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Exhibit 9(a)
ADMINISTRATIVE SERVICES AGREEMENT
THIS AGREEMENT is made as of the 23rd day of October, 1995 by and
between OLD MUTUAL EQUITY GROWTH ASSETS SOUTH AFRICA FUND, a Massachusetts
business trust (the "FUND"), and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company (the "ADMINISTRATIVE AGENT").
W I T N E S S E T H:
WHEREAS, the Fund desires to retain the Administrative Agent to perform
certain accounting, registrar, transfer agency and administrative services and
the Administrative Agent is willing to perform such services upon the terms and
conditions hereinafter set forth.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the parties hereto do hereby agree as
follows:
Section 1. APPOINTMENT AS ADMINISTRATIVE AGENT.
The Fund hereby appoints the Administrative Agent to act as registrar,
transfer agent and accounting and administrative agent for the Fund, and the
Administrative Agent hereby accepts such appointment, in each case upon the
terms and conditions set forth below and subject to the control, supervision and
direction of the Fund and the review and comment by the Fund's auditors and
legal counsel.
Section 2. DELIVERY OF DOCUMENTS.
The Fund shall promptly deliver to the Administrative Agent certified copies
of each of the following documents and all future amendments and supplements
thereto, if any:
(a) The Declaration of Trust and by-laws of the Fund (as the same may be
amended from time to time, the "CHARTER DOCUMENTS");
(b) The Fund's currently effective Registration Statement under the
Investment Company Act of 1940, as amended (the "1940 ACT") and Private
Placement Memorandum, together with all amendments and supplements
thereto in effect from time to time (collectively, the "PLACEMENT
MEMORANDUM" and together with the Charter Documents, the "CONSTITUTIVE
DOCUMENTS");
(c) Certified copies of the resolutions of the Board of Trustees of the
Fund (the "BOARD") authorizing (1) the Fund to enter into this
Agreement and (2) certain individuals on behalf of the Fund (a) to give
instructions to the Administrative
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Agent pursuant to this Agreement and (b) to sign checks and pay
expenses on behalf of the Fund; and
(d) Such other certificates, documents or opinions which the Administrative
Agent may, in its reasonable discretion, request in connection with the
performance of its duties hereunder.
Section 3. ACCOUNTING SERVICES.
The Administrative Agent shall maintain the books of account of the Fund and
shall perform the following duties in the manner prescribed by the Constitutive
Documents and further in accordance with written procedures adopted by the Fund
from time to time:
(a) Record general ledger entries;
(b) Calculate daily net income;
(c) Reconcile activity to the trial balance;
(d) Calculate and publish daily net asset value; and
(e) Prepare account balances.
The Fund shall provide timely prior written notice to the Administrative
Agent of any modification in the manner in which such calculations are to be
performed. For purposes of calculating the net asset value of the Fund, the
Administrative Agent shall value the Fund's portfolio securities utilizing
prices obtained from sources designated by the Fund on the Price Source
Authorization form attached hereto as Exhibit A, as the same may be amended by
the Fund and the Administrative Agent from time to time, or otherwise designated
by means of Proper Instructions (as such term is defined in Section 9 below)
(collectively, the "AUTHORIZED PRICE SOURCES"). The Administrative Agent shall
not be responsible for any revisions to the methods of calculation prescribed by
the Constitutive Documents or the Fund unless and until such revisions are
communicated in writing to the Administrative Agent.
Section 4. REGISTRAR AND TRANSFER AGENCY SERVICES.
The Administrative Agent shall act as registrar and transfer agent for the
shares (the "SHARES") of each class of beneficial interest of the Fund as may be
authorized and issued from time to time, as dividend disbursing agent, and as
relevant agent in connection with accumulation, open account or similar plans,
including without limitation any periodic investment plan or periodic withdrawal
program, in each case in accordance with the provisions of the Constitutive
Documents and further in accordance with written procedures adopted by the Fund
from time to time.
