Exhibit (9.3)
FORM OF RECORDKEEPING AGREEMENT
This AGREEMENT is made effective the ____day of_______________, 2001, by
and between STATE STREET BANK AND TRUST COMPANY, a trust company chartered under
the laws of the Commonwealth of Massachusetts, having its principal office and
place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("State
Street") and [Name of Entity] (the "Fund"), with its principal office and place
of business at 0000 X. Xxxxxxxxxx Xxxxx Xxxx, Xxxxxxxxxx, XX 00000.
WITNESSETH:
WHEREAS, the Fund desires to appoint State Street as its agent to perform
certain investment accounting and recordkeeping functions for the assets of the
Fund's investment portfolio or portfolios (each a "Portfolio", and collectively
the "Portfolios"); and
WHEREAS, State Street is willing to accept such appointment on the terms
and conditions hereinafter set forth;
NOW THEREFORE, for and in consideration of the mutual promises contained
herein, the parties hereto, intending to be legally bound, mutually covenant and
agree as follows:
1. APPOINTMENT OF AGENT. The Fund hereby constitutes and appoints State
Street as its agent to perform certain accounting and recordkeeping
functions relating to portfolio transactions required of a duly registered
investment company under Rule 31a of the Investment Company Act of 1940,
as amended (the "1940 Act") and to calculate the net asset value of the
Portfolios.
2. REPRESENTATIONS AND WARRANTIES.
A. The Fund hereby represents, warrants and acknowledges to State
Street:
1. That it is a trust duly organized and existing and in good
standing under the laws of its state of organization, and that
it is registered under the 1940 Act; and
2. That it has the requisite power and authority under applicable
law and its declaration of trust to enter into this Agreement;
it has taken all requisite action necessary to appoint State
Street as investment accounting and recordkeeping agent; this
Agreement has been duly executed and delivered by the Fund;
and this Agreement constitutes a legal, valid and binding
obligation of the Fund, enforceable in accordance with its
terms.
B. State Street hereby represents, warrants and acknowledges to the
Fund:
1. That it is a trust company duly organized and existing and in
good standing under the laws of the Commonwealth of
Massachusetts; and
2. That it has the requisite power and authority under applicable
law, its charter and its bylaws to enter into and perform this
Agreement; this Agreement has been duly executed and delivered
by State Street; and this Agreement constitutes a legal, valid
and binding obligation of State Street, enforceable in
accordance with its terms.
3. DUTIES AND RESPONSIBILITIES OF THE PARTIES.
A. Delivery of Accounts and Records. The Fund will turn over or cause
to be turned over to State Street all accounts and records needed by
State Street to perform its duties and responsibilities hereunder
fully and properly. State Street may rely conclusively on the
completeness and correctness of such accounts and records.
B. Accounts and Records. State Street will prepare and maintain, under
the direction of and as interpreted by the Fund, the Fund's or
Portfolio's accountants and/or other advisors, in complete, accurate
and current form such accounts and records: (1) required to be
maintained by the Fund with respect to portfolio transactions under
Section 31(a) of the 1940 Act and the rules and regulations from
time to time adopted thereunder; (2) required as a basis for
calculation of each Portfolio's net asset value; and (3) as
otherwise agreed upon by the parties. The Fund will advise State
Street in writing of all applicable record retention requirements,
other than those set forth in the 1940 Act. State Street will
preserve such accounts and records in the manner and for the periods
prescribed in the 1940 Act or for such longer period as is agreed
upon by the parties. The Fund will furnish, in writing or its
electronic or digital equivalent, accurate and timely information
needed by State Street to complete such accounts and records when
such information is not readily available from generally accepted
securities industry services or publications.
