrants and
covenants to the Administrators that:
(a) it is a Massachusetts trust company, duly organized and existing
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 and to perform the
services contemplated by this Agreement;
(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,
to the Sub-Administrator/Accounting Agent's knowledge,
threatened which would materially impair the
Sub-Administrator/Accounting Agent's ability to perform its
duties and obligations under this Agreement;
(e) its entrance into and performance of this Agreement shall not
cause a breach or be in conflict with any other agreement or
obligation of the Sub-Administrator/Accounting Agent or any law
or regulation applicable to it, except to the extent that any
such breach or conflict is not reasonably likely to, either
individually or in the aggregate, have a material adverse effect
on the Sub-Administrator/Accounting Agent's ability to provide
the services to the Funds as provided in this Agreement; and
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(f) The Sub-Administrator/Accounting Agent carries and will continue
to carry (or self-insure) general liability, errors and
omissions, bond and other policies of insurance in an amount and
scope that are commercially reasonable in light of the nature
and scope of services to be provided under this Agreement and
the availability of such insurance in the market.
5. REPRESENTATIONS AND WARRANTIES OF THE ADMINISTRATORS
Each Administrator represents and warrants to the
Sub-Administrator/Accounting Agent that:
(a) it is a corporation, duly organized, existing and in good
standing under the laws of the State of its incorporation;
(b) it has the corporate power and authority under applicable laws,
by its charter and by-laws and under the administration
agreements to which it is a party with respect to any Fund 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) no legal or administrative proceedings have been instituted or,
to the Administrator's knowledge, threatened which would impair
the Administrator's ability to perform its duties and
obligations under this Agreement;
(e) its entrance into and performance of this Agreement will not
cause a breach or be in conflict with any other agreement or
obligation of the Administrator or any law or regulation
applicable to it, except to the extent that any such breach or
conflict is not reasonably likely to, either individually or in
the aggregate, have a material adverse effect on the
Administrator's ability to act as the administrator to the Funds
or perform its obligations hereunder; and
(f) with respect to the Affiliated Funds:
(1) each Affiliated Fund is an investment company properly
registered under the 1940 Act, a defined benefit plan, a
separate account or another type of investment vehicle
as indicated on Schedule A attached hereto;
(2) for each Affiliated Fund that is a registered management
investment company, a registration statement under the
1940 Act has been filed and will be effective and remain
effective during the term of this Agreement with respect
to such Affiliated Fund;
(3) as of the close of business on the date of this
Agreement, all necessary filings under the securities
laws of the states in which each Affiliated Fund offers
or sells its shares have been made;
(4) as of the close of business on the date of this
Agreement, each Affiliated Fund is authorized to issue
shares of common stock or beneficial interest, as
applicable; and
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(5) each Affiliated Fund is duly formed, organized or
incorporated, existing and in good standing under the
laws of the jurisdiction of its formation, organization
or incorporation.
6. SUB-ADMINISTRATION AND SUB-ACCOUNTING SERVICES
6.1 SUB-ADMINISTRATION SERVICES. The Sub-Administrator/Accounting
Agent shall provide the administrative services that are described on Schedule
B-1 attached hereto, in each case subject to the supervision and direction of
the Administrators and, as applicable, review and comment by each Fund's
auditors and legal counsel. Such administrative services shall be performed in
accordance with the policies and procedures described on Schedule B-2 attached
hereto, insofar as such policies and procedures relate to the administrative
services set forth on Schedule B-1 attached hereto. The
Sub-Administrator/Accounting Agent, such Fund's Administrator or such Fund's
Board of Directors/Trustees, as applicable, may propose changes to such policies
and procedures with respect to a Fund (including the establishment of new
policies and procedures) at any time; provided, however that no such change will
become effective as to the Sub-Administrator/Accounting Agent's responsibilities
without the consent of both the Sub-Administrator/Accounting Agent and the
applicable Administrator. The Sub-Administrator/Accounting Agent and the
Administrators (i) shall cooperate in good faith to change the foregoing
policies and procedures to reflect changes in applicable laws and to take
advantage of efficiencies and improvements in technology in accordance with
industry practice, (ii) shall otherwise consider in good faith any proposed
changes to the policies and procedures, and (iii) shall not unreasonably
withhold consent to reasonable changes requested by the other parties, provided
that the parties shall negotiate in good faith to reach an agreement regarding
compensation for any additional expenses or duties of the
Sub-Administrator/Accounting Agent in connection with any such proposed change.
When any new statement of policy and procedures has been consented to, it shall
be identified on Schedule B-2; and when any modification of any statement of
policies and procedures has been consented to, Schedule B-2 shall be amended
accordingly. The policies and procedures set forth on Schedule B-2, as amended
from time to time in accordance with this Section, shall hereinafter be referred
to as the "Procedures".
6.2 SUB-ACCOUNTING SERVICES.
(a) Books of Account. The Sub-Administrator/Accounting Agent shall
maintain the books of account of each Fund and shall perform the duties listed
on Schedule B-3 attached hereto for each Fund in the manner prescribed by each
Fund's governing document which has been supplied to the
Sub-Administrator/Accounting Agent and in accordance with the Procedures,
insofar as such policies and procedures relate to the sub-accounting services
set forth on Schedule B-3 attached hereto. The Administrators shall provide
timely prior notice to the Sub-Administrator/Accounting Agent of any
modification in the manner in which the calculations described in this Section
6.2 or listed on Schedule B-3 attached hereto are to be performed as prescribed
in any revision to any Fund's governing document and shall supply the
Sub-Administrator/Accounting Agent with certified copies of all amendments
and/or supplements to the governing documents in a timely manner. For purposes
of calculating the net asset value of a Fund, the Sub-Administrator/Accounting
Agent shall value the Fund's portfolio securities utilizing prices obtained from
sources designated by the applicable Administrator (collectively, the
"Authorized Price Sources") on a Price Source Authorization substantially in the
form attached hereto as Schedule E, as the same may be amended by such
Administrator and the Sub-Administrator/Accounting Agent from time to time, or
otherwise designated by means of Proper Instructions (the "Price Source
Authorization"). The Sub-Administrator/Accounting Agent shall not be responsible
for any revisions to calculation methods unless such revisions are communicated
in writing to the Sub-Administrator/Accounting Agent.
(b) Records. The Sub-Administrator/Accounting Agent shall create and
maintain all records relating to its activities and obligations under this
Agreement in such a manner as, with respect to each Fund,
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will meet the obligations of such Fund under, as applicable, the 1940 Act, the
Securities Exchange Act of 1934, the 1933 Act, the Employee Retirement Income
Security Act of 1974, the Commodity Exchange Act, and the regulations
promulgated under each of such Acts, including, without limitation, the
pronouncements of the Securities Exchange Commission on electronic recordkeeping
requirements. All such records shall be the property of the applicable Fund and
shall at all reasonable times (considering the particular circumstances) be
available to duly authorized officers, employees or agents of the Administrator,
the applicable Fund and employees and agents of applicable regulatory
authorities. Subject to Section 11 hereof, the Sub-Administrator/Accounting
Agent shall preserve for the period required by law the records required to be
maintained hereunder. All such similar records that were maintained for the
Funds by the Administrators for periods prior to the date of this Agreement
shall at all reasonable times (considering the particular circumstances) be
available to duly authorized officers, employees or agents of the
Sub-Administrator/Accounting Agent and employees and agents of applicable
regulatory authorities.
6.3 FACILITIES AND PERSONNEL. The Sub-Administrator/Accounting Agent
shall provide the office facilities and personnel required by it to perform the
services contemplated by this Agreement.
6.4. TRANSMISSION OF DATA. (a) The Administrators hereby instruct and
direct, and acknowledge that they may from time to time further instruct and
direct, the Sub-Administrator/Accounting Agent to disseminate certain
confidential, sensitive (as to financial or timing or otherwise) or other
information, whether generated by the Sub-Administrator/Accounting Agent in its
provision of services hereunder or otherwise (the "Data"), to any Administrator
or any of its affiliates, agents of an Administrator, contract counterparties of
an Administrator or other persons or entities, via the (public) internet
(including so-called "e-mail" or electronic mail systems), facsimile, or other
electronic or electro-mechanical method chosen by the Administrators, and
pursuant to such reasonable operational procedures as the Administrators and the
Sub-Administrator/Accounting Agent may agree upon from time to time (the
"Transmission(s)").
(b) In connection with all such instructions described in clause (a)
above, the Administrators hereby accept and assume all risk associated with the
choice of delivery methods and risks associated with the transmission of
encrypted or unencrypted information (i) by way of a non-secure method (e.g.,
interception, manipulation or alteration, lack of confidentiality) and (ii) due
to the Sub-Administrator/Accounting Agent's inability to control the quality,
completeness and accuracy of any Transmission Report due to possible Data
corruption or transmission interference and/or error.
(c) In furtherance of all such instructions described in clause (a)
above, the Administrators hereby acknowledge and agree that (i) such may from
time to time include particular instructions to deliver Data to e-mail,
facsimile or other distribution lists and in such event(s), the Administrators
shall assume the responsibility for (A) creating and maintaining the master(s)
of any such distribution lists and (B) communicating such information to the
Sub-Administrator/Accounting Agent as the Sub-Administrator/Accounting Agent may
reasonably require in order to comply, in accordance with the standard of care
set forth in Section 11 below, with any Transmission instruction and (ii) they
will notify the Sub-Administrator/Accounting Agent as soon as possible if they
become aware of any Transmission that has not been received as provided in the
procedures referred to in clause (a) above.