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In the foregoing capacity, the Administrative Agent shall perform the
following services:
(a) In accordance with procedures set forth in the Placement Memorandum and
established from time to time by agreement between the Fund and the
Administrative Agent, the Administrative Agent shall:
(i) Receive for acceptance, orders for the purchase of Shares
authorized pursuant to the Charter Documents of the Fund and
promptly deliver payment and appropriate documentation therefor
to the entity acting as custodian of the Fund from time to time
(the "CUSTODIAN");
(ii) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder
account;
(iii) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation therefor
to the Custodian;
(iv) In respect to the transactions in items (i), (ii) and (iii)
above, the Administrative Agent shall be authorized to execute
such transactions directly with broker-dealers acting on behalf
of the Fund or a placement agent or distributor who shall
thereby be deemed to be acting on behalf of the Fund;
(v) At the appropriate time as and when it receives monies paid to
it by the Custodian with respect to any redemption, pay over or
cause to be paid over in the appropriate manner such monies as
instructed by the redeeming Shareholders;
(vi) Subject to the Charter Documents of the Fund, effect transfers
of Shares by the registered owners thereof upon receipt of
appropriate instructions;
(vii) Prepare and transmit payments for dividends and distributions
declared by the Fund;
(viii) Track ownership of Shares issued in the Initial Offering and
Second Offering for purposes of calculating the Servicing Fee
(as each such term is defined in the Placement Memorandum);
(ix) Issue replacement certificates for those certificates alleged
to have been lost, stolen or destroyed upon receipt of
indemnification satisfactory to the Administrative Agent and
protecting the Administrative Agent and the Fund, and, at its
option, issue replacement certificates in place of
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mutilated stock certificates upon presentation thereof and
without such indemnity;
(x) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing; and
(xi) Maintain the Register of Shareholders of the Fund in accordance
with applicable law and the Charter Documents of the Fund;
record the issuance of Shares of the Fund and maintain a record
of the total number of Shares of the Fund which are authorized
(based upon data provided to it by the Fund) and issued and
outstanding. The Administrative Agent shall also provide the
Fund and its designated agents on a regular basis with a record
of the total number of Shares which are authorized and issued
and outstanding and shall have no obligation, when recording
the issuance of Shares, to monitor the issuance of such Shares
or to take cognizance of any laws relating to the issue or sale
of such Shares, which functions shall be the sole
responsibility of the Fund.
(b) In addition to and neither in lieu nor in contravention of the services
set forth in the above paragraph (a), the Administrative Agent shall:
perform the customary services of a transfer agent, dividend disbursing
agent, and, as relevant, agent in connection with accumulation,
open-account or similar plans (including without limitation any
periodic investment plan or periodic withdrawal program), including but
not limited to: maintaining all Shareholder accounts, preparing
Shareholder meeting lists, mailing proxies, mailing Shareholder reports
and Placement Memoranda to current Shareholders and prospective
investors, preparing and mailing confirmation forms and statements of
account to Shareholders for all purchases and redemptions of Shares and
other confirmable transactions in Shareholder accounts, preparing and
mailing activity statements for Shareholders, and providing Shareholder
account information.
The Administrative Agent shall provide such additional transfer agency
services on behalf of the Fund as may be agreed upon in writing from time to
time by the Fund and the Administrative Agent.
Section 5. GENERAL ADMINISTRATIVE SERVICES.
The Administrative Agent shall provide all administrative services necessary
or convenient for the efficient conduct of the Fund as may be agreed upon from
time to time (excluding services provided by the Fund's Custodian, legal counsel
or independent accountants) in each case in accordance with procedures
established by the Fund and the Administrative Agent, including, without
limitation, the following services:
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(a) Oversee the publication of the Fund's net asset value in accordance
with the policy of the Fund as adopted from time to time by the Board;
(b) Oversee the maintenance by the Custodian of certain books and records
of the Fund as required under Rule 31a-1(b) of the 1940 Act;
(c) Prepare the Fund's United States ("U.S.") federal, state and local
income tax returns for review by the Fund's independent accountants and
filing by the Fund's treasurer;
(d) Prepare the Fund's expense budget and submit for approval by officers
of the Fund and arrange for payment of the Fund's expenses;
(e) Prepare for review and approval by officers of the Fund financial
information for the Fund's semi-annual and annual reports, proxy
statements and other communications required or otherwise to be sent to
Fund Shareholders, and arrange for the printing and dissemination of
such reports and communications to Shareholders;
(f) Prepare for review by an officer of and legal counsel for the Fund the
periodic financial reports required to be filed by the Fund with the
Securities and Exchange Commission ("SEC") on Form N-SAR and financial
information required by Form N-1A and such other reports, forms or
filings as may be mutually agreed upon;
(g) Prepare reports relating to the business and affairs of the Fund as may
be mutually agreed upon and not otherwise prepared by the Fund's
Custodian, legal counsel or independent accountants;
(h) Make such reports and recommendations to the Board concerning the
performance of the independent accountants as the Board may reasonably
request;
(i) Make such reports and recommendations to the Board concerning the
performance and fees of the Fund's Custodian as the Board may
reasonably request or deems appropriate;
(j) Oversee and review calculations of fees paid to the Fund's Custodian;
(k) Consult with the Fund's officers, independent accountants, legal
counsel and Custodian in establishing the accounting policies of the
Fund;
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(l) Review implementation of any dividend reinvestment programs authorized
by the Board;
(m) Respond to, or refer to the Fund's officers, Shareholder inquiries
relating to the Fund;
(n) Provide such periodic testing of portfolios as may be mutually agreed
upon to assist the Fund in complying with the mandatory qualification
requirements of the Internal Revenue Code of 1986, as amended (the
"CODE"), the requirements of the 1940 Act and the Placement Memorandum
limitations;
(o) Perform the functions specified in such compliance procedures
memorandum as may be mutually agreed upon from time to time by the
Administrative Agent and the Fund; and
(p) Prepare materials for Board meetings and make presentations where
appropriate.