C. Accounts and Records Property of the Fund. State Street acknowledges
that all of the accounts and records maintained by State Street
pursuant hereto are the property of the Fund, and will be made
available to the Fund for inspection or reproduction within a
reasonable period of time, upon demand. State Street will assist the
Fund's independent auditors, or upon the prior written approval of
the Fund, or upon demand, any regulatory body, in any requested
review of the Fund's accounts and records but the Fund will
reimburse State Street for all expenses and employee time invested
in any such review outside of routine and normal periodic reviews.
Upon receipt from the Fund of the necessary information or
instructions, State Street will supply information from the books
and records it maintains for the Fund that the Fund may reasonably
request for tax returns, questionnaires, periodic reports to
shareholders and such other reports and information requests as the
Fund and State Street may agree upon from time to time.
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D. Adoption of Procedures. State Street and the Fund may from time to
time adopt such procedures as they agree upon, and State Street may
conclusively assume that no procedure approved or directed by the
Fund, the Fund's or Portfolio's accountants or other advisors
conflicts with or violates any requirements of the prospectus,
declaration of trust, any applicable law, rule or regulation, or any
order, decree or agreement by which the Fund may be bound. The Fund
will be responsible for notifying State Street of any changes in
statutes, regulations, rules, requirements or policies which may
impact State Street's responsibilities or procedures under this
Agreement.
E. Valuation of Assets. State Street will value the Assets in
accordance with the Fund's Instructions utilizing the pricing
sources designated by the Fund ("Pricing Sources"). In the event
that the Fund specifies Reuters America, Inc., it will enter into
the Agreement attached hereto as Exhibit A. State Street will
calculate each Portfolio's net asset value in accordance with the
Portfolio's prospectus.
4. INSTRUCTIONS.
A. The term "Instructions", as used herein, means written (including
telecopied, telexed, or electronically transmitted) or oral
instructions which State Street reasonably believes were given by a
designated representative of the Fund. The Fund will deliver to
State Street, prior to delivery of any Assets to State Street and
thereafter from time to time as changes therein are necessary,
written Instructions naming one or more designated representatives
to give Instructions in the name and on behalf of the Fund, which
Instructions may be received and accepted by State Street as
conclusive evidence of the authority of any designated
representative to act for the Fund and may be considered to be in
full force and effect until receipt by State Street of notice to the
contrary. Unless such written Instructions delegating authority to
any person to give Instructions specifically limit such authority to
specific matters or require that the approval of anyone else will
first have been obtained, State Street will be under no obligation
to inquire into the right of such person, acting alone, to give any
Instructions whatsoever. If the Fund fails to provide State Street
any such Instructions naming designated representatives, any
Instructions received by State Street from a person reasonably
believed to be an appropriate representative of the Fund will
constitute valid and proper Instructions hereunder. The term
"designated representative" may include the Fund's or a Portfolio's
employees and agents, including investment managers and their
employees.
B. No later than the next business day immediately following each oral
Instruction, the Fund will send State Street written confirmation of
such oral Instruction. At State Street's sole discretion, State
Street may record on tape, or otherwise, any oral Instruction
whether given in person or via telephone, each such recording
identifying the date and the time of the beginning and ending of
such oral Instruction.
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C. The Fund will provide upon State Street's request a certificate
signed by an officer or designated representative of the Fund, as
conclusive proof of any fact or matter required to be ascertained
from the Fund hereunder. The Fund will also provide State Street
Instructions with respect to any matter concerning this Agreement
requested by State Street. If State Street reasonably believes that
it could not prudently act according to the Instructions, or the
instruction or advice of the Fund's or a Portfolio's accountants or
counsel, it may in its discretion, with notice to the Fund, not act
according to such Instructions.
