EX-99.h.4
EXECUTION COPY
INVESTMENT ADMINISTRATION SERVICES AGREEMENT
THIS AGREEMENT is made as of March 17, 2008 by and between ▇▇▇▇▇▇ GLOBAL
INVESTMENTS, INC. a Delaware corporation with its principal office at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Initial Manager"), and each
Affiliate of the Initial Manager which may from time to time become a party to
this Agreement by execution of an Instrument of Accession substantially in the
form attached hereto as Exhibit 1 (the Initial Manager and each such Affiliate
referred to individually as, a "Manager" and collectively as, the "Managers")
and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company with its
principal office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ of America ("State Street"). Each Manager and State Street is hereinafter
referred to individually as a "Party" and collectively as the "Parties".
WHEREAS, each Manager acts as investment manager of separate accounts,
collective investment funds, pension and insurance funds and/or other investment
accounts on behalf of individual and institutional investors; and
WHEREAS, each Manager desires to retain State Street to provide the investment
administration services specified herein and State Street is willing to furnish
such services on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants 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:
1. INTERPRETATION
1.1. In this Agreement:
"Affiliate" means, with respect to any person, any other person
Controlling, Controlled by, or under common Control with,
such person at the time in question.
"Agreement" means this Agreement, including the Schedules and
Exhibits hereto and all Instruments of Accession, as the
same may be amended from time to time by written agreement
of the Parties.
"Authentication means the use of security codes, passwords, tested
Procedures" communications or other authentication procedures as may be
agreed upon in writing by State Street and a Manager from
time to time for purposes of enabling State Street to verify
that purported Proper Instructions have been originated by
an Authorized Person.
"Authorized Data means Third Party sources of data and information used by
Sources" State Street for the provision of the Services, including,
without limitation, sources of securities
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prices, currency exchange rates, interest rates, corporate
actions, income and tax data, credit ratings and other
market data and information.
"Authorized means a designee of a Manager that (i) has been approved by
Designee" State Street to use the Data Access Services and (ii) has
agreed in writing to be bound by the provisions of Section 5
hereof and Section 6 hereof (as applicable) or by terms and
conditions of use no less restrictive than those set forth
in Section 5 and Section 6 (as applicable).
"Authorized means any person authorized by a Manager in writing to give
Person" Proper Instructions to State Street and in respect of whom
State Street has not (i) received written notice from the
Manager that such authorization has been revoked and (ii)
been afforded a reasonable opportunity to act thereon.
"Change" has the meaning set forth in sub-section 4.1 hereof.
"Change Request" has the meaning set forth in sub-section 4.1 hereof.
"CIS Policy" has the meaning set forth in sub-section 5.6 hereof.
"Claim" means any threatened or actual claim, demand, action, suit
or other judicial proceeding asserted or brought by a Third
Party.
"Confidential means, as between State Street and a Manager, all
Information" information relating to, or provided in connection with,
this Agreement and the relevant Service Level Agreement and
all information provided by one Party to the other regarding
itself and its Affiliates, including without limitation
information regarding its business, financial affairs,
customers (including, without limitation, Customer Data),
operations or otherwise. The term "Confidential Information"
shall not include any information that (i) is publicly
available at the time it is provided or thereafter becomes
publicly available other than as a result of a breach of
this Agreement, (ii) was demonstrably known to a Party
(without an obligation of confidentiality) prior to its
disclosure hereunder, (iii) is independently developed by a
Party without recourse to Confidential Information of the
other Party, or (iv) is rightfully obtained on a
non-confidential basis from a Third Party source provided
that such source is not known to
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be bound by an obligation of confidentiality.
Notwithstanding the foregoing sentence, Customer Data shall
be and remain Confidential Information.
"Control" and its derivatives "Controlled" and "Controlling" mean,
with regard to any person: (i) the legal or beneficial
ownership, directly or indirectly, of fifty percent (50%) or
more of the issued share capital or capital stock of that
person (or other ownership interest, if not a corporation);
(ii) the ability to control, directly or indirectly, fifty
per cent (50%) or more of the voting power in relation to
that person; or (iii) the legal power to direct or cause the
direction of the general management and policies of that
person, provided that where Control is being determined with
respect to a person that is a limited partnership, Control
shall be determined by reference to the satisfaction of any
of the above tests with respect to the general partner of
the limited partnership.
"Customer" means any customer of a Manager with respect to which the
Manager provides Customer Data to State Street hereunder.
"Customer Data" means, with respect to each Manager, any and all data or
information relating to the Manager or its Customers that is
created, accessed and/or maintained by, or otherwise
provided by the Manager to, State Street or any Delegate or
Affiliate in connection with the Services.
"Damages" means, subject to sub-section 15.9 hereof, any direct loss,
damage, cost, expense or other liability, including any
judgment or award or any amount reasonably paid in
settlement in respect of a Claim.
"Data Access has the meaning set forth in sub-section 5.1 hereof.
Services"
"Definitive has the meaning set forth in sub-section 4.6 hereof.
Project Plan"
"Delegate" has the meaning set forth in sub-section 3.2 hereof.
"Discretionary has the meaning set forth in sub-section 4.1.1 hereof.
Change"
"Effective Date" means (i) in relation to the Initial Manager, the date
hereof or (ii) in relation to a Manager that becomes a Party
to this Agreement by means of an Instrument of Accession,
the date of execution of such Instrument of
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Accession.
"Executive has the meaning set forth in sub-section 4.7 hereof.
Officers"
"Extension Period" has the meaning set forth in sub-section 27.9 hereof.
"Extension Period has the meaning set forth in sub-section 27.9 hereof.
Services"
"Fee Schedules" has the meaning set forth in Section 20 hereof.
"Force Majeure has the meaning set forth in sub-section 16.2 hereof.
Event"
"Front Office means such Services set forth in Part B of Schedule 1
Technology attached hereto, as may be amended from time to time.
Services"
"Historic means the books, records, data bases, electronic files,
Records" documents and other data and information relating to a
Manager and/or its Customers maintained by or on behalf of
such Manager prior to the relevant Effective Date (in
relation to such Manager) and used or otherwise relied upon
by State Street for the provision of the Services hereunder.
"Indemnified Party" means the Party that is required hereunder to be indemnified
by another Party in respect of a Claim.
"Indemnifying means the Party that is obligated hereunder to indemnify
Party" another Party in respect of a Claim.
"Initial Term" has the meaning set forth in Section 27 hereof.
"Investment means an investment account established by a Manager for a
Account" Customer in respect of which State Street provides the
Services hereunder.
"In-Scope means collectively, the State Street Proprietary Technology
Technology" and the Third-Party Technology, including, without
limitation, any modifications or enhancements made thereto
from time to time.
"Manager Data" means data entered, changed or deleted by authorized
individuals while accessing the Front Office Technology
Services.
"Mandatory Change" has the meaning set forth in sub-section 4.1.2 hereof.
"Materials" means all intellectual property rights, including but not
limited to all patents, patent applications, patent rights,
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trademarks, trademark applications, trade names, trade
dress, service marks, service ▇▇▇▇ applications, domain
names, copyrights, copyright applications, computer programs
and other computer software (including, without limitation,
all Source Code), inventions, designs, samples,
specifications, schematics, know-how, trade secrets,
proprietary processes and formulae, development tools,
discoveries, improvements, ideas, techniques, materials,
flow charts, outlines, lists, compilations, manuscripts,
writings and pictorial materials, and all documentation and
media constituting, describing or relating to the foregoing,
including, without limitation, manuals, memoranda and
records, but excluding Customer Data.