Section 6. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS; RECORDS.
The Fund assumes full responsibility for complying with all securities, tax,
commodities and other laws, rules and regulations applicable to it.
The Administrative Agent shall create and maintain all records relating to
the services provided hereunder in a manner which shall meet the obligations of
the Fund under the Constitutive Documents and applicable law. All such records
shall be the property of the Fund and shall at all times during the regular
business hours of the Administrative Agent be open for inspection by duly
authorized officers, employees or agents of the Fund and employees and agents of
the regulatory agencies having jurisdiction over the Fund. The Administrative
Agent shall preserve the records required to be maintained hereunder for the
period required by law unless such records are earlier surrendered in connection
with the termination of this Agreement or otherwise upon written request.
Section 7. APPOINTMENT OF AGENTS.
The Administrative Agent may at its own expense employ agents in the
performance of its duties and the exercise of its rights under this Agreement,
provided that the employment of such agents shall not reduce the Administrative
Agent's obligations or liabilities hereunder. The Fund acknowledges that certain
duties of the Administrative Agent will be performed by certain affiliates and
agents of the Administrative Agent in Toronto, Canada.
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Section 8. PROVISION OF INFORMATION.
The Fund shall provide, or shall cause a third party to provide, certain
data to the Administrative Agent as a condition to the Administrative Agent's
obligations under Section 3 above. The data required to be provided pursuant to
this Section is set forth on Schedule A hereto, which schedule may be separately
amended or supplemented by agreement between the Fund and the Administrative
Agent from time to time.
The Administrative Agent is authorized and instructed to rely upon the
information it receives from the Fund or any third party authorized in writing
by the Fund (a "THIRD PARTY AGENT") to provide such information to the
Administrative Agent. The Administrative Agent shall have no responsibility to
review, confirm or otherwise assume any duty with respect to the accuracy or
completeness of any information supplied to it by the Fund or any Third Party
Agent.
Section 9. INSTRUCTIONS AND ADVICE.
The term "PROPER INSTRUCTIONS" shall mean instructions received by the
Administrative Agent from the Fund or any person duly authorized by the Fund in
writing. Such instructions may be in writing signed by the authorized person or
may be in a tested communication or in a communication utilizing access codes
effected between electro-mechanical or electronic devices or may be by such
other means as may be agreed upon from time to time by the Administrative Agent
and the party giving such instructions (including, without limitation, oral
instructions). All oral instructions shall be promptly confirmed in writing. The
Fund shall cause its duly authorized representative to certify to the
Administrative Agent in writing the names and specimen signatures of persons
authorized to give Proper Instructions. The Administrative Agent shall be
entitled to rely upon the identity and authority of such persons until it
receives written notice from the Fund to the contrary. The Administrative Agent
may rely upon any Proper Instruction reasonably believed by it to be genuine and
to have been properly issued by or on behalf of the Fund. The Fund shall give,
or cause to be given, timely Proper Instructions to the Administrative Agent as
necessary in regard to matters affecting its duties under this Agreement.
At any time, the Administrative Agent may apply to any officer of the Fund
for instructions and may consult with its own outside legal counsel or outside
counsel for the Fund or the independent accountants for the Fund at the expense
of the Fund, with respect to any matter arising in connection with the services
to be performed by the Administrative Agent under this Agreement, provided that
the Administrative Agent shall obtain the prior approval of the Fund for any
expenditure in excess of $5,000 in connection with seeking such advice. The
Administrative Agent shall not be liable, and shall be indemnified by the Fund,
for any action taken or omitted by it in good faith in reliance upon any such
instructions or advice or upon any paper or document believed by it to be
genuine and to have been signed by the
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proper person or persons. The Administrative Agent shall not be held to have
notice of any change of authority of any person until receipt of written notice
thereof from the Fund. Nothing in this paragraph shall be construed as imposing
upon the Administrative Agent any obligation to seek such instructions or
advice, or to act in accordance with such advice when received.