(d) The Administrators hereby acknowledge and agree that no act or
omission of the Sub-Administrator/Accounting Agent including, without
limitation, its execution of this Agreement or acceptance of any instruction
described in clause (a) above, shall constitute either an agreement to be bound
by, or an acceptance of any liability or obligation with respect to, any
contract to which the Sub-Administrator/Accounting Agent is not a party
including, without limitation, any agreement or arrangement any Administrator or
Fund may have with any person or entity including, without limitation, any
recipient of Data via a Transmission. Nothing in this clause (d) shall, however,
in any way diminish the Sub-Administrator/Accounting
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Agent's obligations under this Agreement.
7. FEES, EXPENSES AND EXPENSE REIMBURSEMENT; CHANGE IN LEVEL OF SERVICES
7.1 FEES, EXPENSES AND EXPENSE REIMBURSEMENTS. The Administrators
hereby agree to pay the Sub-Administrator/Accounting Agent such compensation for
the Sub-Administrator/Accounting Agent's services provided pursuant to this
Agreement as is set forth on the fee schedule attached as Schedule D to this
Agreement (as such Fee Schedule may be amended from time to time by the
agreement of the Sub-Administrator/Accounting Agent and the Administrators, the
"Fee Schedule"). The fees are billed monthly and shall be due and payable upon
receipt of the invoice. Upon the termination of this Agreement with respect to
any Fund before the end of any month, the fee payable with respect to such Fund
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 promptly upon the date of termination of this Agreement for such Fund.
In addition, the Administrators hereby agree to reimburse the
Sub-Administrator/Accounting Agent for its reasonable out-of-pocket costs and
for its expenses incurred in connection with this Agreement as set forth on
Schedule D attached hereto (as such Fee Schedule may be amended from time to
time by the agreement of the Sub-Administrator/Accounting Agent and the
Administrators).
The Administrators agree to reimburse the Sub-Administrator/Accounting
Agent for any other expenses not contemplated by this Agreement as mutually
agreed upon in writing by the Administrators and the
Sub-Administrator/Accounting Agent from time to time.
7.2 CHANGE IN LEVEL OF SERVICES. (a) On the first date after the
date hereof that the aggregate number of Funds listed on Schedule A is 15% or
more higher or lower than the number of Funds set forth on Schedule A on the
date of this Agreement, the Administrators and the Sub-Administrator/Accounting
Agent shall negotiate in good faith to amend Schedule D attached hereto with the
intention of preserving the economic benefit to each party contemplated by this
Agreement. In addition, if on any date after the date that the Schedule D
amended pursuant to this Section 7.2(a) becomes effective, the aggregate number
of Funds listed on Schedule A is again 15% or more higher or lower than the
number of Funds set forth on Schedule A on the date that such amended Schedule D
became effective, the Administrators and the Sub-Administrator/Accounting Agent
shall again negotiate in good faith to amend the Schedule D then in effect with
the intention of preserving the economic benefit to each party contemplated by
this Agreement. For purposes of the foregoing calculations, (i) any Fund that is
merged or reorganized into another Fund for which the
Sub-Administrator/Accounting Agent provides services hereunder shall not be
considered removed from Schedule A, (ii) each Fund that is not an "Advised Fund"
(as defined below) shall not at any time count toward the calculation of the
number of Funds on or not on Schedule A, and (iii) each Fund that is a
Terminated Fund (as defined in Section 15(b)) shall not count toward the
calculation of the number of Funds on or not on Schedule A. For purposes of this
Section 7.2(a), those Funds listed in clauses (ii) and (iii) above shall be
removed from the numerator (Funds added or removed from Schedule A) and the
denominator (Funds listed on Schedule A) for purposes of the calculation to
determine if the 15% has been met.
(b) On the first date after the date hereof that the aggregate
amount of assets of the Funds listed on Schedule A for which an Administrator or
any affiliate of an Administrator has discretionary investment authority over
all or a portion of the assets of such Fund (each, an "Advised Fund") is 15% or
more higher or lower than the aggregate assets of the Advised Funds on the date
of this Agreement and such change in the level of assets is caused by the
redirection of assets into or out of any such Advised Funds by any Administrator
or any affiliate of an Administrator, the Administrators and the
Sub-Administrator/Accounting Agent shall negotiate in good faith to amend
Schedule D attached hereto with the intention of preserving the economic benefit
to each party contemplated by this Agreement. In
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addition, if on any date after the date that (i) the Schedule D amended pursuant
to this Section 7.2(b) becomes effective, or (ii) the parties agree not to amend
Schedule D or fail to agree to amend Schedule D despite the prior 15% change in
the level of assets described above and the aggregate amount of assets of the
Advised Funds is 15% or more higher or lower than the aggregate amount of assets
of the Advised Funds on the date that such amended Schedule D became effective
or the parties agreed not to amend Schedule D or failed to agree to amend
Schedule D, and such change in the level of assets is caused by the redirection
of assets into or out of any such Advised Funds by any Administrator or any
affiliate of an Administrator, the Administrators and the
Sub-Administrator/Accounting Agent shall again negotiate in good faith to amend
the Schedule D then with the intention of preserving the economic benefit to
each party contemplated by this Agreement. For purposes of this Section 7.2(b),
(i) an Administrator or any affiliate thereof shall cause the redirection of
assets into or out of any Advised Fund if such Administrator or affiliate
thereof suggests, promotes, proposes or encourages such redirection and (ii)
assets redirected into or out of the Funds by an Administrator from or to,
respectively, another account at the Sub-Administrator/Accounting Agent after
the date hereof shall not be counted toward the calculation described in this
Section 7.2(b).
(c) If the parties have negotiated in good faith for thirty (30)
days or more pursuant to clause (a) or clause (b) of this Section 7.2 and have
not agreed on an amended Schedule D, any party may commence arbitration to
resolve such impasse by giving written notice to the other parties hereto. Any
such arbitration shall take place in Boston, Massachusetts and shall be before a
panel of three arbitrators (with one designated by the Administrators and one
designated by the Sub-Administrator/Accounting Agent, and the third arbitrator
designated by the first two arbitrators) pursuant to the rules of the American
Arbitration Association. Any arbitrator designated by the Administrators or the
Sub-Administrator/Accounting Agent must be an "Independent Person". An
"Independent Person" shall be an individual who is not and has not been (i) a
director, officer, employee, agent or shareholder of any party hereto, (ii) a
consultant to any party hereto, (iii) a person with a direct or indirect
financial interest in any contract with either party hereto, (iv) a director,
officer or key employee of a company at a time when such company was party to a
contract with either party hereto, or (v) a relative of any person referred to
in clauses (i), (ii), (iii) or (iv) above. As used in the immediately preceding
sentence, the term "any party hereto" shall be deemed to include any affiliates
of the parties hereto. Any amended Schedule D as determined by the arbitrators
shall be conclusive and binding upon the parties hereto. Each party hereto shall
pay its own expenses of arbitration and the expenses of the arbitrators shall be
equally shared between the Administrators and the Sub-Administrator/Accounting
Agent.
8. APPOINTMENT OF AGENTS
The Sub-Administrator/Accounting Agent is authorized to and may employ
or associate with such agents as the Sub-Administrator/Accounting Agent may deem
desirable to assist it in performing its duties and exercising its rights under
this Agreement; provided that (i) with respect to agents that are not affiliates
of the Sub-Administrator/Accounting Agent, the Sub-Administrator/Accounting
Agent shall provide at least ninety (90) days prior written notice to the
Administrators of its intention to employ or associate with such agents, and
(ii) the compensation of such agents shall be paid by the
Sub-Administrator/Accounting Agent and the Sub-Administrator/Accounting Agent
shall be as fully responsible to the Administrators for the acts and omissions
of any such agents as it is for its own acts and omissions. Notwithstanding the
previous sentence, the Sub-Administrator/Accounting Agent shall be under no
obligation to provide the advance notice required under clause (i) of the
preceding sentence in the event that the Sub-Administrator/Accounting Agent
reasonably determines that such advance notice is not possible because of an
emergency or other circumstances beyond the Sub-Administrator/Accounting Agent's
control.
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9. BENCHMARKS AND PERFORMANCE GOALS
9.1 SERVICE BENCHMARKS. The Administrators and the
Sub-Administrator/Accounting Agent may from time to time enter into agreements
regarding service benchmarks.
9.2 SERVICE LEVEL DOCUMENTS AND PERFORMANCE GOALS. The
Administrators and the Sub-Administrator/Accounting Agent also may from time to
time agree on the manner in which they expect to deliver and receive the
services contemplated by this Agreement. The parties hereto agree that such
document(s) (hereinafter referred to as "Service Level Document(s)") may reflect
performance goals and any failure to perform in accordance with the provisions
thereof shall not be considered a breach of this Agreement that gives rise to
contractual or other remedies. It is the intention of the parties hereto that
the sole remedy for failure to perform in accordance with the provisions of a
Service Level Document, or any dispute relating to performance goals set forth
in a Service Level Document, will be a meeting of the parties hereto to resolve
the failure pursuant to the consultation procedure described below.
(a) If a party hereto is consistently unable to meet the provisions
of a Service Level Document, or in the event that a dispute arises relating to
the performance goals set forth in a Service Level Document, either party to
this Agreement shall address any concerns it may have by requiring a meeting
with the other party.
(b) The purpose of a consultation procedure is to endeavor to
resolve a consistent failure to meet the provisions of a Service Level Document.
If a meeting occurs under this Section 9.2, both parties must negotiate in good
faith to endeavor to:
(i) implement any changes that will enable the Service Level
Document provisions to be more regularly met;
(ii) agree to alternative Service Level Document provisions that meet
the parties' respective business requirements; or
(iii) otherwise find a solution such that within 30 days after the
meeting, the inability to meet the Service Level Document
provisions may be less likely to occur in the future.