"Middle Office means such Services set forth in Part A of Schedule 1
Services" attached hereto, as may be amended from time to time.
"Monthly Services has the meaning set forth in sub-section 7.8 hereof.
Report"
"Out-of-Scope- means any and all business functions of a Manager except the
Functions" Services.
"Out-of-Scope means any and all technology used by a Manager for carrying
Technology" out the Out-of-Scope Functions.
"Party" or has the meaning set forth in the first paragraph of the
Parties" preamble to this Agreement.
"Proper means instructions (which may be standing instructions)
Instructions" received by State Street (a) in accordance with an agreed
Authentication Procedure or (b) from an Authorized Person or
a person reasonably believed by State Street to be an
Authorized Person, in any of the following forms: (i) in
writing signed by the Authorized Person, including without
limitation, a facsimile transmission thereof; (ii) in an
electronic communication as may be agreed upon in writing
from time to time; or (iii) by such other means as may be
agreed upon in writing from time to time by State Street and
the Manager giving such instruction including, without
limitation, oral instructions.
"Proposed Project has the meaning set forth in sub-section 4.5 hereof.
Plan"
"Relationship has the meaning set forth in Section 22 hereof.
Managers"
"SAS 70" has the meaning set forth in Section 18 hereof.
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"Services" means Front Office Technology Services and Middle Office
Services set forth in Schedule 1 attached hereto.
"Service Level" means the performance standards and/or service level
commitments of State Street to a Manager in respect of the
Services, as set forth in the applicable Service Level
Agreement(s).
"Service Level means the relevant Service ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇(▇) ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇" ▇▇▇▇▇▇ and each Manager relating to the provision of
Services by State Street and its Delegates and Affiliates,
as the same may be amended from time to time by written
agreement of State Street and such Manager.
"Source Code" means the human readable embodiment of any software code, in
or on any electronic media which includes developer
comments, flow charts, program narratives, and all related
system and programming documentation for such software as
well as any and all externalizations, utilities and
compilers required to use, execute and modify the Source
Code and which is sufficient to enable a reasonably skilled
programmer to maintain and enhance the software.
"State Street means any and all Materials forming part of or made
Proprietary available as part of (i) Work Product or (ii) the In-Scope
Information" Technology and the Data Access Services (other than Customer
Data).
"State Street means the systems and application software, middleware,
Proprietary communications links and other devices and technology
Technology" developed by State Street and used in the performance of the
Services.
"Term" means the Initial Term, as the same may be extended in
accordance with the terms hereof.
"Third Party" means any person other than State Street, a Delegate or a
Manager, or an Affiliate of any of them.
"Third-Party means any contract, license, trust indenture or other legal
Agreement" agreement between a Third Party and a Manager.
"Third-Party means any provider of services to a Manager or any Customer
Service Provider" of a Manager (other than State Street or its Delegate, or an
Affiliate of any of them), including,
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without limitation, any investment adviser or sub-adviser,
custodian, distributor, dealer, transfer agent,
administrator, accounting agent or fiduciary in respect
thereof.
"Third-Party means the hardware, systems and application software,
Technology" middleware, communications links and other devices and
technology manufactured or developed by Third Parties and
used by State Street in the performance of the Services.
"Work Product" means all Materials or other deliverables created, developed
or provided by State Street in connection with or a result
of the Services, but excluding Customer Data.
1.2. In this Agreement references to "persons" shall include legal entities as
well as natural persons, references importing the singular shall include
the plural (and vice versa), use of the masculine pronoun shall include the
feminine and numbered schedules, exhibits, sections or sub-sections shall
(unless the contrary intention appears) be construed as references to such
schedules and exhibits hereto and sections or sub-sections herein bearing
those numbers. The schedules and exhibits hereto are hereby incorporated
herein by reference.
1.3. The section headings are for reference and convenience only and shall not
be considered in the interpretation of this Agreement.
1.4. For purposes of this Agreement, references to days or time periods shall be
to calendar days or calendar time periods unless otherwise expressly
stated.
1.5. In the event of any inconsistency between the provisions contained in a
Service Level Agreement and this Agreement, the terms of the latter shall
prevail. In the event of any inconsistency between any of the Schedules and
the terms contained in the body of this Agreement, the terms of the latter
shall prevail.
2. APPOINTMENT
2.1. Each Manager, severally but not jointly, hereby retains State Street to
provide the Services subject to and in accordance with the terms and
conditions set forth in this Agreement and in each case further subject to
the oversight and direction of the relevant Manager. During the Term, State
Street shall be the exclusive provider of the Services to each of the
Managers.
2.2. This Agreement is entered into by each Manager as a principal contracting
party and not as agent for any other person and nothing contained herein
shall be interpreted as creating any rights in any Third Parties or any
contractual obligations on the part of State Street to any person or
persons other than the Managers. No Customer or other Third Party shall
constitute, or shall be entitled to claim any rights as, a third party
beneficiary of this Agreement.
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3. INVESTMENT ADMINISTRATION SERVICES
3.1. Commencing in each case on the relevant Effective Date, State Street shall
provide or procure the provision of the Services to each Manager subject to
and in accordance with the terms and conditions of this Agreement.
3.2. State Street shall retain the right to employ agents, subcontractors,
consultants and other Third Parties (each a "Delegate" and collectively,
the "Delegates") to provide or assist it in the provision of any part of
the Services, provided that State Street may not delegate the performance
of a substantial part of the Services without the prior consent of the
affected Manager(s), which consent may not be unreasonably withheld,
conditioned or delayed. Notwithstanding the foregoing, State Street may
delegate the Services or any part thereof to any Affiliate of State Street
without the consent of the affected Managers.
Except as otherwise provided by sub-section 3.3, State Street's liability
hereunder for all matters delegated shall not be affected thereby and, for
the avoidance of doubt, State Street shall remain responsible for (i)
performance of the Services, including Services performed by Delegates and
Affiliates, in accordance with this Agreement and (ii) the acts and
omissions of any Delegate or Affiliate as if State Street had committed
such acts and omissions itself. Unless otherwise mutually agreed by the
Parties, State Street shall remain the Managers' sole point of contact
regarding any Services provided by Delegates and Affiliates. For the
avoidance of doubt, the term Delegate shall not include, without
limitation, Authorized Data Sources, suppliers of Third-Party Technology
and industry messaging or matching utilities.
3.3. Notwithstanding anything contained in this Agreement to the contrary, in
the event a Manager instructs or otherwise directs State Street to employ a
particular Delegate to provide or assist it in the provision of any part of
the Services, State Street shall use reasonably commercial efforts to
enforce its rights under its agreement with that particular Delegate. For
the avoidance of doubt, State Street's liability to a Manager on account of
any actions or omissions of any such Delegate shall be limited to the
amount (if any) recovered from such Delegate by State Street; provided
however that State Street shall use commercially reasonable efforts to
recover from such Delegate any Damages resulting from its acts or
omissions.
State Street shall not be responsible for the accuracy or omission of
information provided or required to be provided by Authorized Data Sources
or a supplier of Third-Party Technology. In the event that State Street
knows that the information provided by an Authorized Data Source or a
supplier of Third-Party Technology is inaccurate or incomplete, State
Street shall re-perform the relevant Services hereunder upon its receipt of
corrected and complete data.