Section 10. STANDARD OF CARE; LIMITATION ON LIABILITY.
The Administrative Agent shall at all times exercise reasonable care and
diligence and act in good faith in the performance of its duties hereunder,
provided, however, that the Administrative Agent shall assume no responsibility
and shall be without liability for any loss, liability, claim or expense
suffered or incurred by the Fund unless caused by its own fraud, willful
default, gross negligence or willful misconduct or that of its agents or
employees. The Administrative 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 7, shall have no responsibility for the actions or
activities of any other party, including other service providers to the Fund. In
any event, the Administrative Agent's liability under this Agreement shall be
limited to $5,000,000 for any liability or loss suffered by the Fund arising
from or in connection with the services rendered by the Administrative Agent
pursuant to subsections (a), (b), (c), (e), (f), (n) and (o) of Section 5
hereof, including, but not limited to, any liability relating to qualification
of the Fund as a regulated investment company in the U.S. or any liability
relating to the Fund's compliance with any applicable tax or securities statute,
regulation or ruling of any jurisdiction. The foregoing limitation shall not
apply to any liability for losses or damages arising under other sections of
this Agreement.
The Administrative Agent shall exercise reasonable care so that no action is
taken or omitted by it under this Agreement which will result in the Fund
becoming resident for tax purposes in any jurisdiction where the Administrative
Agent performs its duties under this Agreement, provided that the Administrative
Agent shall have no responsibility or liability for the Fund becoming resident
for tax purposes in any jurisdiction where the Fund or its agents carry out
activities.
Without in any way limiting the generality of the foregoing, the
Administrative Agent shall in no event be liable for any loss or damage arising
from causes beyond its reasonable control, including, without limitation, delay
or cessation of services hereunder or any damages to the Fund resulting
therefrom as a result of any work stoppage (except a work stoppage by employees
of the Administrative Agent which is not part of a more general labor stoppage),
power or other mechanical failure, computer virus, natural disaster,
governmental action, communications disruption or other impossibility of
performance. The Administrative Agent shall not be liable for any special,
indirect, incidental, or consequential damages of any kind whatsoever
(including, without limitation, attorneys' fees) in any way due to the Fund's
use of
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the services provided hereunder or the performance of or failure to perform the
Administrative Agent's obligations under this Agreement.
The Fund and any Third Party Agents or Authorized Price Sources from which
the Administrative Agent shall receive or obtain certain records, reports and
other data included in the accounting services provided hereunder are solely
responsible for the contents of such information, including, without limitation,
the accuracy thereof. The Administrative 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 by the Fund as a result of the Administrative Agent's
reasonable reliance on and utilization of such information, except as otherwise
required by the terms of the Price Source Authorization form attached hereto as
Exhibit A with respect to the use of data obtained from Authorized Price
Sources. The Administrative Agent shall have no responsibility and shall be
without liability for any loss or damage caused by the failure of the Fund or
any Third Party Agent to provide it with the information required by Section 8
hereof.
The Administrative Agent shall have no liability and shall be kept
indemnified by the Fund against any loss, liability, claim or expense resulting
from the offer or sale of Shares in violation of any requirement under any
applicable securities laws or regulations including, but not limited to, the
laws of the U.S.
Section 11. INDEMNIFICATION.
The Fund hereby agrees to indemnify and hold harmless the Administrative
Agent from and against any loss, liability, claim or expense (including
reasonable attorney's fees and disbursements but excluding overhead expenses)
suffered or incurred by the Administrative Agent in connection with the
performance of its duties hereunder, including, without limitation, any
liability or expense suffered or incurred as a result of the acts or omissions
of the Fund or any Third Party Agent or Authorized Price Source whose data or
services, including records, reports and other information, the Administrative
Agent must rely upon in performing its duties hereunder or as a result of acting
upon any instructions reasonably believed by it to have been duly authorized by
the Fund; provided, however, that such indemnity shall not apply to any
liability or expense occasioned by or resulting from the fraud, willful default,
gross negligence or willful misconduct of the Administrative Agent in the
performance of its duties hereunder.
The Fund will be entitled to participate at its own expense in the defense,
or, if it so elects, to assume the defense of any suit brought to enforce any
liability subject to the indemnification provided above. In the event the Fund
elects to assume the defense of any such suit and retain counsel, the
Administrative Agent or any of its affiliated persons, named as defendant or
defendants in the suit, may retain additional counsel but shall bear the fees
and
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expenses of such counsel unless (i) the Fund shall have specifically authorized
the retaining of such counsel or (ii) the Administrative Agent shall have
determined in good faith that the retention of such counsel is required as a
result of a conflict of interest.