10. INSTRUCTIONS AND ADVICE
At any time, the Sub-Administrator/Accounting Agent may apply to any
Authorized Officer of an Administrator for instructions and may, with the
approval (which shall not be unreasonably withheld) of any Authorized Officer of
an Administrator (which must be prior written approval unless the
Sub-Administrator/Accounting Agent reasonably determines that an emergency
exists or that the cost of obtaining such requested instructions is not
material), consult with outside counsel for the Funds or such Administrator or
the independent auditors for the Funds (in each case at the expense of such
Administrator if such expense is approved by such Administrator in writing), or
other individuals designated in writing by such Administrator, for instructions
with respect to any matter arising in connection with the services to be
performed by the Sub-Administrator/Accounting Agent under this Agreement. The
Sub-Administrator/Accounting Agent shall not be held to have notice of any
change of authority of any officer or individual until receipt of written notice
thereof from the applicable Administrator. Nothing in this Section shall be
construed as imposing upon the Sub-Administrator/Accounting Agent any obligation
to seek such instructions.
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11. LIMITATION OF LIABILITY AND INDEMNIFICATION
The Sub-Administrator/Accounting Agent shall be held to the exercise of
reasonable care in carrying out the provisions of this Agreement, but shall be
kept indemnified by the Administrators for, and shall be without liability in
respect of, any action taken or omitted by it (including, without limitation,
acting in accordance with any Proper Instructions) in good faith without
negligence or willful misconduct. The Sub-Administrator/Accounting Agent shall
be responsible for the performance of only such duties as are set forth in this
Agreement, and, except as otherwise provided under Section 8 hereof shall have
no responsibility for the actions or activities of any other party, including
other service providers. The Sub-Administrator/Accounting Agent shall have no
liability for any error of judgment or mistake of law or for any loss or damage
resulting from the performance or nonperformance of its duties hereunder in good
faith unless (i) solely caused by or (ii) resulting from the negligence or
willful misconduct of the Sub-Administrator/Accounting Agent, its officers,
employees or agents. Subject to the standard of care set forth in this Section
11, the Sub-Administrator/Accounting Agent shall not be liable, and shall be
indemnified by the Administrators, for any action taken or omitted by it in good
faith in reliance upon any instructions or advice received pursuant to Section
10 or upon any paper or document reasonably believed by it to be genuine and to
have been signed by an Authorized Officer of any Administrator or Third Party
Agent.
No party to this Agreement shall be liable for any special, indirect,
incidental, or consequential damages of any kind whatsoever (including, without
limitation, attorneys' fees) under any or in any way due to the services
provided hereunder or the performance of or failure to perform any provision of
this Agreement or for any such damages arising out of any act or failure to act
hereunder.
Any Administrator, Fund or Third Party Agent (including any Authorized
Price Source) from which the Sub-Administrator/Accounting Agent shall receive or
obtain certain records, reports and other data utilized or included in the
accounting services provided hereunder is solely responsible for the content of
such information including, without limitation, the accuracy thereof and each
Administrator agrees to make no claim against the Sub-Administrator/Accounting
Agent arising out of the content of such third-party data including, but not
limited to, the accuracy thereof. Subject to the standard of care set forth in
the first sentence of this Section 11, the Sub-Administrator/Accounting Agent
shall have no responsibility to review, confirm or otherwise assume any duty
with respect to the accuracy or completeness of any such information and shall
be without liability for any loss or damage suffered as a result of the
Sub-Administrator/Accounting Agent's reasonable reliance on and utilization of
such information, except as otherwise required by the Price Source Authorization
with respect to the use of data obtained from Authorized Price Sources. The
Sub-Administrator/Accounting Agent shall have no responsibility and shall be
without liability for any loss or damage caused by the failure of any
Administrator, any Fund or any Third Party Agent to provide it with the
information required by Section 2.2 hereof. Further, and without in any way
limiting the generality of the foregoing, the Sub-Administrator/Accounting Agent
shall have no liability in respect of any loss, damage or expense suffered by
any Administrator or any Fund, insofar as such loss, damage or expense arises
from the performance of the Sub-Administrator/Accounting Agent's duties
hereunder by reason of the Sub-Administrator/Accounting Agent's reliance upon
records that were maintained for any Administrator or any Fund by any entity
other than the Sub-Administrator/Accounting Agent prior to the Administrators'
appointment of the Sub-Administrator/Accounting Agent pursuant to this
Agreement.
Without in any way limiting the generality of the foregoing, the
Sub-Administrator/Accounting Agent shall in no event be responsible or liable
for any failure or delay in performance of its obligations under this Agreement
arising out of, or caused, or any loss or damages arising from or caused,
directly or indirectly, by circumstances beyond its control, including without
limitation, work stoppage, power or other mechanical failure, computer virus,
terrorism, natural disaster, governmental action or communication disruption or
other impossibility of performance. In connection with the occurrence of any
such event
10
which actually causes loss, damage or expense to any Administrator with respect
to any Fund, the Sub-Administrator/Accounting Agent shall use commercially
reasonable efforts under the circumstances to mitigate the negative effect of
such event on the Administrator with respect to such Fund. Notwithstanding the
foregoing, the Sub-Administrator/Accounting Agent shall enter into and shall
maintain in effect with appropriate parties one or more agreements (or make
other arrangements) making reasonable provision for (i) back-up of the computer
files and data with respect to the Fund, (ii) emergency use of electronic data
processing equipment to provide services under this Agreement and (iii) such
other aspects of its administration, accounting and recordkeeping business as
the Sub-Administrator/Accounting Agent may, in the exercise of its own
discretion, deem appropriate.
In any event, the Sub-Administrator/Accounting Agent's cumulative
liability for each calendar year in which (i) errors of judgment, (ii) mistakes
of law, or (iii) loss or damage resulting from the performance or
non-performance of its duties have occurred (or, in the case of losses or
damages, have accrued) with respect to any Fund under this Agreement
(irrespective of when such losses or damages actually may be paid or suffered by
the Administrators), and, in each case only with respect to the provision of the
sub-administration services described in Section 6.1 hereof, and to the extent
caused by or resulting from the negligence or willful misconduct of the
Sub-Administrator/Accounting Agent, its officers, employees or agents, shall be
limited to such amount as the parties may agree upon in writing.
The Administrators shall indemnify and hold the
Sub-Administrator/Accounting Agent free and harmless from all claims, demands,
actions suits, losses, costs, damages and expenses, including reasonable fees
and expenses for counsel, suffered or incurred by the
Sub-Administrator/Accounting Agent caused by or resulting from the
Sub-Administrator/Accounting Agent's acceptance of this Agreement, any act or
omission of an Administrator, a Fund or a third party whose services the
Sub-Administrator/Accounting Agent must rely upon in performing the services
hereunder, any action or omission by the Sub-Administrator/Accounting Agent in
the performance of its duties hereunder, or as a result of the
Sub-Administrator/Accounting Agent's acting upon any instructions (including
Proper Instructions) reasonably believed by it to have been duly authorized by
an Administrator, provided that this indemnification shall not apply to actions
or omissions of the Sub-Administrator/Accounting Agent, its officers or
employees in cases of its or their own negligence or willful misconduct. All
indemnification obligations of the Administrators set forth in this Agreement or
provided pursuant to this Agreement shall survive the termination of this
Agreement.
12. CONFIDENTIALITY
(a) Each of the Administrators, on the one hand, and the
Sub-Administrator/Accounting Agent, on the other hand, shall, and shall cause
its affiliates to, maintain in confidence all Confidential Information (as
defined below) of the Administrators and the Sub-Administrator/Accounting Agent,
respectively, and shall not disclose such Confidential Information to any other
person or entity except (i) to its (or any of its affiliates') employees,
officers, agents, independent contractors, or consultants ("Personnel") as is
necessary in connection with the performance of its activities as contemplated
by this Agreement and (ii) to a Fund to the extent that such disclosure is a
necessary part of any service provided hereunder. In maintaining the
confidentiality of the Confidential Information of any other party to this
Agreement, each of the Administrators, on the one hand, and the
Sub-Administrator/Accounting Agent, on the other hand, shall exercise the same
degree of care that such person shall exercise with respect to its own
Confidential Information, including the use of customary data protection
procedures, and in no event less than a reasonable degree of care.
(b) The obligation of confidentiality contained in this Agreement
shall not apply to any Transmissions or to the extent that (i) any Administrator
or the Sub-Administrator/Accounting Agent (or, in each case, any affiliate
thereof) (the "Disclosing Party") is required to disclose information pursuant
to
11
the terms of a governmental order, under applicable law or pursuant to a request
by a governmental authority having jurisdiction over such person, (ii) the
information was at the time of such disclosure by the Disclosing Party generally
available to the public other than as a result of a disclosure by the Disclosing
Party or any of its affiliates, or (iii) the disclosed information was received
by the Disclosing Party on an unrestricted basis from a source unrelated to any
party to this Agreement not under a duty of confidentiality to the other party.
In the event that a party to this Agreement or any of its affiliates is
requested by or pursuant to, or required by, law, a governmental order or a
governmental authority having jurisdiction over such person to disclose any
Confidential Information of any other party to this Agreement, such party will,
to the extent not prohibited by law, such governmental order or such
governmental authority, provide the other party (the "Interested Party") with
prompt notice of such request or requirement in order to enable the Interested
Party, at its own expense, to seek an appropriate protective order or other
remedy (and, if the Interested Party seeks such order, the potential Disclosing
Party will provide such cooperation as the Interested Party shall reasonably
request) to resist or narrow the scope of such request or legal process, or
waive compliance, in whole or in part, with the terms of this clause (b). In the
event that such protective order or other remedy is not obtained or the
Interested Party waives such compliance, only that portion of the Confidential
Information may be disclosed as the Disclosing Party, as advised by counsel, is
legally required to disclose and the Disclosing Party will use its best efforts
to ensure that all such Confidential Information so disclosed will be accorded
confidential treatment.