3.4. State Street shall not be responsible for any duties or obligations that it
has not expressly undertaken pursuant to this Agreement and no such duties
or obligations shall be implied or inferred other than any additional tasks
and duties that are carried out by the Managers prior to the date hereof
and that are integral to and a necessary part of the proper discharge of
the Services; provided, however, that in the event such additional tasks or
duties involve a material expense on the part of State Street that was not
contemplated by the Parties as part of the Fee Schedule, such additional
tasks and duties shall be deemed a Discretionary Change, subject to the
terms of Section 4.
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3.5. In order to facilitate its provision of the portion of Services designated
as "front office technology services" as set forth in Part B of Schedule 1
hereto ("Front Office Technology Services"), State Street has appointed,
without instruction or direction by any Manager, Linedata Services, Inc.
("Linedata") as a Delegate to assist it in the provision of the Front
Office Technology Services.
Each Party acknowledges and agrees that the Linedata technology and systems
used in connection with State Street's provision of Front Office Technology
Services is proprietary to Linedata and, State Street, the Managers and
Authorized Designees agree to treat Linedata's technology and systems as
the Confidential Information of Linedata in accordance with the terms set
forth in Section 25, below. Each Party further acknowledges and agrees that
Linedata is an intended third party beneficiary of this Agreement solely
for purposes of maintaining its intellectual property and proprietary
rights in its technology and systems.
4. MODIFICATION OF SERVICES
4.1. If at any time during the Term State Street or a Manager (as the case may
be) wishes to:
4.1.1. (i) add new or additional services, (ii) modify or otherwise change
the Services (including, without limitation, the elements and/or
frequency of any task performed as part of the Services), (iii) change
the means or manner in which the Services are provided, or (iv) change
the location from or to which the Services are provided, other than a
change initiated by State Street (each, a "Discretionary Change"); or
4.1.2. (i) add new or additional services, (ii) modify or otherwise change
the Services (including, without limitation, in the manner noted in
sub-section 4.1.1 above), or (iii) change the means or manner in which
the Services are provided, in each case as a result of any change in
any relevant law or regulation or any change in the rules, regulations
or conventions of any regulatory body, market, exchange, securities
system, depository or other component of market infrastructure (each,
a "Mandatory Change");
then the relevant Manager or State Street, as applicable, shall deliver a
written request to the other Party seeking such Discretionary Change or
Mandatory Change, as the case may be (each a "Change"). Such written
request shall contain as much detail as is reasonably practicable regarding
the nature and scope of the Change including without limitation the desired
(or mandated in the case of a Mandatory Change) implementation date, and
the proposed allocation of costs (if any) to the Manager(s) (each such
request, a "Change Request").
4.2. Upon the delivery of a Change Request, State Street or the requesting
Manager, as applicable, shall promptly conduct an initial assessment of the
requested Change and the proposed implementation date. In making such
assessment, State Street or the requesting Manager, as applicable shall
consider, inter alia: the cost and resources necessary to effect the
Change; the feasibility of the requested implementation date; market
charges for comparable services inclusive of the Change; and the financial
return, risk and liability to State Street in providing the Services
following the implementation of the Change. Each Party shall be obligated
to act in good faith and in a commercially reasonable manner in carrying
out any such assessment.
4.3. If upon completion of an initial assessment, State Street or the Manager,
as applicable, determines that it would be commercially impractical to
implement a Change Request relating to a
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Discretionary Change, such Party shall promptly notify the other Party of
its determination and the Parties shall discuss possible modifications to
the Change Request such that the Discretionary Change could be practically
implemented on terms mutually satisfactory to the Parties. If after such
good faith discussion, State Street or the Manager, as applicable,
determines, in its reasonable discretion, that the Discretionary Change
remains commercially impractical, such Party shall be entitled to decline
the Change Request subject to sub-section 4.7 below.
4.4. Subject to sub-section 4.7, State Street shall be obligated to implement a
Mandatory Change with an appropriate adjustment to each Fee Schedule to
reflect a pro rata charge applicable to all State Street customers for
which State Street implements the Mandatory Change. Notwithstanding the
foregoing and subject to sub-section 4.7, each Manager shall be responsible
for all development and implementation costs relating to the modification
or enhancement of any Out-of-Scope Technology or the development and/or
implementation of any new Out-of-Scope Technology in connection with a
Mandatory Change, including, without limitation, the cost of any interface
development between such modified, enhanced or new Out-of-Scope Technology
and the In-Scope Technology.
4.5. In the event of a Mandatory Change or if State Street agrees to proceed
with a Discretionary Change, State Street shall within forty-five (45) days
prepare and deliver to the Manager a draft project plan that details the
work required to effect the requested Change, a proposed timetable for
completion of the work and implementation of the Change, an estimate of the
costs of the work and (in the case of a Discretionary Change) the
allocation of such costs to the Manager and a fee proposal for the Services
following implementation of the Change (a "Proposed Project Plan"). State
Street shall also prepare and deliver to the Manager any proposed revisions
to the terms of this Agreement, the Service Level Agreement(s) and/or each
Fee Schedule necessitated by implementation of the Change (as applicable).
4.6. If a Manager wishes to proceed on the basis of the Proposed Project Plan
(or on amended terms) it shall so notify State Street and the Parties shall
thereafter negotiate final terms and a definitive project plan (a
"Definitive Project Plan") as soon as practicable.
4.7. In the event State Street declines to proceed with a Discretionary Change
or in the event the Manager and State Street are unable to reach agreement
on the terms and conditions of a Definitive Project Plan for implementation
of a Discretionary Change, the dispute shall be submitted to the
Relationship Managers for resolution. If the Relationship Managers are
unable to resolve the matter within fifteen (15) days from the date of such
referral, it shall be referred to ▇▇▇▇ ▇▇▇▇▇▇, a State Street Executive
Vice President and ▇▇▇▇▇▇'▇ Chief Operating Officer (or their equivalents
following any reorganization) (together, the "Executive Officers") for
final resolution. If the Executive Officers are unable to resolve the
matter within fifteen (15) days, the Discretionary Change shall not be
implemented.
4.8. The Parties acknowledge and agree that not all Changes will involve the
imposition of additional charges and that the Parties will negotiate in
good faith to reach agreement on a commercially reasonable allocation of
the initial and on-going costs in respect of a Change that reflects the
underlying economic arrangement between the Parties. In each instance, the
Parties shall assess inter alia: (i) the materiality of the change; (ii)
the degree to which the Change Request involves substantially similar
functions, duties and/or workloads as then performed by State Street as
part of the Services; (iii) the cost of developing and implementing the
Change based on (a) State
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Street's then-current standard hourly rates with respect to State Street's
internal resources and (b) projected Third Party charges (including,
without limitation, the providers of Third-Party Technology), as
applicable; (iv) the timing of the Change in relation to then-current
resource levels and other pending projects and initiatives; (v) the
resource and cost profile of providing the Services after implementation of
the Change; (vi) whether up front costs can be recouped within a
commercially reasonable time frame; (vii) whether the Change involves the
creation of assets or competencies which State Street can employ to service
other customers; and (viii) such other considerations as the Parties deem
relevant under the circumstances.
4.9. Upon agreement on the terms and conditions of the Definitive Project Plan,
State Street shall promptly implement the Change in accordance with the
terms thereof and the Parties shall provide each other with such
cooperation and assistance as may be reasonably necessary to effect the
Change in accordance with the agreed terms. Any and all documentation
relating to a Change and the performance by the Parties of their respective
obligations under such documentation shall be subject to the terms and
conditions of this Agreement, including, without limitation, the standard
of care and the limitations of liability set forth in Section 15 hereof.