Section 12. REPRESENTATION AND WARRANTIES OF THE ADMINISTRATIVE AGENT.
The Administrative Agent represents and warrants to the Fund that:
(a) It is a Massachusetts trust company, duly organized, existing and in
good standing under the laws of the Commonwealth of Massachusetts;
(b) It has the corporate power and authority to carry on its business in
Massachusetts and to perform and observe the terms and conditions of
the Agreement;
(c) All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement. This Agreement has been duly
executed on behalf of the Administrative Agent and constitutes its
legal, valid and binding agreement enforceable in accordance with its
terms; and
(d) Its entrance into this Agreement shall not cause a material breach or
be in material conflict with any other agreement or obligation of the
Administrative Agent or any law or regulation applicable to it.
Section 13. REPRESENTATIONS AND WARRANTIES OF THE FUND.
The Fund represents and warrants to the Administrative Agent that:
(a) It is a business trust, duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts;
(b) It has the trust power and authority under applicable laws and by its
Charter Documents to enter into and perform this Agreement;
(c) All requisite proceedings have been taken to authorize it to enter into
and perform this Agreement;
(d) It is an investment company which shall be properly registered under
the 1940 Act prior to the date of the Initial Closing (as such term is
defined in the Placement Memorandum);
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(e) A registration statement under the 1940 Act with respect to the Fund
shall be filed and will be effective and remain effective during the
term of this Agreement. The Fund also warrants to the Administrative
Agent that all necessary filings, if any, under the securities laws of
the jurisdictions in which the Fund offers or sells its Shares will
have been made and will be current during the term of this Agreement;
(f) No legal or administrative proceedings have been instituted or
threatened which would impair the Fund's ability to perform its duties
and obligations under this Agreement;
(g) Its entrance into this Agreement shall not cause a material breach or
be in material conflict with any other agreement or obligation of the
Fund or any law or regulation applicable to it; and
(h) The Fund is authorized to issue Shares, and it will initially offer
such Shares, only in the authorized amounts set forth on Schedule B to
this Agreement, which schedule shall be completed and submitted to the
Administrative Agent as soon as practicable after the date hereof and
in any event prior to the date of the Initial Closing.
Section 14. DATA ACCESS AND PROPRIETARY INFORMATION.
The Fund acknowledges that the data bases, computer programs, screen
formats, report formats, interactive design techniques, and documentation
manuals which may be furnished to the Fund by the Administrative Agent as part
of the Fund's ability to access certain Fund-related data ("CUSTOMER DATA")
maintained by the Administrative Agent on data bases under the control and
ownership of the Administrative Agent ("DATA ACCESS SERVICES") constitute
copyrighted, trade secret, or other proprietary information (collectively,
"PROPRIETARY INFORMATION") of substantial value to the Administrative Agent. The
Fund agrees to treat all Proprietary Information as proprietary to the
Administrative Agent and further agrees that it shall not divulge any
Proprietary Information to any person or organization except as may be provided
hereunder. Without limiting the foregoing, the Fund agrees for itself and its
employees and agents:
(a) to access Customer Data solely from locations as may be designated in
writing by the Administrative Agent and solely in accordance with the
Administrative Agent's applicable user documentation;
(b) to refrain from copying or duplicating in any way the Proprietary
Information, provided, however, that the Fund may copy or duplicate
Proprietary Information to the extent incorporated in any computer
generated print-out or other written
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report containing Customer Data for internal use consistent with this
Agreement but only to the extent necessary to copy or duplicate such
Customer Data;
(c) to refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently obtained,
to inform the Administrative Agent in a timely manner of such fact and
dispose of such information in accordance with the Administrative
Agent's instructions;
(d) to refrain from causing or allowing third-party data acquired hereunder
from being retransmitted to any other computer facility or other
location, except with the prior written consent of the Administrative
Agent;
(e) that the Fund shall have access only to those authorized transactions
agreed upon by the parties; and
(f) to honor all reasonable written requests made by the Administrative
Agent to protect at the Administrative Agent's expense the rights of
the Administrative Agent in Proprietary Information at common law,
under U.S. federal copyright law and under other U.S. federal or state
law.
Notwithstanding anything in this Section 14 to the contrary, the Fund may
disclose Proprietary Information, (i) if and to the extent required to do so by
applicable law or pursuant to an order of a court of competent jurisdiction or
other governmental agency having appropriate authority, in which case the Fund
shall, to the extent possible, provide the Administrative Agent with timely
notice prior to any such disclosure and (ii) if and to the extent such
information has become public other than as a result of a breach of this
Agreement by the Fund or any officer, trustee, employee or agent of the Fund.