(c) Each party to this Agreement acknowledges and confirms that the
Confidential Information of each of the other parties to this Agreement
constitutes proprietary information and trade secrets valuable to such other
party, and that the unauthorized use, loss or outside disclosure of such
Confidential Information shall cause irreparable injury to such other party.
Each party to this Agreement shall notify the other parties hereto immediately
upon discovery of any unauthorized use or disclosure of Confidential
Information, and shall cooperate with each other party to this Agreement in
every reasonable way to help regain possession of such Confidential Information
and to prevent its further unauthorized use. Each party to this Agreement
acknowledges that monetary damages may not be a sufficient remedy for
unauthorized disclosure of Confidential Information of another party to this
Agreement and that such other party shall be entitled, without waiving other
rights or remedies, to seek such injunctive or equitable relief as may be deemed
proper by a court of competent jurisdiction. Each party to this Agreement shall
be entitled to recover reasonable attorney's fees for any action arising out of
or relating to a disclosure of Confidential Information of such party by any
other party to this Agreement.
(d) Upon the termination of this Agreement, each party to this
Agreement shall return to the each other party hereto or destroy all
Confidential Information of such other party in its possession or control,
including any copies or reproductions thereof. Notwithstanding the foregoing,
each party to this Agreement may retain one copy of the Confidential Information
of each other party for its records but only to the extent required by any
applicable law or by a governmental order or a governmental authority of
competent jurisdiction, provided that such retained Confidential Information
shall be subject to the confidentiality terms of this Agreement until it has
been delivered to the relevant party hereto or destroyed pursuant to this
Agreement.
(e) The Sub-Administrator/Accounting Agent shall not (i) use any
Administrator Content (as defined below) other than in connection with provision
of services hereunder, (ii) disclose, sell, assign, lease or otherwise provide
any Administrator Content to third parties, or (iii) commercially exploit any
Administrator Content on its own behalf or on behalf of any third party.
(f) Subject to statutory disclosure obligations, each party to this
Agreement undertakes to comply with, and to cause its respective Personnel to
comply with, the provisions of any applicable law regarding (i) the use of the
personal data of (A) each other party hereto, (B) its and each of its
affiliate's
12
clients (including the Funds), (C) the persons or entities who become its or any
of its affiliate's clients, and (D) any of its or any of its affiliate's
Personnel and (ii) the protection of the confidentiality thereof.
(g) Notwithstanding the foregoing, the Sub-Administrator/Accounting
Agent may aggregate Fund data with similar data of other customers of the
Sub-Administrator/Accounting Agent ("Aggregated Data") and may use Aggregated
Data for purposes of constructing statistical models so long as such Aggregated
Data represents such a sufficiently large sample that no Fund data can be
identified either directly or by inference or implication. The
Sub-Administrator/Accounting Agent hereby agrees that it shall not sell any such
Aggregated Data.
(h) The following terms used in this Section 12 shall have the
following meanings:
"Administrator Content" means collectively, all (i) logos,
trademarks, images, text, works of authorship, and other content
provided to the Sub-Administrator/Accounting Agent by any Administrator
pursuant to this Agreement, (ii) Administrator Data, and (iii)
intellectual property rights in the foregoing.
"Administrator Data" means any data or information provided by
or on behalf of any Administrator to the Sub-Administrator/Accounting
Agent pursuant to this Agreement.
"Confidential Information" of a party to this Agreement means
all information relating to this Agreement (other than the existence of
this Agreement), or received by any other party to this Agreement or any
of its affiliates in the course of performing under this Agreement
(including information relating to the Funds, the Funds' shareholders
and shareholder accounts), which is or should reasonably be understood
to be confidential or proprietary information of, or concerning, such
party or its affiliates, including trade secrets, know-how, commercial,
financial, and technical information, customer or client lists,
programs, procedures, data, documents, computer information and
databases, business plans, budget forecasts, business arrangements,
information regarding specific transactions, financial information and
estimates, works of authorship, and long-term plans and goals, the
intellectual property rights of any party to any of the foregoing, and
any information relating to the services provided hereunder.
Confidential Information of any party includes all of such party's work
product and all of the deliverables developed by such party specifically
for another party in connection with the services provided hereunder,
including software, reports, data, information, works of authorship and
inventions, and all documentation related thereto (excluding software
owned by any third party and commercial off-the-shelf software).
13. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS; RECORDS AND REPORTS
Except as described in the next paragraph with respect to books and
records, each Administrator assumes full responsibility for each Fund's
compliance with all securities, tax, commodities and other laws, rules and
regulations applicable to the Fund.
In compliance with the requirements of Rule 31a-3 under the 1940 Act to
the extent that such Rule is applicable to any Fund, the
Sub-Administrator/Accounting Agent agrees that all records which it maintains
for such Fund shall at all times remain the property of such Fund and shall be
promptly surrendered upon the termination of the Agreement or otherwise on
written request of the applicable Administrator or such Fund. The
Sub-Administrator/Accounting Agent further agrees that all records which it
maintains for any Fund pursuant to the 1940 Act, the Securities Exchange Act of
1934, the 1933 Act, the Employee Retirement Income Security Act of 1974, the
Commodity Exchange Act, and the regulations promulgated under each such Act, as
applicable, will be preserved for the periods prescribed by thereby
13
unless any such records are earlier surrendered as provided above. Records shall
be surrendered in usable machine-readable form.
The Sub-Administrator/Accounting Agent shall engage its independent
outside accounting firm to prepare periodic (but at least annual) reports
(collectively, "Type II SAS 70 Reports") in compliance with the provisions of
the Statements on Auditing Standards No. 70 ("SAS 70"), or such other similar
reports as may be required under the Statements on Auditing Standards,
evaluating the polices, procedures, and internal controls of the
Sub-Administrator/Accounting Agent as they relate to the services performed by
the Sub-Administrator/Accounting Agent hereunder. The
Sub-Administrator/Accounting Agent shall promptly provide the Administrators
with true and correct copies of any Type II SAS 70 Reports prepared pursuant to
this Section 13. To the extent compliance with SAS 70 requires, or the parties
hereto reasonably mutually agree on, the joint preparation of the Type II SAS 70
Reports evaluating the services performed by the Sub-Administrator/Accounting
Agent and the Administrators for the Funds, the Administrators shall, and shall
cause their independent outside accounting firm to, cooperate in good faith with
the Sub-Administrator/Accounting Agent and its independent outside accounting
firm to jointly prepare such Type II SAS 70 Reports.
The Sub-Administrator/Accounting Agent will permit the Funds, the
Administrators or their external auditors to make periodic on-site inspections
of the Sub-Administrator/Accounting Agent's operations at reasonable times and
upon reasonable notice during business hours as the Administrators deem
appropriate. The Sub-Administrator/Accounting Agent shall allow the Funds,
Administrators or their external auditors to access any reports made available
to the public. The provisions of this Section 13 shall survive any termination
of this Agreement for a period of two (2) years.
14. SERVICES NOT EXCLUSIVE
The services of the Sub-Administrator/Accounting Agent to each Fund are
not to be deemed exclusive, and the Sub-Administrator/Accounting Agent shall be
free to render similar services to others. The Sub-Administrator/Accounting
Agent shall be deemed to be an independent contractor and, unless otherwise
expressly provided herein or authorized by a Fund from time to time, shall have
no authority to act or represent the Administrator or the Fund in any way or
otherwise be deemed an agent of the Administrator or the Fund.
15. TERM, TERMINATION AND AMENDMENT
(a) This Agreement shall become effective on the date of its
execution and shall remain in full force and effect until March 31, 2008 (the
"Initial Term") and shall automatically continue in full force and effect after
the Initial Term on an annual basis thereafter unless the Administrators
terminate or the Sub-Administrator/Accounting Agent terminates this Agreement by
written notice to the Administrators or the Sub-Administrator/Accounting Agent,
as applicable, at least three hundred and sixty-five (365) days prior to the
expiration of the Initial Term or any annual term thereafter. If this Agreement
is terminated by either party as provided in the immediately preceding sentence,
the Sub-Administrator/Accounting Agent shall, at the request of the
Administrators, continue to provide services hereunder for a period (the
"Extension Period") of one hundred and eighty (180) days after the date of
termination under the immediately preceding sentence and the compensation
payable to the Sub-Administrator/Accounting Agent for such Extension Period
shall be (i) if this Agreement is terminated under the first sentence of this
Section 15(a) by the Sub-Administrator/Accounting Agent, the compensation
described on Schedule D attached hereto as in effect on the date of the
commencement of the Extension Period, or (ii) if this Agreement is terminated
under the first sentence of this Section 15(a) by the Administrators, one
hundred and twenty-five percent (125%) of the compensation described on
14
Schedule D attached hereto as in effect on the date of the commencement of the
Extension Period for the duration of such Extension Period.
(b) Notwithstanding the provisions of clause (a) herein, and subject
to the provisions of clause (c) herein, within thirty (30) days of each
Constructive Termination Date (as defined herein) the Administrators shall pay
to the Sub-Administrator/Accounting Agent a fee (a "Termination Fee") which is
equal to 25% of the aggregate amount of fees which would have been payable to
the Sub-Administrator/Accounting Agent under this Agreement with respect to the
Terminated Funds, calculated in accordance with the Schedule D in effect on such
Constructive Termination Date (as defined herein) but based on, in the case of
the calculation of the sub-administration fees, the average assets of the Fund
during the sixty (60) day period preceding its termination as a Fund hereunder,
and for the greater of (A) three (3) years from such Constructive Termination
Date or (B) the remainder of the Initial Term of this Agreement.