Any allocation of liability in any such documentation shall be deemed an
amendment for the purposes of, and shall be valid only upon the
satisfaction of the requirements set forth in, Section 37 hereof.
4.10. For the avoidance of doubt, no Change proposed by a Manager or State
Street shall form part of this Agreement until such Change is implemented
in accordance with a Definitive Project Plan and any required revisions to
this Agreement and the Service Level Agreement take effect. State Street
shall continue to perform and each Manager shall accept State Street's
performance of this Agreement on its then existing terms and conditions
until such revisions take effect.
4.11. The change procedure outlined in this Section 4 shall not apply to
products and services developed by State Street (or its Affiliates)
independently of its duties and obligations under this Agreement.
5. USE OF TECHNOLOGY AND DATA ACCESS SERVICES
5.1. Subject to the terms and conditions of this Agreement, State Street hereby
grants to each Manager and its Authorized Designee(s) a limited,
non-exclusive, non-transferable and irrevocable (except as provided herein)
right to access and use during the Term the In-Scope Technology sufficient
to allow each Manager and its Authorized Designee(s) to access
electronically and use data and information generated or maintained by
State Street as part of the Services, including, but not limited to, all
Work Product and Customer Data (the "Data Access Services"). Such right is
revocable by State Street in the event: (i) ▇▇▇▇▇▇ fails to comply with the
obligations as set forth in this Section 5; or (ii) State Street's access
to or provision of In-Scope Technology is limited by the third party
provider; or (iii) as otherwise expressly set forth in Section 27 of this
Agreement. In the case of (ii) above, State Street shall provide reasonable
work around services and shall use commercially reasonable efforts to
obtain alternative resources as provided in Section 15.11.3.
5.2. Except for the limited rights granted by sub-section 5.1, in no event will
a Manager or any Authorized Designee acquire or retain any other license or
right of use or otherwise acquire or retain any right, title or interest in
or to the In-Scope Technology, whether in the form of intellectual property
or other ownership rights or interests. Notwithstanding the foregoing or
any other provision hereof, all Customer Data and all intellectual property
and other rights therein
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shall be and remain the exclusive property of the Managers and/or their
Customers. Except as otherwise expressly provided herein, State Street will
not itself grant, and will use commercially reasonable efforts to ensure
that no Delegate grants, to any Third Party any rights with respect to or
interests in Customer Data whatsoever.
5.3. Subject to Section 5.12, any and all rights granted hereunder are limited
by and subject to the restrictions imposed under any license or other
agreement between State Street and any supplier of Third-Party Technology,
data feeds or other information or technology services and each Manager and
Authorized Designee agrees to abide by any such restrictions following
receipt of notice thereof from State Street and a reasonable opportunity to
act thereon. All such restrictions in effect on the date hereof have been
disclosed by State Street to the Initial Manager.
5.4. Subject to Section 5.10, each Manager and Authorized Designee agrees to use
the In-Scope Technology and the Data Access Services solely for internal
business purposes in connection with the relevant Manager's receipt of the
Services from State Street under this Agreement. Each Manager and
Authorized Designee agrees that it shall not: (i) permit any Third Party
(other than an Authorized Designee) to use the In-Scope Technology or the
Data Access Services; (ii) sell, rent, license, sublicense, sublease or
otherwise use the In-Scope Technology or the Data Access Services in the
operation of a service bureau, time sharing or outsourcing environment or
to develop a product that is similar to the In-Scope Technology and the
Data Access Services or for any purpose other than as expressly authorized
under this Agreement; or (iii) allow or cause any information accessed or
made available through use of the In-Scope Technology or the Data Access
Services, including market rate or price data from Third Party sources, to
be published, redistributed or retransmitted other than for use by the
Manager (or on its behalf) as State Street's customer; or (iv) interfere in
any manner with the hosting of the Front Office Technology Services; or (v)
conceal or remove any title, trademark, copyright, proprietary or
restricted rights notice contained in the In-Scope Technology or Data
Access Services associated therewith. Notwithstanding the foregoing, the
Manager is permitted to incorporate such information in client statements
and reports and to distribute such information in the ordinary course of
its business to its customers, prospects and internal organizations in a
reasonable manner so long as any market rate or price data provided by
Third Party sources has been manipulated so that it appears in a form
different from that provided by the Third Party source and cannot be
readily attributed to such Third Party sources.
5.5. Each Manager and Authorized Designee agrees not to modify, reproduce, copy,
alter, adapt, improve or translate the In-Scope Technology in any way,
enhance or otherwise create derivative works based upon the In-Scope
Technology or reverse engineer, disassemble, decompile or otherwise attempt
to secure the Source Code, trade secrets and know-how for all or any part
of the In-Scope Technology. Notwithstanding the foregoing, nothing in this
Agreement shall preclude either party from using any general information,
ideas, concepts, know-how, techniques, methodologies, processes, skills,
processes, knowledge or expertise (collectively, "Residual Information")
which such party's employees retain in their unaided memory, which are no
more than skilful variations of general Residual Information known in the
financial services, investment, consulting and/or securities industries
(and, as such, are neither State Street Proprietary Information or
Confidential Information nor owned by any Party hereto). A person's memory
is unaided if the person has not intentionally memorized the relevant
information for the purpose of retaining and subsequently using or
disclosing it for purposes unrelated to the services performed hereunder.
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5.6. In connection with its access to and use of the In-Scope Technology, each
Manager (and its Authorized Designee(s)) shall comply with the systems
access operating standards and procedures and user identification and
password control requirements and other security procedures implemented by
State Street in accordance with State Street's Corporate Information
Security Policy and the standards set forth therein (the "CIS Policy"), for
which a high level summary of all relevant provisions and conditions
applicable to Manager's ability to access the In-Scope Technology has been
provided to the Manager by State Street. In the event State Street alters
any of the security procedures in connection with a revision to the CIS
Policy it shall notify each Manager of such changes reasonably in advance
of implementation. Each Manager and Authorized Designee shall advise State
Street as promptly as practicable, but in any event within twenty-four (24)
hours, in the event that it learns that any person to whom it has granted
access to In-Scope Technology or the Data Access Services has violated the
terms of this Agreement and will reasonably cooperate with State Street in
seeking injunctive or other equitable relief.
5.7. Each Manager (and its Authorized Designee(s)) acknowledges and agrees that
State Street shall have the right to suspend use of the In-Scope Technology
and the Data Access Services for designated security reasons in accordance
with such escalation and approval procedures as may be agreed by the
Parties from time to time and, in such event, each Manager (and its
Authorized Designee(s)) shall discontinue use of the In-Scope Technology
and Data Access Services in accordance with such procedures.
5.8. The Manager and its Authorized Designee shall be fully responsible for its
authorized individuals' use of the Front Office Technology Services
(whether lawful or unlawful) and any transactions completed by the
authorized individuals will be deemed to have been completed by the Manager
or its Authorized Designee.
5.9. State Street represents and warrants that:
i) the Front Office Technology Services will be performed in a
professional manner in accordance with industry standards;
ii) the In-Scope Technology shall perform in accordance with the
specifications provided to the Manager in all material respects;
iii) it will use commercially reasonable efforts to ensure that the
In-Scope Technology, and any updates or revisions thereof, will be
scanned for virus or mechanism that is designed to delete, disable,
interfere with or otherwise harm the In-Scope Technology or Data
Access Services (or the Manager's hardware, data or other software),
make it inaccessible to Manager or Authorized Designee once the Data
Access Services or Front Office Technology Services are made
available, or that is intended to provide access or produce
modifications not authorized by State Street, and if detected, will be
eliminated from In-Scope Technology or Data Access Services.