Each party shall take reasonable efforts to advise its employees and agents
of their obligations pursuant to this Section 14. The obligations of this
Section shall survive any earlier termination of this Agreement.
The Fund hereby acknowledges that the data and information it may access
from the Administrative Agent utilizing the Data Access Services will be
unaudited and may not be accurate due to inaccurate pricing of securities,
delays of a day or more in updating the Fund's account and other causes for
which the Administrative Agent will not be liable to the Fund.
If the transactions available to the Fund include the ability to originate
electronic instructions to the Administrative Agent in order to (i) effect the
transfer or movement of cash or Shares or (ii) transmit Shareholder information
or other information (such transactions constituting a "COEFI"), then in such
event the Administrative Agent shall be entitled to rely on the validity and
authenticity of such instruction without undertaking any further inquiry as
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long as such instruction is undertaken in conformity with security procedures
established by the Administrative Agent from time to time.
Section 15. SUCCESSOR AGENT.
If a successor Administrative Agent shall be appointed by the Fund, the
Administrative Agent shall upon termination of this Agreement deliver to such
successor agent at the office of the Administrative Agent all books and records
of account of the Fund maintained by the Administrative Agent hereunder. In the
event this Agreement is terminated by either party without the appointment of a
successor agent, the Administrative Agent shall, upon receipt of Proper
Instructions, deliver such properties in accordance with such instructions.
In the event that no written order designating a successor agent or Proper
Instructions shall have been delivered to the Administrative Agent on or before
the effective date of such termination, then the Administrative Agent shall have
the right to deliver to a bank or a trust company of its own selection all
property of the Fund held by the Administrative Agent hereunder, provided that
such bank or trust company or its direct or indirect parent company has
aggregate capital, surplus and undivided profits, as shown by its last published
report, of not less than $200,000,000. Thereafter, and until a successor
administrative agent shall be named by the Fund, such bank or trust company
shall be the successor of the Administrative Agent under this Agreement.
Section 16. TERM OF AGREEMENT.
This Agreement shall be effective from the date first stated above and shall
remain in full force and effect until terminated as hereinafter provided. Either
party may, in its discretion, terminate this Agreement for any reason by giving
the other party at least sixty (60) days prior written notice of termination.
Notwithstanding the foregoing, the Fund may terminate this Agreement with
immediate effect by written notice to the Administrative Agent in the event that
the Initial Closing is cancelled without postponement to a later date.
Section 17. FEES AND EXPENSES.
The Fund agrees to pay the Administrative Agent such reasonable compensation
for its services and expenses as may be agreed upon from time to time in a
written fee schedule approved by the Fund and the Administrative Agent. The fees
shall be accrued daily and billed monthly and shall be due and payable upon
receipt of the invoice. Upon the termination of this Agreement before the end of
any month, the fee for the part of the month before such termination shall be
prorated according to the proportion which such part bears to the full monthly
period and shall be payable upon the date of termination of this Agreement. In
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addition, the Fund shall reimburse the Administrative Agent for its
out-of-pocket costs incurred in connection with this Agreement, in accordance
with the terms of the written fee schedule.
The Fund agrees promptly to reimburse the Administrative Agent for any
equipment and supplies specially ordered by or for the Fund through the
Administrative Agent and for any other expenses not contemplated by this
Agreement that the Administrative Agent may incur on the Fund's behalf at the
Fund's request or with the Fund's consent.
The Fund will bear all expenses that are incurred in its operation and not
specifically assumed by the Administrative Agent. Expenses to be borne by the
Fund, include, but are not limited to: organizational expenses; cost of services
of independent accountants and outside legal and tax counsel (including such
counsel's review of the Fund's registration statement, placement memorandum,
proxy materials, U.S. federal and state tax qualification as a regulated
investment company and other reports and materials prepared by the
Administrative Agent under this Agreement); cost of any services contracted for
by the Fund directly from parties other than the Administrative Agent; cost of
trading operations and brokerage fees, commissions and transfer taxes in
connection with the purchase and sale of securities for the Fund; taxes,
insurance premiums and other fees and expenses applicable to its operation;
costs incidental to any meetings of Shareholders including, but not limited to,
legal and accounting fees, proxy filing fees and the costs of preparation,
printing and mailing of any proxy materials; costs incidental to Board meetings,
including fees and expenses of Board members; the salary and expenses of any
officer, trustee or employee of the Fund; costs incidental to the preparation,
printing and distribution of the Fund's registration statements and any
amendments thereto and Shareholder reports; cost of typesetting and printing of
prospectuses, placement memoranda; cost of preparation and filing of the Fund's
tax returns, if any, Form N-1A and Form N-SAR, and all notices, registrations
and amendments, if any, associated with any applicable U.S. federal and state
tax and securities laws; all applicable registration fees and filing fees, if
any, required under U.S. federal and state securities laws; fidelity bond and
Trustees' and officers' liability insurance; and cost of independent pricing
services used in computing the Fund's net asset value.