For purposes of this Section 15, (i) a "Terminated Fund" is a Fund (A) to which
an Administrator no longer furnishes administrative and/or fund accounting
services as a result of the termination, expiration or non-renewal of the
applicable administration, advisory or other service agreement by and between
such Fund and the Administrator (an "Administration Agreement"), and the
provision of services by the Sub-Administrator/Accounting Agent to any
Administrator (or its affiliates) under this Agreement with respect to each such
Fund is then eliminated or terminated; (B) that has not entered into a State
Street Agreement as set forth in clause (c) below; and (C) with respect to which
a Termination Fee has not been paid, and (ii) a "Constructive Termination Date"
will occur (A) when the aggregate number of Terminated Funds since the date
hereof equals 15% or more of the sum of (y) the aggregate number of Funds listed
on Schedule A on the date hereof plus (z) the number of Funds added to Schedule
A from time to time prior to such Constructive Termination Date and (B)
thereafter, each time when the aggregate number of Terminated Funds since the
last Constructive Termination Date equals 15% or more of the sum of (y) the
aggregate number of Funds listed on Schedule A on the most recent Constructive
Termination Date plus (z) the number of Funds added to Schedule A from time to
time prior to the next Constructive Termination Date.
(c) If, prior to the expiration of the Initial Term and on or before
the thirtieth (30th) day after the most recent Constructive Termination Date,
the Sub-Administrator/Accounting Agent is directly appointed by any Terminated
Fund to perform such administrative and accounting services directly to such
Fund pursuant to an agreement with substantially similar terms as this Agreement
(the "State Street Agreement"), a term equal to or greater than the remaining
portion of the Initial Term of this Agreement, and with a Fee Schedule
comparable to the Fee Schedule currently in effect under this Agreement and
attached as Schedule D with respect to the sub-administration services listed on
Schedule B-1 attached hereto and the sub-accounting services listed on Schedule
B-3 attached hereto, then the Administrators shall not be required to include
such Terminated Fund in the calculation of the Termination Fee then payable.
Notwithstanding the provisions of subsection (c), however, in the event that the
State Street Agreement is terminated by any Fund for any reason other than cause
(such as the negligence or willful misconduct of the
Sub-Administrator/Accounting Agent, its officers or employees) prior to March
31, 2008 (the expiration of the Initial Term under this Agreement), the
Administrators shall pay to the Sub-Administrator/Accounting Agent, within
thirty (30) days of such termination, a Termination Fee which is equal to 25% of
the fees that would have been payable to the Sub-Administrator/Accounting Agent
under this Agreement with respect to the relevant Terminated Fund, calculated in
accordance with the Schedule D as in effect on the last day that such Terminated
Fund was listed on Schedule A to this Agreement (but based on, in the case of
the calculation of the sub-administration fees, the average assets of the fund
15
during the sixty (60) day period prior to the termination), and for the
remainder of the Initial Term of this Agreement.
The amount of the termination fee, if any, payable and actually paid by such
Terminated Fund to the Sub-Administrator/Accounting Agent in connection with the
termination of, and as described in, the State Street Agreement shall reduce any
fee payable by the Administrators under this subsection (c).
(d) The portion of any Termination Fee payable with respect to a
Terminated Fund under subsection (b) and the Termination Fee payable with
respect to a Terminated Fund under subsection (c) hereof shall be reduced by 40%
in the event that the Terminated Fund is or becomes, on or before the date that
such Termination Fee is due, a part of any fund family not listed on Schedule A
attached hereto, and for which the Sub-Administrator/Accounting Agent provides
sub-administrative and sub-accounting services.
(e) Termination of this Agreement with respect to a Fund shall in no
way affect the continued validity of this Agreement with respect to any other
Fund. Upon termination of this Agreement with respect to a Fund, and subject to
the provisions of Section 7.2, Schedule A shall be amended to reflect the Funds
subject to the terms of this Agreement.
(f) Notwithstanding clause (d), the Administrators may terminate
this Agreement (i) upon thirty (30) days' written notice to the
Sub-Administrator/Accounting Agent that the Sub-Administrator/Accounting Agent
is in breach of this Agreement, and the Sub-Administrator/Accounting Agent
within such period fails to cure such breach, (ii) upon intervention of
bankruptcy or receivership with respect to the Sub-Administrator/Accounting
Agent, or (iii) upon the execution by the Sub-Administrator/Accounting Agent of
any assignment for the benefit of creditors. Any such termination shall be in
addition to, and not in lieu of, any rights the Administrators may have at law
or in equity against the Sub-Administrator/Accounting Agent.
(g) Upon termination of this Agreement, the Administrators shall pay
to the Sub-Administrator/Accounting Agent such compensation and any reimbursable
expenses as may be due under the terms hereof as of the date of such
termination.
(h) If a successor sub-administrator/accounting agent or
administrator or accounting agent for any Fund shall be appointed by any
Administrator or by a Fund, respectively, the Sub-Administrator/Accounting Agent
shall upon termination of this Agreement with respect to that Fund use
commercially reasonable efforts to transfer the records of such Fund to the
designated successor sub-administrator/accounting agent or administrator or
accounting agent for that Fund, as appropriate, to provide reasonable assistance
to the applicable Administrator and that Fund's designated successor
sub-administrator/accounting agent or administrator or accounting agent, and to
provide other information relating to its services provided hereunder (subject,
in each case, to the recompense of the Sub-Administrator/Accounting Agent for
such assistance at its standard rates and fees in effect at the time of such
transfer). If no such successor sub-administrator/accounting agent or
administrator or accounting agent shall be appointed for a Fund, the
Sub-Administrator/Accounting Agent shall, upon receipt of Proper Instructions on
or before the termination of this Agreement for such Fund, deliver such Fund's
property in accordance with such instructions. If no successor
sub-administrator/accounting agent or administrator or accounting agent shall be
appointed for a Fund and no Proper Instructions have been received, in each
case, on or before the termination of this Agreement for such Fund, the
Sub-Administrator/Accounting Agent shall upon such termination deliver to the
Administrator of such Fund (or its successor), at the office of the
Sub-Administrator/Accounting Agent, all property of such Fund.
16
(i) This Agreement may be modified or amended from time to time by
mutual written agreement of all parties hereto.
16. NOTICES
Any notice, instruction, instrument or other communication authorized or
required by this Agreement to be given to either party shall be in writing and
may be delivered in person to the offices of the parties set forth herein during
normal business hours or by facsimile, telex or cable, or posted by prepaid
registered mail, to the following address (or such other address as a party may
specify by written notice to the other):
To the Administrators:
Xxxxxxx Xxxxx, Director
Deutsche Investment Management Americas Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxxxx X. Xxxx, Managing Director
Deutsche Investment Management Americas Inc.
Xxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxx Xxxxx, Esq.
Deutsche Investment Management Americas Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To the Sub-Administrator/Accounting Agent:
State Street Bank and Trust Company
U.S. Investor Services Division, LCC 2S
Lafayette Corporate Center
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxx, Senior Vice President
Telephone: (000) 000-0000
Fax: (000) 000-0000
17
With a copy to:
State Street Bank and Trust Company
One Xxxxxxx Xxxxxx, 0xx Xxxxx (B02/9)
X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx Xxxxx Zeven, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
Such notice, instruction, instrument or other communication shall be deemed to
have been served in the case of a registered letter at the expiration of five
business days after posting; in the case of cable, twenty-four hours after
dispatch; and, in the case of facsimile or telex, immediately on dispatch, and
if delivered outside normal business hours it shall be deemed to have been
received at the next time after delivery when normal business hours commence.
Evidence that the notice was properly addressed, stamped and put into the post
shall be conclusive evidence of posting.
17. REMOTE ACCESS SERVICES ADDENDUM
Each Administrator and the Sub-Administrator/Accounting Agent hereby
agree to the terms of the Remote Access Services Addendum attached hereto as
Schedule F.
18. NON-ASSIGNABILITY
This Agreement shall not be assigned by any party hereto without the
prior consent in writing of all other parties, except that any Administrator or
the Sub-Administrator/Accounting Agent 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 that Administrator or the
Sub-Administrator/Accounting Agent, provided, that (a) with respect to any
assignment by any party hereto, the agreements referred to in Section 20 are
also so assigned, and (b) with respect to any assignment by any Administrator,
such successor entity has also succeeded to the rights and authorities of that
Administrator under the Administration Agreements to which such Administrator is
a party and all such Administration Agreements, as so assigned, remain in full
force and effect.
19. SUCCESSORS
This Agreement and the related Schedules shall be binding on and shall
inure to the benefit of each Administrator and the Sub-Administrator/Accounting
Agent and its respective successors and permitted assigns.
20. ENTIRE AGREEMENT
This Agreement, the related Schedules which the parties may have entered
into with respect to the services provided pursuant to this Agreement, and the
agreements which the parties may have entered into from time to time regarding
service benchmarks as described in Section 9.1 and any limitation on liability
as described in Section 11, contain the entire understanding between the parties
hereto with respect to the subject matter hereof and supersede all previous
representations, warranties or commitments regarding the services to be
performed hereunder whether oral or in writing.
18
21. 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.
22. INTERPRETIVE AND ADDITIONAL PROVISIONS
In connection with the operation of this Agreement, the
Sub-Administrator/Accounting Agent and the Administrators, may from time to time
agree on such provisions interpretive of or in addition to the provisions of
this Agreement as may in their joint opinion be consistent with the general
tenor of this Agreement. Any such interpretive or additional provisions shall be
in a writing signed by all parties and shall be annexed hereto, provided that no
such interpretive or additional provisions shall contravene any applicable
federal or state regulations or any provision of a Fund's governing documents.
No interpretive or additional provisions made as provided in the preceding
sentence shall be deemed to be an amendment of this Agreement.
23. SEVERABILITY
If any provision of this Agreement is invalid, unlawful or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired, and if any provision is
inapplicable to any person or circumstance it shall nevertheless remain
applicable to all other persons and circumstances.
24. GOVERNING LAW
This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with the laws of The Commonwealth of Massachusetts,
without regard to conflict of laws principles thereunder.