Notwithstanding the foregoing, the In-Scope Technology may contain a
disabling mechanism that will suspend a Manager's or Authorized
Designee's use or access to such In-Scope Technology in the event a
Manager or an Authorized Designee breaches its obligations under this
Section 5.
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iv) Notwithstanding the foregoing, none of State Street, its Delegates or
suppliers makes any representation as to the interoperability of the
In-Scope Technology or Data Access Services with any third parties'
systems. Under no circumstances will State Street be liable for any
damage or loss resulting from a Force Majeure Event set for the in
Section 16.2, including unauthorized access, theft or operator error.
v) Other than as expressly stated in this Agreement, all In-Scope
Technology, Data Access Services, Front Office Technology Services and
all other data and materials made available to a Manager or Authorized
Designee in connection with this Agreement by State Street and its
suppliers are PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT
REPRESENTATIONS OR WARRANTIES OF ANY KIND. STATE STREET AND ITS
SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION
OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF
PERFORMANCE, DEALING OR USAGE OF TRADE. STATE STREET DOES NOT WARRANT
THAT THE IN-SCOPE TECHNOLOGY AND THE DATA ACCESS SERVICES WILL BE
PROVIDED ERROR-FREE, UNINTERRUPTED, SECURE OR COMPLETELY VIRUS-FREE.
WITHOUT LIMITING THE FOREGOING, STATE STREET MAKES NO REPRESENTATION
OR WARRANTIES OF ANY KIND WITH RESPECT TO THE THIRD PARTY COMPONENTS
OF THE SERVICE.
5.10. Each Manager acknowledges that certain software and technical data to be
provided hereunder and certain transactions hereunder may be subject to
export controls under the laws and regulations of one or more
jurisdictions. No Party shall export or re-export any such items or any
direct product thereof or undertake any transaction in violation of any
such laws or regulations. Each Party shall be responsible for, and shall
co-ordinate and oversee, compliance with such export laws in respect of
such items exported or imported by it hereunder. Regardless of any
disclosure made by a Manager to State Street of an ultimate destination of
the In-Scope Technology or Data Access Services, none of the In-Scope
Technology or Data Access Services or the underlying information or
technology may be downloaded or otherwise exported or re-exported (i) into
(or to a national or resident of) Cuba, Iraq, Libya, Yugoslavia, North
Korea, Iran, Syria or any other country to which the U.S. has embargoed
goods; or (ii) to anyone on the U.S. Treasury Department's list of
Specially Designated Nationals or the U.S. Commerce Department's Table of
Deny Orders. By using the In-Scope Technology or Data Access Services, the
Manager is agreeing to the foregoing and is representing and warranting
that it is not located in, or under the control of, any such country or on
any such list.
5.11. For purposes of this Section 5, each Manager shall be responsible for the
acts and omissions of its Authorized Designees as if such Manager had
committed such acts and omissions itself.
5.12. In the event any Manager makes any revision, update, improvement,
modification, correction, release, replacement or enhancement to the
Out-of-Scope Technology or any interface between the In-Scope Technology
and the Out-of-Scope Technology and any modification to the In-Scope
Technology would be required as a result thereof, such Manager shall use
commercially
14
reasonable efforts to minimize the costs of State Street in respect thereof
and shall consult with State Street in the furtherance of such efforts.
5.13. The restrictions contained in sub-sections 5.3 and 5.4 hereof as they
relate to a supplier of Third-Party Technology, data feeds (including any
information (e.g., market rate or price data) accessed or made available
through the In-Scope Technology or the Data Access Services) or other
information or technology services shall not limit any rights of a Manager
pursuant to any agreements between such Manager and any such Third Party.
5.14. Each Manager and Authorized Designee shall be solely responsible, at its
own expense for acquiring, installing and maintaining all connectivity
equipment, hardware, software and other equipment as may be necessary for
it to connect to, access and use the In-Scope Technology or Data Access
Services, except as otherwise provided by State Street or its Third Party
Technology providers.
5.15. Subject to the terms of sub-sections 15.8 and 15.9 hereof, State Street
will defend or, at its option, settle any Claim brought against a Manager
to the extent that it is based upon an assertion that access to or use of
the In-Scope Technology by the Manager in accordance with the terms of this
Agreement constitutes direct infringement of any patent or copyright or
misappropriation of a trade secret, provided that the Manager notifies
State Street promptly in writing of any such Claim and cooperates with
State Street in the defense of such Claim; provided, however, that the
foregoing obligation of State Street shall not apply to the extent such
Claim relates to any In-Scope Technology that State Street has acquired
from any of the Managers or their Affiliates, as applicable. Should the
In-Scope Technology or any part thereof become, or in State Street's
opinion be likely to become, the subject of a claim of infringement or the
like under the patent or copyright or trade secret laws of any
jurisdiction, State Street shall have the right, at State Street's sole
option, to (i) procure for each Manager the right to continue using the
In-Scope Technology, (ii) replace or modify the In-Scope Technology so that
the In-Scope Technology become non-infringing, or (iii) terminate provision
of access to and use of the In-Scope Technology by each Manager without
further obligation. State Street's liability to a Manager under this
sub-section 5.15 in respect of any Damages resulting from the use of
Third-Party Technology forming part of the In-Scope Technology shall be
limited to the amount (if any) recovered from such Third Party by State
Street.
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6. PROPRIETARY RIGHTS; WORK PRODUCT
6.1. All Materials of the Manager(s), their Affiliates or their suppliers
existing prior to the date of this Agreement, shall, as between the
Manager(s) and State Street, be the property of the Manager(s) or such
Affiliates, as the case may be. All Materials of State Street or its
suppliers existing prior to the date of this Agreement shall, as between
State Street and the Manager(s), be the property of State Street.
6.2. Any request by a Manager with respect to the development of Work Product by
State Street shall be subject to the Change procedures set forth in Section
4 hereof. As between the Manager and State Street, all right, title and
interest in and to Work Product shall be owned by State Street.
Notwithstanding the foregoing, as between the Parties, all Customer Data
shall be owned by the Manager(s).
6.3. In addition to the use rights and restrictions set forth in Section 5 and
subject to the terms and conditions of this Agreement (including, without
limitation, the warranty and liability provisions/disclaimers,
indemnification provisions and treatment of State Street Proprietary
Information as Confidential Information), State Street hereby grants to the
Managers and their Authorized Designees (as applicable), a limited,
non-exclusive, non-transferable, and revocable right to use during the
Term, certain Work Product (as the Parties shall mutually designate in
writing from time to time) solely for internal business purposes in
connection with the Managers' receipt and use of the Services from State
Street hereunder.
6.4. Each Manager and Authorized Designee, as applicable, agrees to treat any
and all State Street Proprietary Information as Confidential Information
hereunder and, except as otherwise expressly provided in this Agreement or
expressly permitted by State Street in writing, to limit access to State
Street Proprietary Information to such employees as require access for the
purposes contemplated by Sections 5 or 6, as applicable.
6.5. Except for the license rights contained in Section 5 or Section 6, neither
this Agreement nor any disclosure made hereunder grants any license to any
Party under any patents or copyrights of any other Party.
7. SERVICE LEVEL AGREEMENT
7.1. In connection with this Agreement, State Street and each Manager shall
enter into a separate Service Level Agreement that specifies the Service
Levels and certain duties and obligations of the Manager relating thereto.