Section 18. CONFIDENTIALITY.
The Administrative Agent agrees on behalf of itself and its employees to
treat confidentially all records and other information related to the Fund,
except where required to be disclosed by law or where the Administrative Agent
has received the prior written consent of the Fund, which consent shall not be
unreasonably withheld.
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Section 19. NOTICES.
All notices shall be in writing and shall be deemed given when delivered in
person, by facsimile, by overnight delivery through a commercial courier
service, or by registered or certified mail, return receipt requested. Notices
shall be addressed to each party at its address set forth below, or such other
address as the recipient may have specified by earlier notice to the sender.
If to the Administrative
Agent: STATE STREET BANK AND TRUST COMPANY
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, XX
Attention: Xxxxxx X. Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
With a copy to: STATE STREET FUND SERVICES TORONTO INC.
000 Xxxx Xxxxxx, Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Attention: Xxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
If to the Fund: OLD MUTUAL EQUITY GROWTH ASSETS SOUTH AFRICA FUND
Richmond Xxxxx
00 Xxx-xx-Xxxxx Xxxx
Xxxxxxxx, XX 00
Xxxxxxx
Xxxxxxxxx: J.C.R. Xxxxxx
Telephone: 000-000-0000
Telecopy: 809-295-4720
Section 20. ASSIGNMENT; SUCCESSORS.
This Agreement shall not be assigned by either party without the prior
written consent of the other party, except that either party may assign its
rights and obligations hereunder to a party controlling, controlled by, or under
common control with such party, provided that any such assignment does not
prejudice the tax status or operation of the Fund.
-15-
16
Section 21. ENTIRE AGREEMENT.
This Agreement (including all schedules and attachments hereto and the
separate written fee schedule) constitutes the entire Agreement between the
parties with respect to the subject matter hereof.
Section 22. AMENDMENTS.
No amendment to this Agreement shall be effective unless it is in writing
and signed by a duly authorized representative of each party. The term
"Agreement", as used herein, includes all schedules and attachments hereto and
any future written amendments, modifications, or supplements made in accordance
herewith.
Section 23. HEADINGS NOT CONTROLLING.
Headings used in this Agreement are for reference purposes only and shall
not be deemed a part of this Agreement.
Section 24. SURVIVAL.
All provisions regarding indemnification, warranty, liability and limits
thereon shall survive following the expiration or termination of this Agreement.
Section 25. SEVERABILITY.
In the event any provision of this Agreement is held illegal, void or
unenforceable, the balance shall remain in effect.
Section 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 but one and the same Agreement.
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17
Section 27. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts, without regard for any choice of law
rules that would require application of the laws of another jurisdiction.
Section 28. LIMITATION ON LIABILITY OF TRUSTEES.
This Agreement is executed and made by the Trustees of the Fund not
individually, but as trustees under the Declaration of Trust of the Fund dated
as of September 1, 1995, and the obligations of this Agreement are not binding
upon any of such Trustees or upon any of the Shareholders of the Fund
individually, but bind only the trust estate of the Fund.
-17-
18
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first written above.
STATE STREET BANK AND TRUST COMPANY
By: X.X. Xxxxxxx
----------------------------------
Its: Senior Vice President
OLD MUTUAL EQUITY GROWTH ASSETS SOUTH
AFRICA FUND
By: Xxxxxxx Xxxxxxx
----------------------------------
Its: Treasurer
19
EXHIBIT A
ADMINISTRATIVE SERVICES AGREEMENT
October 23, 1995
by and between
OLD MUTUAL EQUITY GROWTH ASSETS SOUTH AFRICA FUND
(the "FUND")
and
STATE STREET BANK AND TRUST COMPANY
(the "ADMINISTRATIVE AGENT")
Pursuant to the terms of the Administrative Services Agreement, the Fund has
directed the Administrative Agent to, inter alia, calculate the net asset value
of the Fund and to perform certain other accounting services in accordance with
the Constitutive Documents of the Fund (as such term is defined therein). The
Fund hereby authorizes and instructs the Administrative Agent to utilize the
pricing sources specified on the attached forms as sources for securities prices
in calculating the net asset value of the Fund and acknowledges and agrees that
the Administrative Agent shall have no liability for any incorrect data provided
by pricing sources selected by the Fund or otherwise authorized by Proper
Instructions (as such term is defined in the Administrative Services Agreement),
except as may arise from the Administrative Agent's lack of reasonable care in
performing the agreed-upon tolerance checks as to the data furnished and
calculating the net asset value of the Fund in accordance with the data
furnished and the Administrative Agent's performance of the agreed-upon
tolerance checks.