25. REPRODUCTION OF DOCUMENTS
This Agreement and all schedules, addenda, exhibits, appendices,
attachments and amendments hereto may be reproduced by any photographic,
photostatic, microfilm, micro-card, miniature photographic or other similar
process. The parties hereto all/each agree that any such reproduction shall be
admissible in evidence as the original itself 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.
26. COUNTERPARTS
This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original, and all such counterparts taken together
shall constitute one and the same agreement.
[Signature page follows.]
19
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.
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
By:
------------------------------------------
Name:
Title:
XXXXXXX FUND ACCOUNTING CORPORATION
By:
------------------------------------------
Name:
Title:
INVESTMENT COMPANY CAPITAL CORP.
By:
------------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By:
------------------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
20
SCHEDULE A
LIST OF FUNDS
Name of Fund Type of Fund Administrator for Fund
(list separately any series or
portfolios of any Fund)
[See attached Excel spreadsheet.]
SCHEDULE B-1
SUB-ADMINISTRATIVE SERVICES*
Pursuant to the terms and conditions of this Agreement, the
Sub-Administrator/Accounting Agent shall, with respect to each Fund that is a
registered investment management company unless otherwise provided, do the
following:
a. Submit budgets and expense accruals for review and authorization
by the Administrator of the Fund;
b. Review calculations of fees paid to the Fund's investment
adviser, custodian and transfer agent and submit such
calculations to the Fund's Administrator for approval;
c. Prepare for review and approval by the Fund's Administrator
financial information for the Fund's semi-annual and annual
reports, proxy statements and other communications required or
otherwise to be sent to the Fund's shareholders;
d. Prepare for review by the Fund's Administrator the Fund's
periodic financial reports required to be filed with the
Securities and Exchange Commission ("SEC") and financial
information required by Form N-1A and such other reports, forms
or filings as may be mutually agreed upon;
e. 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 Administrator, investment adviser, custodian, legal
counsel or independent accountants;
f. Consult with the Administrator, the Fund's officers, independent
accountants, legal counsel, custodian and transfer agent, as
needed, in establishing the accounting policies and disclosure
of the Fund;
g. Prepare and provide fund information to the Administrator of the
Fund and external parties, including monthly portfolios as
instructed;
h. Provide product support for fund information and filings;
i. Calculate performance of the Fund for such periods of time as
the parties agree upon and provide such reports concerning such
performance as the Fund may reasonably request or deem
appropriate;
j. Provide sub-certifications to the Administrator of the Fund in
connection with Xxxxxxxx-Xxxxx Act of 2002 certification
requirements; and
k. Provide management reporting as agreed upon.
Pursuant to the terms and conditions of this Agreement, the
Sub-Administrator/Accounting Agent shall, with respect to each Fund that is a
Life Insurance Product, unless otherwise provided, do the following:
a. Prepare on an annual basis for review by the Fund's
Administrator a list of the Fund's portfolio holdings;
b. Calculate performance of the Fund for such periods of time as
the parties agree upon and provide such reports concerning such
performance as the Fund's Administrator may reasonably request
or deem appropriate; and
c. Provide management reporting as agreed upon.
Pursuant to the terms and conditions of this Agreement, the
Sub-Administrator/Accounting Agent shall, with respect to each Fund that is a
defined contribution plan, unless otherwise provided, do the following:
a. Calculate performance of the Fund for such periods of time as
the parties agree upon and provide such reports concerning such
performance as the Fund may reasonably request or deem
appropriate; and
b. Provide management reporting as agreed upon.
*Will be performed in accordance with operating policies agreed to periodically
between the Sub-Administrator/Accounting Agent and the Administrators.
SCHEDULE B-2
POLICIES AND PROCEDURES WITH RESPECT TO
SUB-ADMINISTRATIVE AND SUB-ACCOUNTING SERVICES
1. Valuation Procedures
a. Daily valuation in accordance with approved valuation
procedures.
b. Notify Administrator of securities and other assets for which
market quotations are not readily available.
c. Assist Administrator in implementation of stated valuation
policies and methods as described in the Valuation Procedures.
2. 2a-7 Procedures
a. Provide marked-to-market valuations for money market funds
weekly or as reasonably requested by Administrator
b. Monitor deviation between marked-to-market and amortized cost
valuations, in connection with 2.a. above and provide report to
Administrator.
c. Furnish such reports to the Administrator, as may be necessary,
to comply with the reporting provisions of Rule 2a-7 and the
Funds' Rule 2a-7 Procedures.
3. NAV Error Correction Policy
a. Calculate NAV errors per share, where applicable and the per
share percentage of the NAV.
b. Notify Administrator of NAV errors greater than or equal to
$0.01 per share or, if less than $0.01 per share, if greater
than 1/2 of 1% of the NAV. Provide a standard, agreed upon
analysis of the NAV error impact.
4. As of Transactions
a. Calculate "as of" impacts on a daily basis at the class and fund
level for each Fund.
b. Adhere to Board approved "as of" policy in recording adjustments
or advise Administrator where adherence is not reasonable or
practicable. Obtain authorization from Administrator prior to
taking action where adherence to Board policy is questioned.
c. Furnish such reports as may be necessary to comply with the
Funds' "as-of" transactions correction policy to Administrator.
5. Daily Dividend Resolutions
a. Calculate Fund's daily dividends and distributions according to
each Fund's Board-approved daily dividend resolution and
recommendations by the Administrator's Tax Department.
SCHEDULE B-3
SUB-ACCOUNTING SERVICES*
Pursuant to the terms and conditions of this Agreement, the
Sub-Administrator/Accounting Agent shall, with respect to each Fund, unless
otherwise provided, do the following:
1. Record general ledger entries and maintain accounting journals
and records.
2. Record capital stock and portfolio investment transactions.
3. Maintain historical tax lots in accordance with specific
identification method.
4. Maintain individual ledgers for investment securities.
5. Calculate daily expenses and process payments as authorized and
instructed by Administrator
6. Calculate daily income.
a. Calculate and record daily dividend rates as stated in
the Fund's dividend resolutions.
b. Record non-daily dividend rates as authorized by the
Fund's Administrator.
7. Calculate net asset value, and public offering price, if
applicable, based on the Fund's Prospectus, Statement of
Additional Information and approved valuation procedures.
8. Calculate, money market yields and SEC yields as applicable.
9. Reconcile daily transaction activity to the trial balance, to
third party vendors, to the Administrator records and to other
sources, as agreed upon.
10. Reconcile positions and cash between third party custodians and
the accounting records of the Fund.
11. Notify and transmit financial data as reasonably requested by
the Fund's Administrator.
12. Prepare account balances and monthly proofs.
13. Provide the Fund's Administrator and investment manager with the
cash balance available for investment purposes daily for the
legacy Deutsche Bank funds which have not converted to State
Street's custody platform.
14. Provide the Fund's Administrator with accounting information and
exception reporting, as reasonably requested.
15. Provide accounting information as reasonably requested for the
Fund to prepare tax calculations and reporting.
16. Assist as reasonably required in Fund events such as
liquidations, in-kind transactions, mergers, expense structure
changes. etc.
17. Assist independent accountants or any regulatory body with
appropriate jurisdiction over the Fund in any requested review
of the Fund's accounts or records.
18. Record income from securities lending activity and provide
reports as reasonably requested.
19. Provide management reporting as agreed upon.
20. Value portfolio securities in accordance with the Fund's
approved valuation procedures.
21. Assist the Fund's Administrator in establishing the accounting
policies of the Fund.
22. Transmit end of day fund information to the Fund's transfer
agent and other parties as instructed by the Fund's
Administrator.
23. Provide sub-certifications to the Administrator of the Fund in
connection with Xxxxxxxx-Xxxxx Act of 2002 certification
requirements.
* Will be performed in accordance with operating policies agreed to
periodically between the Sub-Administrator/Accounting Agent and the
Administrators.
SCHEDULE C
DATA REQUIRED FOR SUB-ADMINISTRATIVE AND
SUB-ACCOUNTING SERVICES
INFORMATION REQUIRED TO BE SUPPLIED RESPONSIBLE PARTY
Portfolio Trade Authorizations Investment Adviser
Currency Transactions Investment Adviser
Cash Transaction Report Custodian
Portfolio Prices Third Party Vendors/Investment Adviser
Exchange Rates Third Party Vendors/Investment Adviser
Capital Stock Activity Report Transfer Agent
Dividend/Distribution Schedule Investment Adviser/Administrator
Dividend/Distribution Declaration Investment Adviser/Administrator
Dividend Reconciliation/Confirmation Transfer Agent
Corporate Actions Third Party Vendors/Custodian
Service Provider Fee Schedules Investment Adviser
Expense Budget Investment Adviser/Administrator
Amortization Policy Investment Adviser/Administrator
Accounting Policy/Complex Investments Investment Adviser/Administrator
Audit Management Letter Auditor
Shareholder Letter Investment Adviser
Annual/Semi-Annual Reports Investment Adviser/Administrator
SCHEDULE D
FEES AND EXPENSE REIMBURSEMENTS
STATE STREET BANK AND TRUST COMPANY
FUND ADMINISTRATION COMPLEX FEE SCHEDULE
FOR
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS, INC.
April 1, 2003
I. Fees for Fund Administration Services:
The following fee schedule is for the delivery of specified fund
administration services to Deutsche Asset Management in support of the
Xxxxxxx fund complex to include: Financial reporting; Monthly expense
budgeting and xxxx processing; and Performance reporting. The following
fees schedules will apply to the noted product types as follows:
A.) Long Term Mutual Funds, Closed End Funds, Money Market Funds,
Variable Annuity and Fund of Funds
REPORTING, EXPENSES
AND PERFORMANCE
The greater of:
Basis Points on All Assets (a)or 0.393
Minimum Per Portfolio (b) $30,000
PLUS
Class Fees (see II below) $ 1,500
Feeder Fee (see II below) $20,000
(a) Assets include all assets for the fund complex less fund of
funds, DC, and Insurance assets for both service levels.
