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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 SOUTH AFRICA EQUITY TRUST, a Massachusetts common law trust
(the "FUND"), and STATE STREET CAYMAN TRUST COMPANY, LTD., a Cayman Islands
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 or supplemented 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") (as
the same may be amended or supplemented from time to time, the
"Registration Statement" 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 of Trustees") authorizing (1) the Fund to
enter into this Agreement and (2) certain individuals on behalf
of the Fund (a) to give instructions to the
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Administrative Agent pursuant to this Agreement and (b) to
sign checks and pay expenses on behalf of the Fund;
(d) A copy of the investment advisory agreement between the Fund
and its investment adviser; and
(e) Such other certificates, documents or opinions which the
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 book capital account balances;
(e) Calculate and publish daily net asset value; and
(f) 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 designed 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 beneficial interests (the "Beneficial Interests") 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
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Constitutive Documents and further in accordance with written procedures
adopted by the Fund from time to time.
In the foregoing capacity, the Administrative Agent shall perform the
following services:
(a) In accordance with procedures set forth in the Constitutive
Documents 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
Beneficial Interests 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 and increase
Beneficial Interests and hold such Beneficial Interests
in the appropriate Interestholder account;
(iii) Receive for acceptance redemption and decrease requests
and redemption decrease 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
Interestholders and 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 or decrease, pay over or cause to be paid
over in the appropriate manner such monies as instructed
by the redeeming Interestholders;
(vi) Subject to the Charter Documents of the Fund, effect
transfers of Beneficial Interests by the registered
owners thereof upon receipt of appropriate instructions;
(vii) Prepare and transmit payments for distributions declared
by the Fund;
(viii) 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;
(ix) Maintain records of account for and advise the Fund and
its Interestholders as to the foregoing; and
(x) Maintain the Register of Interestholders of the Fund in
accordance with applicable law and the Charter Documents
of the Fund; record issuances, increases, decreases and
redemptions of Beneficial Interests of the Fund and
maintain a record of the total number of Beneficial
Interests of the Fund which are authorized (based upon
data provided to it by the Fund) and issued and
outstanding and the percentage interests of the Fund
represented by such Beneficial Interests. The
Administrative Agent shall also provide the Fund and its
designated agents on a regular basis with a record of
the total number of Beneficial Interests which are
authorized and issued and outstanding and shall have no
obligation, when recording the issuance of Beneficial
Interests, to monitor the issuance of such Beneficial
Interests or to take cognizance of any laws relating to
the issue or sale of such Beneficial Interests, 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 Interestholder accounts, preparing
Interestholder meeting lists, mailing proxies, mailing
Interestholder reports to current Interestholders and
prospective investors, preparing and mailing confirmation forms
and statements of account to Interestholders for all purchases
and redemptions of Beneficial Interests and other confirmable
transactions in Interestholder accounts, preparing and mailing
activity statements for Interestholders, and providing
Interestholder account information. All proxies, reports,
confirmation forms, statements of account, activity statements
and other materials will be mailed by the Administrative Agent
from locations outside of The United States of America (the
"U.S.").
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.
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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 investment
adviser, 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:
(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 of Trustees;
(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 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 Interestholders, and arrange
for the printing and dissemination of such reports and
communications to Interestholders;
(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 investment adviser, Custodian, legal counsel or
independent accountants;
(h) Make such reports and recommendations to the Board of Trustees
concerning the performance of the independent accountants as the
Board may reasonably request;
(i) Make such reports and recommendations to the Board of Trustees
concerning the performance and fees of the Fund's Custodian as
the Board may reasonably request or deems appropriate;
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(j) Oversee and review calculations of fees paid to the Fund's
investment adviser and Custodian;
(k) Consult with the Fund's officers, independent accountants,
legal counsel and Custodian in establishing the accounting
policies of the Fund;
(l) Review implementation of any dividend reinvestment programs
authorized by the Board of Trustees;
(m) Respond to, or refer to the Fund's officers, Interestholder
inquiries relating to the Fund;
(n) Provide such periodic testing of portfolios as may be mutually
agreed upon to assist the Fund's investment adviser in complying
with the mandatory qualification requirements of the Internal
Revenue Code of 1986, as amended (the "Code") and the require-
ments of the 1940 Act;
(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 of Trustees 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 sur-
rendered in connection with the termination of this Agreement or otherwise
upon written request.
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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.
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 Old Mutual Asset Managers (Bermuda)
Limited (the "Investment Adviser") or any person duly authorized by them 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 and the Investment Adviser shall each 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 or the
Investment Adviser, as the case may be, 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 or the
Investment Adviser, as the case may be. The Fund shall give,
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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 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
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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 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 Beneficial Interests 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,
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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 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 Cayman Islands trust company, duly organized, existing
and in good standing under the laws of the Cayman Islands;
(b) It has the corporate power and authority to carry on its business
in the Cayman Islands 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 common law trust, duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts;
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(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 Registration Statement);
(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 Beneficial Interests 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; and
(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.
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;
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(b) to refrain from copying or duplicating in any way the
Proprietary Information, provided, however, that the Fund and
the Investment Adviser may copy or duplicate Proprietary
Information to the extent incorporated in any computer generated
print-out or other written 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.
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.
Notwithstanding anything in this Section 14 to the contrary, the Fund
and the Investment Adviser 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 or the Investment Adviser, as the case may
be, 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 the Investment Adviser or any officer, director,
trustee, employee or agent of either of them.
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.
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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 Beneficial Interests or (ii)
transmit Interestholder 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 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 is organized and located outside of
the U.S. and that it 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.
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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
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, 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; investment advisory fees; taxes,
insurance premiums and other fees and expenses applicable to its operation;
costs incidental to any meetings of Interestholders 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 of
Trustees 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 Interestholder reports; 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.
-14-
15
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 CAYMAN TRUST COMPANY, LTD.
X.X. Xxx 0000 XX
Xxxxx Xxxxxx, Xxxxxx Xxxxxxx
B.W.I.
Attention: Xxxxxxxxxx Xxxxxxx
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 SOUTH AFRICA EQUITY TRUST
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.
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 individually.
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 CAYMAN TRUST COMPANY, LTD.
By: X.X. Xxxxxxx
------------------------------------
Its: Authorized Signatory
OLD MUTUAL SOUTH AFRICA EQUITY TRUST
By: Xxxxxxx Xxxxxxx
------------------------------------
Its: Treasurer
19
EXHIBIT A
ADMINISTRATIVE SERVICES AGREEMENT
October 23, 1995
by and between
OLD MUTUAL SOUTH AFRICA EQUITY TRUST
(the "Fund")
and
STATE STREET CAYMAN TRUST COMPANY, LTD.
(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 SOUTH AFRICA EQUITY TRUST
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. MORTGAGE-
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
---------------------------------------------------------------------------------------------
ADDITIONAL INFORMATION:
SECURITY TYPE ADVISOR BROKER OTHER 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 Investment Adviser
Currency Transactions Investment Adviser
Cash Transaction Report Custodian
Portfolio Prices Third Party Vendors/Investment Adviser
Exchange Rates Third Party Vendors/Investment Adviser
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 Interestholder Letter Fund
Annual/Semi-Annual Reports Fund
24
SCHEDULE B
[Authorized Shares]