OLD MUTUAL EQUITY GROWTH ASSETS
SOUTH AFRICA FUND
By: Xxxxxxx Xxxxxxx
------------------------------
Title: Treasurer
Date:
----------------------------
00
XXXXX XXXXXX BANK AND TRUST COMPANY
PRICE SOURCE AUTHORIZATION
FUND: __________________________________ SIGNATURE: ______________________
SECURITY TELEKURS OPTIONS PRICE (3) (2) (1) (1)
TYPE NYSE NASDAQ REPORTING AUTHORITY MANUAL BACK-UP TOLERANCE
AMEX BID MEAN LS/BID LS/MEAN TELEKURS LS BID LS/MEAN QUOTES SOURCE INDEX PERCENTAGE
I. LISTED EQUITIES
II. OTC EQUITIES
III. FOREIGN EQUITIES
IV. EQUITY OPTIONS
V. FUTURES N/A
INSTRUCTIONS: For each security type, allowed by the Fund prospectus,
please indicate the primary price source and a back-up source to be used in
calculating Net Asset Value for the Fund identified above. Also, please indicate
a published market index and tolerance range (in terms of percent) to be used
for reasonability testing. If you do not wish to use a published index please
indicate N/A but do not leave blank.
(1) * INDEX/TOLERANCE CHECK: The price movement for a particular security is
compared to the index movement. If the security price movement exceeds the index
movement by more than the percentage authorized on this form, then the security
price will be verified using the back-up source authorized. The index and
tolerance information authorized here will be the basis for this reasonability
test.
(2) BACK-UP SOURCE: The following sources are available for back-up, price
verification and historical price and yield information: Bloomberg, Bridge,
Reuters, and Telerate. Please do not leave blank.
(3) MANUAL QUOTES AND PRIVATE PLACEMENTS: Please specify the source for private
placements or manual quotes as necessary. See page 3 to list additional
information if needed.
Page 1 of 3
21
STATE STREET BANK AND TRUST COMPANY
PRICE SOURCE AUTHORIZATION
SECURITY TYPE XXXXXXX INTERACTIVE
XXXXX STANDARD XXXXXX DATA XXXXX (3) (2) (1) (1)
CAPITAL & POORS DATA SERVICES INFORMATION IDC/ MANUAL BACK-UP TOLERANCE
MARKETS MEAN BID MEAN BID MEAN BID SYSTEMS EXTEL QUOTES QUOTES INDEX PERCENTAGE
VI. LISTED BONDS
IS LAST SALE
REQUIRED
WHEN
AVAILABLE
YES_____
NO______
VII. CORPORATE
BONDS
VIII. U.S.
GOVERNMENT
OBLIGATIONS
IX. MORTAGE -
BACKED
SECURITIES
X. MUNICIPAL
BONDS
XI. FIXED INCOME
OPTIONS
XII. FOREIGN BONDS
Page 2 of 3
22
STATE STREET BANK AND TRUST COMPANY
PRICE SOURCE AUTHORIZATION
XII. Private Placements and Other Manual Quotes Information
SECURITY TYPE ADVISOR BROKER OTHER ADDITIONAL INFORMATION:
CONTACT NAME, TELEPHONE NUMBER
INSTRUCTIONS: For all securities types which require manual quotes, please list
the source of the quotes and any additional information needed to obtain these
quotes.
Page 3 of 3
23
SCHEDULE A
REQUIRED INFORMATION RESPONSIBLE PARTY
-------------------- -----------------
Portfolio Trade Authorizations Fund
Currency Transactions Fund
Cash Transaction Report Custodian
Portfolio Prices Third Party Vendors/Fund
Exchange Rates Third Party Vendors/Fund
Dividend/Distribution Schedule Fund
Dividend/Distribution Declaration Fund
Corporate Actions Third Party Vendors/Custodian
Service Provider Fee Schedules Fund
Authorized Expense Budget Fund
Amortization Policy Fund
Accounting Policy/Complex Investments Fund
Audit Management Letter Auditor
Annual Shareholder Letter Fund
Annual/Semi-Annual Reports Fund
24
SCHEDULE B
[Authorized Shares]