7.2. Subject at all times to the terms and conditions of this Agreement, State
Street shall use reasonable efforts to provide the Services to each Manager
in accordance with the relevant Service Level Agreement.
7.3. Each Manager shall use reasonable efforts to fulfill its duties and
obligations under the relevant Service Level Agreement and to cause any
Third Parties (other than any Delegates) referenced therein to do likewise.
State Street's failure to meet any Service Level shall be excused and State
Street shall have no liability for any Damages to the extent resulting from
or caused by the failure
16
of a Manager or any Third Party referenced in the relevant Service Level
Agreement to comply with the terms thereof.
7.4. The liability of State Street and each Manager in respect of its
obligations under a Service Level Agreement shall be governed by the terms
of this Agreement. In no event shall a failure by State Street or a Manager
to comply with any term or condition of a Service Level Agreement
constitute a breach or violation of this Agreement giving rise to financial
penalties, damages or contractual or other remedies, except as set forth in
this Section 7. It is the intention of State Street and each Manager that
the sole and exclusive remedy for any:
7.4.1. failure by State Street, the Manager or any Third Party referenced
in a Service Level Agreement to meet the performance standards and/or
service level goals or other aspects of the Service Level Agreement;
or
7.4.2. consistent failure by State Street, the Manager or any Third Party
referenced in a Service Level Agreement to fulfill its duties and
obligations under the Service Level Agreement in a material respect;
or
7.4.3. any other dispute relating to a Service Level Agreement,
shall be referral of the matter to the Relationship Managers for attempted
resolution or, where applicable, termination of this Agreement in
accordance with sub-section 27.3.2.3 or 27.4.2.3, as the case may be.
7.5. The purpose of a referral to the Relationship Managers shall be to resolve
the failure or inability of the relevant Party (or Third Party) to meet its
obligations under a Service Level Agreement. It shall be the responsibility
of the Relationship Managers to develop and oversee implementation of
procedural or operational changes which will enable the relevant Party (or
Third Party) to meet its obligations under the Service Level Agreement;
approve and oversee implementation of remedial plans to address failures by
the relevant Party (or Third Party) to meet such obligations; or otherwise
develop a solution aimed at ensuring that the inability of a Party (or
Third Party) to meet its obligations under the Service Level Agreement will
be less likely to occur in the future.
7.6. If a matter is referred to the Relationship Managers pursuant to
sub-section 7.4 and despite implementation of the Relationship Managers'
recommendations, a Party consistently fails to meet in a material respect
its obligations under the Service Level Agreement that were the subject of
the referral or any revised obligations agreed as a result of the referral,
then the matter shall be referred to the Executive Officers for resolution.
The referral shall expressly cite this Section 7 and state that the
relevant Manager(s) or State Street, as the case may be, may exercise its
right to terminate this Agreement should the matter not be resolved.
7.7. If the Executive Officers are unable to resolve the matter within thirty
(30) days, then the relevant Manager(s) or State Street, as the case may
be, shall be entitled to terminate this Agreement in accordance with
sub-sections 27.3.2.3 and 27.4.2.3, respectively.
7.8. Promptly after the end of each calendar month during the Term and as set
forth in the applicable SLA, State Street shall provide each Manager a
monthly report ("Monthly Services Report")
17
setting forth such information relating to the performance of Services as
may be specified from time to time in the relevant Service Level Agreement.
7.9. In the event of a material failure by State Street to meet any of the
Service Levels specified in the Service Level Agreement (to the extent that
such failure was within State Street's reasonable control), State Street
shall: (i) within a commercially reasonable period of time not to exceed
thirty (30) days deliver to the Manager a plan showing in reasonable
specificity and detail (A) the causes for such failure to meet the Service
Levels and (B) remedial actions reasonably designed to eliminate, prevent
or reduce the future likelihood of recurrence of such causes; and (ii) upon
Manager's approval of such remedial plan of action (or of an amended
remedial plan as may be agreed by the Parties), proceed to carry out such
plan. In the event that the Parties, after a good faith attempt at
resolution, disagree as to whether State Street has materially failed to
meet the Service Levels, the disagreement shall be referred to the
Relationship Managers for resolution.
7.10. In the event that Front Office Technology Services availability falls
below the Availability Percentage set forth in the Front Office Technology
Services Service Level Agreement, and a Manager has notified State Street
of such unavailability, then, to the extent State Street becomes entitled
to service level credits under its agreement with Linedata as a result of
such unavailability, State Street shall credit such amounts received by
State Street against the fees next owing hereunder.
7.11. Nothing in this Section 7 shall excuse any failure by State Street to
perform the Services in accordance with the standard of care set forth in
Section 15 and the terms of this Agreement as distinct from a failure by
State Street to meet the relevant performance and service level goals
specified in a Service Level Agreement.
7.12. Nothing in this Section 7 shall excuse any failure by a Manager to perform
its duties and obligations under this Agreement as distinct from a failure
by such Manager to meet its duties as specified in a Service Level
Agreement.
8. GENERAL OBLIGATIONS OF EACH MANAGER
8.1. Each Manager shall:
8.1.1. give State Street all necessary instructions to enable State Street
to fulfill its duties and obligations under this Agreement;
8.1.2. ensure that all trade instructions delivered to State Street are
duly authorized and comply with all applicable securities and
investment laws, internal compliance procedures and policies and
investment restrictions applicable to the Manager and the relevant
Investment Account(s); and
8.1.3. promptly notify State Street of any omissions or inaccuracies in the
information supplied to State Street after becoming aware of such
omissions or inaccuracies.
8.2. Each Manager shall provide or cause to be provided to State Street such
data and information as State Street may reasonably require including,
without limitation, the information specified in the relevant Service Level
Agreement. State Street shall have no liability for the failure to provide,
18
any error in the provision of, or any delay in providing, any of the
Services to the extent the provision of such Services is dependent upon
receipt of the aforesaid information and such failure, error or delay is
caused by the Manager's or any Third Party's failure to provide such
information in a complete, accurate and timely manner.
8.3. Where technologically feasible, each Manager shall provide or cause to be
provided to State Street by electronic delivery the information required
pursuant to sub-section 8.2.
8.4. In the discharge of its obligations under this Section 8, each Manager
shall use reasonable efforts to ensure that all Third-Party Service
Providers make available to State Street such information in respect of the
Manager and its Customers as State Street may reasonably require for the
performance of the Services. This obligation shall include a duty to obtain
all necessary consents and approvals and execute all documentation that may
be required by such Third-Party Service Providers to enable State Street to
have electronic access to or receive electronic delivery of such
information, where technologically feasible.
8.5. Each Manager shall use all reasonable efforts to ensure that the
information provided or caused to be provided to State Street pursuant to
this Section 8 shall be provided in a complete, accurate and timely manner
so as to enable State Street to duly render the Services.
8.6. Each Manager will bear all expenses incurred in its operation that are not
specifically assumed by State Street hereunder, including, without
limitation, all costs and expenses necessary for or relating to receipt of
the Services and use of the Data Access Services. The Managers shall also
bear the cost of market data necessary to provide the Services until such
time as the Parties otherwise agree in writing.
8.7. Each Manager shall use all reasonable efforts and shall bear the cost to
procure the right for State Street to use any Third Party software licensed
by such Manager to the extent State Street is obligated to use such
software in connection with the provision of the Services.