5. LIMITATION OF LIABILITY OF STATE STREET. State Street is not responsible
or liable for, and the Fund will indemnify and hold State Street harmless
from and against, any and all costs, expenses, losses, damages, charges,
counsel fees (including, without limitation, disbursements and the
allocable cost of in-house counsel), payments and liabilities which may be
asserted against or incurred by State Street or for which State Street may
be held to be liable, arising out of or attributable to:
A. State Street's action or failure to act pursuant hereto; provided
that State Street has acted in good faith and with reasonable care;
and provided further, that in no event is State Street liable for
consequential, special, or punitive damages;
B. State Street's payment of money as requested by the Fund, or the
taking of any action which might make it or its nominee liable for
payment of monies or in any other way; provided, however, that
nothing herein obligates State Street to take any such action or
expend its own monies except in its sole discretion;
C. State Street's action or failure to act hereunder upon any
Instruction, advice, notice, request, consent, certificate or other
instrument or paper appearing to it to be genuine and to have been
properly executed, including any Instructions, communications, data
or other information received by State Street by means of the
Systems, as hereinafter defined, or any electronic system of
communication;
D. State Street's action or failure to act in good faith reliance on
the advice or opinion of counsel for the Fund or of its own counsel
with respect to questions or matters of law, which advice or opinion
may be obtained by State Street at the expense of the Fund, or on
the Instruction, advice or statements of any officer or employee of
the Fund, or the Fund's accountants or other authorized individuals,
and other persons believed by it in good faith to be expert in
matters upon which they are consulted;
E. Any error, omission, inaccuracy or other deficiency in any
Portfolio's accounts and records or other information provided to
State Street by or on behalf of a Portfolio, including the accuracy
of the prices quoted by the Pricing Sources or for the information
supplied by the Fund to value the Assets, or the failure of the Fund
to provide, or provide in a timely manner, any accounts, records, or
information needed by State Street to perform its duties hereunder;
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F. The Fund's refusal or failure to comply with the terms hereof
(including without limitation the Fund's failure to pay or reimburse
State Street under Section 5 hereof), the Fund's negligence or
willful misconduct, or the failure of any representation or warranty
of the Fund hereunder to be and remain true and correct in all
respects at all times;
G. The use or misuse, whether authorized or unauthorized, of the
Systems or any electronic system of communication used hereunder, by
the Fund or by any person who acquires access to the Systems or such
other systems through the terminal device, passwords, access
instructions or other means of access to such Systems or such other
system which are utilized by, assigned to or otherwise made
available to the Fund, except to the extent attributable to any
negligence or willful misconduct by State Street;
H. Loss occasioned by the acts, omissions, defaults or insolvency of
any broker, bank, trust company, securities system or any other
person with whom State Street may deal; and
I. The failure or delay in performance of its obligations hereunder, or
those of any entity for which it is responsible hereunder, arising
out of or caused, directly or indirectly, by circumstances beyond
the affected entity's reasonable control, including, without
limitation: any interruption, loss or malfunction of any utility,
transportation, computer (hardware or software) or communication
service; inability to obtain labor, material, equipment or
transportation, or a delay in mails; governmental or exchange
action, statute, ordinance, rulings, regulations or direction; war,
strike, riot, emergency, civil disturbance, terrorism, vandalism,
explosions, labor disputes, freezes, floods, fires, tornadoes, acts
of God or public enemy, revolutions, or insurrection.
6. COMPENSATION. In consideration for its services hereunder, the Fund will
pay to State Street the compensation set forth in a separate fee schedule,
incorporated herein by reference, to be agreed to by the Fund and State
Street from time to time, and, upon demand, reimbursement for State
Street's cash disbursements and reasonable out-of-pocket costs and
expenses, including attorney's fees and disbursements, incurred by State
Street in connection with the performance of services hereunder.
7. TERM AND TERMINATION. The initial term of this Agreement is for a period
of one (1) year. Thereafter, either the Fund or State Street may terminate
this Agreement by notice in writing, delivered or mailed, postage prepaid,
to the other party and received not less than ninety (90) days prior to
the date upon which such termination will take effect. Upon termination
hereof:
A. The Fund will pay State Street its fees and compensation due
hereunder and its reimbursable disbursements, costs and expenses
paid or incurred to such date;
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B. The Fund will designate a successor (which may be the Fund) by
Instruction to State Street; and
C. State Street will, upon payment of all sums due to State Street from
the Fund hereunder or otherwise, deliver all accounts and records
and other properties of the Fund to the successor, or, if none, to
the Fund, at State Street's office.