(b) Portfolios include all Funds except Feeder Funds, DC and
Insurance funds. Fund of Funds are included in the minimum
portfolio charge but assets are not double counted as part of
the basis point fee.
B.) Defined Contribution Plans - performance only
Flat fee per class per year $2,000
C.) Insurance Products - annual portfolio of investments and monthly
performance
Flat fee per portfolio / year $5,000 for annual portfolio
of investments
Flat fee per class /year $2,000 for performance
Fund Fees:
Total net assets (as defined) of all portfolios will be used to
calculate the fee by multiplying the net assets on all portfolios by the
basis point fees in the above schedule. The minimum fee will be
calculated by multiplying the minimum fee by the number of portfolios
(as defined) to arrive at the
total minimum fee. The greater of the basis point fee or the minimum fee
will be accrued to each portfolio based on the pro-rata total net asset
value of each portfolio, or as instructed by the client.
II. Multiple Classes of Shares / Feeder Funds
As noted above, an additional annual fee will be applied for each class
of shares, excluding the first class of shares, if more than one class
of shares is operational in a Fund. There will also be a separate charge
as noted above for each feeder fund.
STATE STREET BANK AND TRUST COMPANY
FUND ADMINISTRATION COMPLEX FEE SCHEDULE
FOR
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS, INC.
April 1, 2003 (continued)
III. OUT OF POCKET EXPENSES - Include, But May Not Be Limited To:
Legal fees, audit fees and other professional fees
Postage, archive, telephone and express delivery
Supplies related to Fund records
Travel and lodging for Board and Operations meetings
Preparation of financial statements other than Annual and Semi-Annual
Reporting, $3,000 per financial report.
Such other expenses as may be mutually agreed to between the
Sub-Administrator/Accounting Agent and the Administrators from time to
time.
IV. SPECIAL ARRANGEMENTS
Fees for activities of a non-recurring nature such as reorganizations,
and/or preparation of special reports will be subject to negotiation.
Fees for a change in fund structure (i.e., Core and Feeder) are subject
to negotiation.
STATE STREET BANK AND TRUST COMPANY
FUND ACCOUNTING FEE SCHEDULE
FOR
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS, INC.
April 1, 2003
I FUND ACCOUNTING
Maintain investment ledgers; provide selected portfolio transactions,
position and income reports. Maintain general ledger and capital stock
accounts. Prepare daily trial balances. Calculate net asset value daily.
Provide selected general ledger reports.
The fund accounting fee shown below is an annual charge, billed and
payable monthly, based on average monthly net assets for the entire
complex, by the asset class categorized below.
Per Fund
------------------------------
Fund Net Assets Fund Accounting Minimum Fee
------------------------------------------------------------------------
Global and Domestic Fixed Income and .75 BPS $ 31,000
Balanced Funds
Global and Domestic Equity Funds .45 BPS $ 27,500
Money Market Funds .10 BPS $ 20,000
Fund of Funds will have a flat accounting fee of $15,000 per fund.
There will be no charge for access to In~Sight.
II MULTI-CLASS, MULTI-MANAGED AND MASTER FEEDER FEES
Multi-Class Fees: $200 per additional class per month
Multi-Managed Fee $250 per additional manager per month
Master Feeder $250 per feeder fund per month
III ADVERTISED YIELD CALCULATION
Monthly charge of $300 per fund and $50 per additional class of shares.
IV. SPECIAL SERVICES
Fees for activities of a non-recurring nature such as fund
consolidations or reorganizations, extraordinary security shipments and
the preparation of special reports will be subject to negotiation. Fees
for tax accounting/record keeping for options, financial futures, and
other special items will be negotiated separately.
STATE STREET BANK AND TRUST COMPANY
FUND ACCOUNTING FEE SCHEDULE
FOR
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS, INC.
April 1, 2003 (continued)
V. OUT-OF-POCKET EXPENSES
A billing for the recovery of applicable out-of-pocket expenses will be
made as of the end of each month. Out-of-pocket expenses include, but
are not limited to the following:
Telephone
Courier, Postage and Insurance
Duplicating Fees
External Legal Fees, Audit Fees and Other Professional Fees
Supplies Related to Fund Records
Special programming or enhancements to programs or transmissions will
be billable at an agreed upon rate.
VI. MONTHLY QUOTE CHARGE PER PRICING VENDOR
Reuters / Bridge Equity Foreign Equities 2.00
Reuters / Bridge Equity Listed Equities and OTC Equities 2.00
Reuters / Bridge Fixed Income Corporate and Government Bonds 11.00
XX Xxxxx/S&P Municipal Bonds 12.00
Bear Xxxxxxx Corporate and Government Bonds 7.00
CIBC World Markets Canadian Fixed Income 6.00
FRI Corporation International Fixed Income 8.00
FRI Corporation Unlisted Equities 8.00
FT Interactive Data
Corps, Gov't, Convertibles and ADR 8.00
MBS Pools 5.00
CMOs 11.00
Municipals 11.00
International Fixed Income 14.00
Manual Quotes Per Security 10.00
For billing purposes, the monthly quote charge will be based on the number of
month end holdings held in a fund.
SCHEDULE E
FORM OF PRICE SOURCE AUTHORIZATION
To: State Street Bank and Trust Company
From: [Administrator Name] _________________________________
Administrator Address: _________________________________
Date: ___________
Re: PRICE SOURCE AUTHORIZATION
Reference is made to the Sub-Administration and Sub-Accounting Agreement dated
_________ __, 2003 (as amended, restated, modified or supplemented from time to
time, the "Sub-Administration and Sub-Accounting Agreement") by and between
___________ (the "Administrator"), other administrators and State Street Bank
and Trust Company (the "Sub-Administrator/Accounting Agent"). Capitalized terms
used in this Price Source Authorization or in any attachment or supplement shall
have the meanings provided in the Sub-Administration and Sub-Accounting
Agreement unless otherwise specified. Pursuant to the Sub-Administration and
Sub-Accounting Agreement, the Administrator hereby directs the
Sub-Administrator/Accounting Agent to calculate the net asset value ("NAV") of
each Fund, in accordance with the terms of such Fund's currently effective
prospectus or other governing document. The Sub-Administrator/Accounting Agent
will perform the NAV calculation subject to the terms and conditions of the
Sub-Administration and Sub-Accounting Agreement and this Price Source
Authorization.
The Administrator hereby authorizes the Sub-Administrator/Accounting Agent to
use the pricing sources specified on the attached Authorization Matrix (as
amended from time to time) as sources for prices of assets in calculating the
NAV of each Fund. The Administrator understands that the
Sub-Administrator/Accounting Agent does not assume responsibility for the
accuracy of the quotations provided by the specified pricing sources and that
the Sub-Administrator/Accounting Agent shall have no liability for any incorrect
data provided by the pricing sources specified by the Administrator, except as
may arise from the Sub-Administrator/Accounting Agent's lack of reasonable care
in performing agreed upon tolerance checks as to the data furnished and
calculating the NAV of a Fund in accordance with the data furnished to the
Sub-Administrator/Accounting Agent. The Administrator also acknowledges that
prices supplied by the Administrator or an affiliate may be subject to approval
of a Fund's Board of Trustees or Board of Directors, as applicable, and are not
the responsibility of the Sub-Administrator/Accounting Agent.
Subject to the standard of care for the Sub-Administrator/Accounting Agent set
forth in the first sentence of Section 11 of the Sub-Administration and
Sub-Accounting Agreement, the Administrator agrees to indemnify and hold the
Sub-Administrator/Accounting Agent harmless from any claim, loss or damage
arising as a result of using prices furnished by any specified pricing source.
The Sub-Administrator/Accounting Agent agrees that written notice will be sent
to the Administrator (i) of any change in the name of any specified pricing
source or (ii) in the event any specified pricing source has informed the
Sub-Administrator/Accounting Agent that it shall no longer support the pricing
logic chosen by the Administrator, in each case, as soon as practicable after
such information is available to the Sub-Administrator/Accounting Agent.
Kindly acknowledge your acceptance of this authorization in the space provided
below.
[NAME OF ADMINISTRATOR]
By
---------------------------------------------
Name:
Title:
The foregoing authorization is hereby accepted.
STATE STREET BANK AND TRUST COMPANY
By:
--------------------------------------------
, Vice President
AUTHORIZATION MATRIX to be attached to Price Source Authorization dated _______
CLIENT: ________________________ Effective Date:______(supersedes
prior Authorization Matrices)
Note: [Please submit Client Name, Fund Name and/or List of Funds with this form]
SECURITY TYPE PRIMARY SOURCE SECONDARY TERTIARY SOURCE PRICING LOGIC PRICING DEFAULT VALUATION
SOURCE LOGIC POINT
------------------------------------------------------------------------------------------------------------------------------------
EQUITIES
U. S. Listed Equities
(NYSE, AMEX) Bridge Reuters Last Market Close
U.S. OTC Equities Bridge Reuters Market Close
(Nasdaq)
Foreign Equities
Listed ADR's
FIXED INCOME
Municipal Bonds
US Bonds (Treasuries,
MBS,
ABS, Corporates)
Eurobonds/Foreign
Bonds
OTHER ASSETS
Options
Futures
Non - Listed ADR's
EXCHANGE RATES
FORWARD POINTS
BPS: Global Pricing Services 35 Last Update: 04/30/2003
Price Source and Methodology Authorization
Instructions: For each security type allowed by the Fund Prospectus, please
indicate the primary, secondary and tertiary source to be used in calculating
Net Asset Value for the Funds identified. NOTE: If Investment Manager is a
Pricing Source, please specify explicitly.