8.8. To the extent that State Street is required to give (or is deemed to have
given) any representation or warranty to a Third Party relating to a
Manager and/or its Customers in accordance with normal market practice
(including, without limitation, any representation or warranty as to
authority or compliance in respect of any trade or settlement instruction)
in connection with the issuance or transmission of trade notifications,
confirmations and/or settlement instructions, whether using facsimile
transmission, industry messaging utilities and/or the proprietary software
of Third-Party Service Providers, clearing agencies, depositories and other
securities systems, the Manager shall be deemed to have made such
representation or warranty to State Street and shall indemnify and hold
State Street harmless from and against any Damages resulting from any
breach or alleged breach by the Manager of such representation or warranty,
except to the extent that such Damages or breach results from State
Street's negligence, fraud, bad faith, willful default or willful
misconduct in the discharge of its duties hereunder. To the extent that
State Street is required to give (or will be deemed to give) any such
representation or warranty relating to a Manager and/or its Customers other
than in accordance with normal market practices it shall notify and obtain
the written consent of the affected Manager(s) in advance of giving such
representation or warranty, provided that such consent is not to be
unreasonably withheld, conditioned or delayed.
19
8.9. In accordance with standard market practice, each Manager shall employ
commercially reasonable review and control measures with respect to
information provided by State Street under this Agreement so as to prevent,
stem or mitigate any Damages that may arise from the use of inaccurate
data.
9. RECONCILIATION OF HISTORIC RECORDS
9.1. Each Manager represents and warrants to State Street that as of the
relevant Effective Date it has completed or caused to be completed a full
reconciliation of the Historic Records and except as otherwise disclosed in
writing to State Street such records are accurate and complete in all
material respects.
9.2. To the extent the Historic Records in respect of a Manager (or any entry
therein) are unreconciled (or any necessary adjustments unprocessed) as of
the relevant Effective Date, such Manager shall ensure that the outstanding
items are fully reconciled and/or any necessary adjustments effected as
soon as practicable. Each Manager shall remain liable for funding any
shortfall in an Investment Account that may arise as a result of any
required adjustments.
9.3. State Street shall notify the relevant Manager in the event that it
discovers any material inaccuracies in the Historic Records and shall use
commercially reasonable efforts to assist the Manager to mitigate any
possible Damages arising from such inaccuracies, to the extent reasonably
practicable. State Street shall provide all reasonable assistance to each
Manager (at the expense of the Manager) to reconcile any outstanding items
and process any necessary adjustments.
10. RELIANCE ON DATA AND INFORMATION
10.1. In the course of discharging its duties hereunder and subject to
sub-section 10.2, State Street may act in reasonable reliance on the data
and information provided to it by or on behalf of a Manager or by any
persons authorized by a Manager including, without limitation, any
Third-Party Service Providers or Authorized Data Sources.
10.2. State Street shall perform certain reconciliations, variance or tolerance
checks or other specific forms of data review as specified in Schedule 1 of
this Agreement and/or each Service Level Agreement, as applicable. Except
as provided in the preceding sentence, State Street shall have no
responsibility for, or duty to review, verify or otherwise perform any
investigation as to the completeness, accuracy or sufficiency of any data
or information provided by or on behalf of a Manager, any persons
authorized by a Manager, or any Third-Party Service Provider, including
without limitation any Authorized Data Sources, and shall be without
liability for any Damages suffered or incurred by any person as a result of
State Street having relied upon and used such information in good faith.
State Street will promptly notify a Manager in the event it becomes aware
that any information received by it is incomplete, inaccurate or
insufficient, in a material respect, or in the event of a failure or delay
by any person required to provide information on behalf of a Manager in
accordance with this Agreement to State Street.
11. PROPER INSTRUCTIONS
20
11.1. Each Manager shall provide State Street with a list of such Manager's
Authorized Persons, which list shall include the names, powers and
signatures of each such person. State Street may rely upon the identity and
authority of such persons until it receives written notice from the
relevant Manager to the contrary and has been afforded a reasonable
opportunity to act thereon.
11.2. State Street shall follow such Authentication Procedures as may be agreed
upon with each Manager from time to time for purposes of verifying that
purported Proper Instructions have been originated by an Authorized Person
of such Manager. The Parties acknowledge and agree that the Authentication
Procedures agreed by the Parties have been designed to provide a
commercially reasonable degree of protection against certain unauthorized
transactions, but that Authentication Procedures are not designed to detect
errors. Such procedures may include the introduction of security codes or
passwords in order that State Street may verify that electronic
transmissions of instructions have been originated by an Authorized Person.
Any purported Proper Instruction received by State Street and authenticated
in accordance with the applicable Authentication Procedure shall be deemed
to have originated from an Authorized Person and shall constitute a Proper
Instruction hereunder for all purposes.
11.3. Except to the extent State Street is required to comply with agreed
Authentication Procedures pursuant to sub-section 11.2 above, State Street
shall have no duty to ensure or verify that personnel of a Manager engaged
in investment activity are authorized to do so or that any instructions
received by State Street are duly authorized.
11.4. State Street shall have no liability to a Manager (or any Customer) and
shall be indemnified and held harmless by the Manager from and against any
Damages that arise:
11.4.1. as a result of State Street acting upon any (i) Proper Instruction
or (ii) if a Proper Instruction is not required in a particular
circumstance, any other instruction, information, notice, request,
consent, certificate, instrument or other writing that State Street
reasonably believes to be genuine and to be signed or otherwise given
by or on behalf of a person authorized to do so by the Manager;
11.4.2. if a subsequent written confirmation of an oral Proper Instruction
fails to conform to the oral instructions received by State Street,
provided that State Street shall promptly seek written confirmation of
any oral instruction received by it; or
11.4.3. from a delay in processing any Proper Instruction that State Street
reasonably deems to be incomplete or unclear, provided that it
promptly seeks confirmation or clarification of such instruction.
11.5. State Street shall have no obligation to act in accordance with purported
Proper Instructions to the extent they conflict with the terms of this
Agreement or applicable law, rule or regulation, and State Street shall
have no obligation to ensure that any instruction received by it would not
contravene any such law, rule or regulation. State Street shall notify the
applicable Manager within a commercially reasonable period if the person
implementing the Proper Instruction has actual knowledge of such a
conflict.
11.6. If a Manager instructs State Street to take any action (including, without
limitation, the initiation of legal proceedings) that may involve the
payment of money or liability on the part of State
▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ may refrain from acting in accordance with such
instruction until it has received indemnity, security or both reasonably
satisfactory to it and sufficient to hold it harmless from and against any
Damages that State Street may incur as a result of taking such action.
12. SIGNATURE AUTHORITY
12.1. Each Manager hereby appoints State Street as its authorized signatory for
the limited purpose of signing communications issued by State Street on
behalf of and in the name of such Manager in connection with the discharge
by State Street of its duties hereunder. State Street shall exercise the
foregoing authority in each instance by one of the following methods: (i)
application of the facsimile signature of an authorized employee of the
Manager, as the same may be provided by the Manager from time to time; (ii)
manual or facsimile signature of an authorized State Street employee; or
(iii) as otherwise agreed by the Manager and State Street from time to
time. State Street and each Manager shall at all times maintain an updated
list of State Street personnel authorized to exercise the signature
authority conferred hereby.
12.2. The authority of State Street granted under sub-section 12.1 above in
relation to each Manager shall commence and be in full force and effect as
of the relevant Effective Date for each such Manager, and such authority
shall remain in force and be binding up to the time of the receipt by State
Street of a written revocation of said authority or the termination or
expiration of this Agreement (in relation to the Manager or in its
entirety), whichever occurs first.
13. COMPLIANCE WITH LAWS AND REGULATIONS
13.1. Each Party shall perform its obligations hereunder in accordance with all
applicable laws, rules and regulations applicable to it.