In the event that accounts, records or other properties remain in the
possession of State Street after the date of termination hereof for any
reason other than State Street's failure to deliver the same, State Street
is entitled to compensation as provided in the then-current fee schedule
for its services during such period, and the provisions hereof relating to
the duties and obligations of State Street will remain in full force and
effect.
8. NOTICES. Notices, requests, instructions and other writings addressed to
the Fund at the address set forth above, or at such other address as the
Fund may have designated to State Street in writing, will be deemed to
have been properly given to the Fund hereunder. Notices, requests,
Instructions and other writings addressed to State Street at State Street
Kansas City, 801 Pennsylvania, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention:
Investment Accounting Department, or to such other address as it may have
designated to the Fund in writing, will be deemed to have been properly
given to State Street hereunder.
9. THE SYSTEMS; CONFIDENTIALITY.
A. If State Street provides the Fund direct access to the computerized
investment portfolio recordkeeping and accounting systems used by
State Street ("Systems") or if State Street and the Fund agree to
utilize any electronic system of communication, the Fund agrees to
implement and enforce appropriate security policies and procedures
to prevent unauthorized or improper access to or use of the Systems
or such other system.
B. The Fund will preserve the confidentiality of the Systems and the
tapes, books, reference manuals, instructions, records, programs,
documentation and information of, and other materials relevant to,
the Systems and the business of State Street or its affiliates
("Confidential Information"). The Fund agrees that it will not
voluntarily disclose any such Confidential Information to any other
person other than its own employees who reasonably have a need to
know such information pursuant hereto. The Fund will return all such
Confidential Information to State Street upon termination or
expiration hereof.
C. The Fund has been informed that the Systems are owned by or licensed
for use by State Street and its affiliates from one or more third
parties ("Licensors"), and the Fund acknowledges that State Street
and Licensors have proprietary rights in and to the Systems and all
other State Street or Licensor programs, code, techniques, know-how,
data bases, supporting documentation, data formats, and procedures,
including without limitation any changes or modifications made at
the request or expense or both of the Fund (collectively, the
"Protected Information"). The Fund acknowledges
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that the Protected Information constitutes confidential material and
trade secrets of State Street and Licensors. The Fund will preserve
the confidentiality of the Protected Information, and the Fund
hereby acknowledges that any unauthorized use, misuse, disclosure or
taking of Protected Information, residing or existing internal or
external to a computer, computer system, or computer network, or the
knowing and unauthorized accessing or causing to be accessed of any
computer, computer system, or computer network, may be subject to
civil liabilities and criminal penalties under applicable law. The
Fund will so inform employees and agents who have access to the
Protected Information or to any computer equipment capable of
accessing the same. Licensors are intended to be and are third party
beneficiaries of the Fund's obligations and undertakings contained
in this Section.
D. The Fund hereby represents and warrants to State Street that it has
determined to its satisfaction that the Systems are appropriate and
suitable for its use. THE SYSTEMS ARE PROVIDED ON AN AS IS, AS
AVAILABLE BASIS. STATE STREET EXPRESSLY DISCLAIMS ALL WARRANTIES
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EXCEPT THOSE
WARRANTIES EXPRESSLY STATED HEREIN.
10. MULTIPLE PORTFOLIOS. If the Fund is comprised of more than one Portfolio,
the following provisions apply:
A. Each Portfolio will be regarded for all purposes hereunder as a
separate party apart from each other Portfolio. Unless the context
otherwise requires, with respect to every transaction covered
hereby, every reference herein to the Fund is deemed to relate
solely to the particular Portfolio to which such transaction
relates. Under no circumstances will the rights, obligations or
remedies with respect to a particular Portfolio constitute a right,
obligation or remedy applicable to any other Portfolio. The use of
this single document to memorialize the separate agreement as to
each Portfolio is understood to be for clerical convenience only and
will not constitute any basis for joining the Portfolios for any
reason.