State Street performs a Data Quality review process as specified in the Sources
Status Pricing Matrix on the NAVigator Pricing System which specifies pricing
tolerance thresholds, index and price aging details. The Sources Status Pricing
Matrix will be provided for your information and review.
AUTHORIZED BY:
------------------------
Authorized Officer
ACCEPTED:
--------------------------------
State Street Vice President
BPS: Global Pricing Services 36 Last Update: 04/30/2003
SCHEDULE F
REMOTE ACCESS SERVICES ADDENDUM
ADDENDUM to that certain Sub-Administration and Sub-Accounting Agreement
dated as of ________, 2003 (the "Sub-Administration and Sub-Accounting
Agreement") by and among _______________________ (the "Customer"), other
administrators and State Street Bank and Trust Company, including its
subsidiaries and affiliates ("State Street").
State Street has developed and utilizes proprietary accounting and other
systems in conjunction with the services which State Street provides to the
Customer. In this regard, State Street maintains certain information in
databases under its control and ownership which it makes available to its
customers (the "Remote Access Services").
The Services
State Street agrees to provide the Customer, and its designated investment
advisors, consultants or other third parties authorized by State Street
("Authorized Designees") with access to In~SightSM as described in Exhibit A or
such other systems as may be offered from time to time (the "System") on a
remote basis.
Security Procedures
The Customer agrees to comply, and to cause its Authorized Designees to comply,
with remote access operating standards and procedures and with user
identification or other password control requirements and other security
procedures as may be issued from time to time by State Street for use of the
System and access to the Remote Access Services. The Customer agrees to advise
State Street immediately in the event that it learns or has reason to believe
that any person to whom it has given access to the System or the Remote Access
Services has violated or intends to violate the terms of this Addendum and the
Customer will cooperate with State Street in seeking injunctive or other
equitable relief. The Customer agrees to discontinue use of the System and
Remote Access Services, if requested, for any security reasons cited by State
Street.
Fees
Fees and charges for the use of the System and the Remote Access Services and
related payment terms shall be as set forth in the Fee Schedule initially set
forth on Schedule D to the Sub-Administration and Sub-Accounting Agreement, as
may be amended from time to time by the parties. The Customer shall be
responsible for any tariffs, duties or taxes imposed or levied by any government
or governmental agency by reason of the transactions contemplated by this
Addendum, including, without limitation, federal, state and local taxes, use,
value added and personal property taxes (other than income, franchise or similar
taxes which may be imposed or assessed against State Street). Any claimed
exemption from such tariffs, duties or taxes shall be supported by proper
documentary evidence delivered to State Street.
Proprietary Information/Injunctive Relief
The System and Remote Access Services described herein and the databases,
computer programs, screen formats, report formats, interactive design
techniques, formulae, processes, systems, software, know- how, algorithms,
programs, training aids, printed materials, methods, books, records, files,
documentation
xxxvii
and other information made available to the Customer by State Street as part of
the Remote Access Services and through the use of the System and all copyrights,
patents, trade secrets and other proprietary rights of State Street related
thereto are the exclusive, valuable and confidential property of State Street
and its relevant licensors (the "Proprietary Information"). The Customer agrees
on behalf of itself and its Authorized Designees to keep the Proprietary
Information confidential and to limit access to its employees and Authorized
Designees (under a similar duty of confidentiality) who require access to the
System for the purposes intended. The foregoing shall not apply to Proprietary
Information in the public domain or required by law to be made public.
The Customer agrees to use the Remote Access Services only in connection with
the proper purposes of this Addendum. The Customer will not, and will cause its
employees and Authorized Designees not to, (i) permit any third party, other
than the Customer's Authorized Designees, to use the System or the Remote Access
Services, (ii) sell, rent, license or otherwise use the System or the Remote
Access Services in the operation of a service bureau or for any purpose other
than as expressly authorized under this Addendum, (iii) use the System or the
Remote Access Services for any fund, trust or other investment vehicle without
the prior written consent of State Street, or (iv) allow or cause any
information transmitted from State Street's databases, including data from third
party sources, available through use of the System or the Remote Access
Services, to be published, redistributed or retransmitted for other than use for
or on behalf of the Customer, as State Street's customer.
The Customer agrees that neither it nor its Authorized Designees will modify the
System in any way; enhance or otherwise create derivative works based upon the
System, nor will the Customer or the Customer's Authorized Designees reverse
engineer, decompile or otherwise attempt to secure the source code for all or
any part of the System.
The Customer acknowledges that the disclosure of any Proprietary Information, or
of any information which at law or equity ought to remain confidential, will
immediately give rise to continuing irreparable injury to State Street
inadequately compensable in damages at law and that State Street shall be
entitled to obtain immediate injunctive relief against the breach or threatened
breach of any of the foregoing undertakings, in addition to any other legal
remedies which may be available.
Limited Warranties
State Street represents and warrants that it is the owner of and has the right
to grant access to the System and to provide the Remote Access Services
contemplated herein. Because of the nature of computer information technology
including, but not limited to, the use of the Internet, and the necessity of
relying upon third party sources, and data and pricing information obtained from
third parties, the System and Remote Access Services are provided "AS IS", and
the Customer and its Authorized Designees shall be solely responsible for the
investment decisions, results obtained, regulatory reports and statements
produced using the Remote Access Services. State Street and its relevant
licensors will not be liable to the Customer or its Authorized Designees for any
direct or indirect, special, incidental, punitive or consequential damages
arising out of or in any way connected with the System or the Remote Access
Services, nor shall either party be responsible for delays or nonperformance
under this Addendum arising out of any cause or event beyond such party's
control.
State Street will take reasonable steps to ensure that its products (and those
of its third-party suppliers) reflect the available state of the art technology
to offer products that are Year 2000 compliant, including, but not limited to,
century recognition of dates, calculations that correctly compute same century
and multi century formulas and date values, and interface values that reflect
the date issues arising between now and
xxxviii
the next one-hundred years, and if any changes are required, State Street will
make the changes to its products at no cost to you and in a commercially
reasonable time frame and will require third-party suppliers to do likewise. The
Customer will do likewise for its systems.
EXCEPT AS EXPRESSLY SET FORTH IN THIS ADDENDUM, STATE STREET, FOR ITSELF AND ITS
RELEVANT LICENSORS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES CONCERNING THE
SYSTEM AND THE SERVICES TO BE RENDERED HEREUNDER, WHETHER EXPRESS OR IMPLIED
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
Infringement
State Street will defend or, at our option, settle any claim or action brought
against the Customer to the extent that it is based upon an assertion that
access to the System or use of the Remote Access Services by the Customer under
this Addendum constitutes direct infringement of any patent or copyright or
misappropriation of a trade secret, provided that the Customer notifies State
Street promptly in writing of any such claim or proceeding and cooperates with
State Street in the defense of such claim or proceeding. Should the System or
the Remote Access Services or any part thereof become, or in State Street's
opinion be likely to become, the subject of a claim of infringement or the like
under any applicable patent or copyright or trade secret laws, State Street
shall have the right, at State Street's sole option, to (i) procure for the
Customer the right to continue using the System or the Remote Access Services,
(ii) replace or modify the System or the Remote Access Services so that the
System or the Remote Access Services becomes noninfringing, or (iii) terminate
this Addendum without further obligation.
Termination
Either party to the Sub-Administration and Sub-Accounting Agreement may
terminate this Addendum (i) for any reason by giving the other party at least
one-hundred and eighty (180) days prior written notice in the case of notice of
termination by State Street to the Customer or thirty (30) days notice in the
case of notice from the Customer to State Street of termination, or (ii)
immediately for failure of the other party to comply with any material term and
condition of the Addendum by giving the other party written notice of
termination. This Addendum shall in any event terminate within ninety (90) days
after the termination of the Sub-Administration and Sub-Accounting Agreement,
provided that if State Street has been requested to provide services during the
Extension Period (as defined in the Sub-Administration and Sub-Accounting
Agreement), this Addendum shall terminate within one-hundred and eighty (180)
days after the termination of the Sub-Administration and Sub-Accounting
Agreement. In the event of termination, the Customer will return to State Street
all copies of documentation and other confidential information in its possession
or in the possession of its Authorized Designees. The foregoing provisions with
respect to confidentiality and infringement will survive termination for a
period of three (3) years.
Miscellaneous
This Addendum and the exhibit hereto constitute the entire understanding of the
parties to the Sub-Administration and Sub-Accounting Agreement with respect to
access to the System and the Remote Access Services. This Addendum cannot be
modified or altered except in a writing duly executed by each of State Street
and the Customer and shall be governed by and construed in accordance with the
laws of The Commonwealth of Massachusetts.
xxxix
By its execution of the Sub-Administration and Sub-Accounting Agreement, the
Customer accepts responsibility for its and its Authorized Designees' compliance
with the terms of this Addendum.
x1
EXHIBIT A
to
REMOTE ACCESS SERVICES ADDENDUM
IN~SIGHT(SM)
System Product Description
In~Sight(SM) provides bilateral information delivery, interoperability, and
on-line access to State Street. In~Sight(SM) allows users a single point of
entry into State Street's diverse systems and applications. Reports and data
from systems such as Investment Policy Monitor(SM), Multicurrency Horizon(SM),
Securities Lending, Performance & Analytics and Electronic Trade Delivery can be
accessed through In~Sight(SM). This Internet-enabled application is designed to
run from a Web browser and perform across low-speed data lines or corporate
high-speed backbones. In~Sight(SM) also offers users a flexible toolset,
including an ad-hoc query function, a custom graphics package, a report
designer, and a scheduling capability. Data and reports offered through
In~Sight(SM) will continue to increase in direct proportion with the customer
roll out, as it is viewed as the information delivery system will grow with
State Street's customers.
x1i