B. The Fund may appoint State Street as its investment accounting and
recordkeeping agent for additional Portfolios from time to time by
written notice, provided that State Street consents to such
addition. Rates or charges for each additional Portfolio will be as
agreed upon by State Street and the Fund in writing.
11. MISCELLANEOUS.
A. This Agreement will be construed according to, and the rights and
liabilities of the parties hereto will be governed by, the laws of
the commonwealth of Massachusetts, without reference to the choice
of laws principles thereof.
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B. All terms and provisions hereof will be binding upon, inure to the
benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns.
C. The representations and warranties, the indemnifications extended
hereunder, and the provisions of Section 9 hereof are intended to
and will continue after and survive the expiration, termination or
cancellation hereof.
D. No provisions hereof may be amended or modified in any manner except
by a written agreement properly authorized and executed by each
party hereto.
E. The failure of either party to insist upon the performance of any
terms or conditions hereof or to enforce any rights resulting from
any breach of any of the terms or conditions hereof, including the
payment of damages, will not be construed as a continuing or
permanent waiver of any such terms, conditions, rights or
privileges, but the same will continue and remain in full force and
effect as if no such forbearance or waiver had occurred. No waiver,
release or discharge of any party's rights hereunder will be
effective unless contained in a written instrument signed by the
party sought to be charged.
F. The captions herein are included for convenience of reference only,
and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
G. This Agreement may be executed in two or more counterparts, each of
which is deemed an original but all of which together constitute one
and the same instrument.
H. If any provision hereof is determined to be invalid, illegal, in
conflict with any law or otherwise unenforceable, the remaining
provisions hereof will be considered severable and will not be
affected thereby, and every remaining provision hereof will remain
in full force and effect and will remain enforceable to the fullest
extent permitted by applicable law.
I. The benefits of this Agreement may not be assigned by either party
nor may either party delegate all or a portion of its duties
hereunder without the prior written consent of the other party.
Notwithstanding the foregoing, the Fund agrees that State Street may
delegate all or a portion of its duties to an affiliate of State
Street, provided that such delegation will not reduce the
obligations of State Street under this Agreement.
J. Neither the execution nor performance hereof will be deemed to
create a partnership or joint venture by and between State Street
and the Fund or any Portfolio.
K. Except as specifically provided herein, this Agreement does not in
any way affect any other agreements entered into among the parties
hereto and any actions taken or omitted by either party hereunder
will not affect any rights or obligations of the other party
hereunder.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized officers.
STATE STREET BANK AND TRUST AETNA SERIES FUND, INC.
COMPANY
By: By:
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Title: Title:
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EXHIBIT A--REUTERS DATA SERVICE AGREEMENT
The undersigned acknowledges and agrees that some of the data being provided in
the service by State Street to the Fund contains information supplied to State
Street by Reuters America Inc. ("Reuters") (the "Data"). The Fund agrees that:
(i) although Reuters makes every effort to ensure the accuracy and
reliability of the Data, the Fund acknowledges that Reuters, its
employees, agents, contractors, subcontractors, contributors and
third party providers will not be liable for any loss, cost or
damage suffered or incurred by the Fund arising out of any fault,
interruption or delays in the Data or out of any inaccuracies,
errors or omissions in the Data however such faults, interruptions,
delays, inaccuracies, errors or omissions arise, unless due to the
gross negligence or willful misconduct of Reuters;
(ii) it will not transfer, transmit, recirculate by digital or analogue
means, republish or resell all or part of the Data; and
(iii) certain parts of the Data are proprietary and unique to Reuters.
The undersigned further agrees that the benefit of this clause will inure to the
benefit of Reuters.
AETNA SERIES FUND, INC.
By:
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Title:
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