13.2. Without limiting each Manager's obligations under sub-section 13.1, each
Manager shall:
13.2.1. comply with all applicable laws relating to client identification
and the source and use of customer funds (including in respect of
money laundering and terrorism);
13.2.2. establish, maintain and implement policies, procedures and records
designed to ensure compliance by such Manager with such applicable
laws;
13.2.3. provide State Street with sufficient detailed summary information
of such policies and procedures and such other information (including
the identity and address of Customers and other information relating
to client identification and the source and use of Customer funds) as
State Street may reasonably request from time to time for the purpose
of permitting State Street to comply with its obligations under
applicable law. State Street and such Manager shall discuss and agree
upon specific information regarding the identity of Customers that
State Street requires, provided that at all times the level and timing
of the disclosure shall be sufficient to permit State Street to comply
with its obligations under applicable law; and
22
13.2.4. certify to State Street annually that such Manager has implemented
its anti-money laundering program and that such Manager shall perform
the specified requirements of its client identification program.
13.3. Each Party shall be responsible for providing any required notice to
and/or obtaining all consents and approvals of (i) applicable regulatory
bodies (including self-regulatory organizations) or (ii) other Third
Parties, that are necessary for the performance of its obligations under
this Agreement. Each Manager shall inform State Street of any restrictions
or conditions imposed on it which may affect the manner in which the
Services are rendered by State Street.
13.4. Each Manager shall be responsible for providing any required notices to
and/or obtaining any required consents and approvals of its Customers and
any applicable regulatory or self-regulatory bodies for the release of
Customer Data to State Street or any cross-border transmissions of Customer
Data to State Street that may be required in connection with the provision
of the Services. To the extent practicable, State Street and each Manager
shall format Customer Data in a manner that permits its release and/or
transmission under applicable data protection laws and regulations or
exempts such release and/or transmission from such laws and regulations.
13.5. Each Manager shall provide State Street with written notice of any
applicable security or confidentiality obligations or disclosure,
notification or consent requirements applicable to the use or transfer of
the Customer Data transmitted to State Street.
14. NOTIFICATION OF MATERIAL ADVERSE EVENTS
14.1. Each Manager, promptly upon knowledge, shall notify State Street and State
Street, promptly upon knowledge, shall notify each Manager of:
14.1.1. any notice of violation of any applicable laws, rules or
regulations, orders, judgments or decrees promulgated by any
regulatory, self-regulatory, administrative or judicial authority that
relates to the performance of the Services or which may have a
material adverse effect on its ability to fulfill its duties and
obligations under this Agreement; or
14.1.2. the commencement of any litigation or any regulatory,
self-regulatory, administrative or judicial proceeding or
investigation adverse to such Party that relates to the performance of
the Services or which may have a material adverse effect on its
ability to fulfill its duties and obligations under this Agreement; or
14.1.3. Any other event relating to such Party which may have a material
adverse effect on its ability to perform the Services or fulfill its
duties and obligations under this Agreement, as the case may be.
15. STANDARD OF CARE; LIMITATION OF LIABILITY
15.1. State Street shall at all times exercise reasonable care and diligence and
act in good faith in the performance of its duties hereunder; provided,
however, that State Street shall be without liability to a Manager for any
Damages arising out of or relating to the performance or non-performance of
its duties under this Agreement unless caused by its own negligence, fraud,
bad faith, willful default or willful misconduct or that of its Delegates.
State Street shall be responsible for the
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performance of only such duties as are expressly set forth in this
Agreement and shall have no responsibility for the acts or omissions of any
other person (save its Delegates), including, without, limitation any
Third-Party Service Providers. In no event shall State Street assume any
liability as a principal in relation to any investment activity undertaken
by a Manager.
15.2. State Street shall exercise reasonable care in the selection and
engagement of Third Parties with whom it contracts for technology and
services used to provide the Services, including without limitation,
Authorized Data Sources.
15.3. Each Manager, severally but not jointly, hereby indemnifies and holds
State Street harmless from and against any Damages (including without
limitation reasonable legal fees) which State Street may incur or sustain
in connection with the performance of its duties for such Manager under
this Agreement, except to the extent resulting from State Street's
negligence, fraud, bad faith, willful default or willful misconduct or that
of its Delegates in the discharge of its duties hereunder.
15.4. State Street shall have no liability to a Manager or any other person and
each Manager, severally but not jointly, shall indemnify and hold State
Street harmless from and against any Damages resulting from or caused by
(i) State Street's good faith reliance on the accuracy and completeness of
the Historic Records in respect of such Manager or (ii) any act or omission
of such Manager or any other person (including any predecessor service
provider to the Manager) prior to the relevant Effective Date, including,
for avoidance of doubt, any Claim asserted on or after the Effective Date
that arises from events (including any act or omission of such Manager)
occurring prior to the Effective Date.
15.5. State Street's duties hereunder do not include any obligation to monitor
compliance by a Manager or any other person whatsoever with any restriction
or guideline imposed by its constitutive documents, by contract or by law,
regulation or otherwise with regard to the investment of the assets of the
Customers or the investment activity of the Manager. In no event shall
State Street have any duty to enforce compliance by a Manager or any other
person whatsoever with any such restrictions or guidelines.
15.6. In no event shall any Party be liable for any Damages arising by reason of
the occurrence of a Force Majeure Event (as defined in sub-section 16.2)
that prevents, hinders or delays it from or in performing its obligations
under this Agreement.
15.7. In no event shall any Party be liable for any Damages incurred or suffered
by another Party at any time as a result of the failure of such other Party
to comply with the laws or regulations of any country or jurisdiction. For
avoidance of doubt, the preceding sentence shall not relieve a Party of
liability to the extent such other Party's failure to comply with any law
or regulation is the direct result of the first Party's negligence, fraud,
bad faith, willful default or willful misconduct in the discharge of its
duties hereunder.
15.8. The Indemnifying Party under this Agreement shall, at its expense, be
entitled to control and direct the investigation and defense of any Claim.
The Indemnifying Party shall have the right to settle any such Claim
without the consent of the Indemnified Party provided that such settlement
(i) fully releases the Indemnified Party from any liability and provides no
admission of wrongdoing, and (ii) does not subject the Indemnified Party to
any additional obligation, whether financial or otherwise. In the event
that any such settlement does not meet the requirements of (i)
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and (ii) above, then the Indemnified Party must consent to such settlement
in writing, which consent shall not be unreasonably withheld, conditioned
or delayed. The Indemnified Party may participate in the defense of a Claim
with counsel of its own choosing at its cost and expense.
15.9. IN NO EVENT SHALL ANY PARTY HAVE ANY LIABILITY TO ANY OTHER PARTY FOR ANY
INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, ENHANCED OR
SPECIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, ARISING OUT OF OR IN ANY
MANNER RELATING TO THIS AGREEMENT, THE PERFORMANCE OR BREACH HEREOF OR THE
SUBJECT MATTER HEREOF, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF, OR
OTHERWISE MIGHT OR SHOULD HAVE ANTICIPATED, THE POSSIBILITY OR LIKELIHOOD
OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SUB-SECTION
SHALL APPLY REGARDLESS OF THE FORM OF ACTION IN WHICH A CLAIM IS BROUGHT,
WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE OF ANY
KIND, WHETHER ACTIVE OR PASSIVE), WARRANTY, STRICT LIABILITY OR ANY OTHER
LEGAL OR EQUITABLE GROUNDS, AND SHALL SURVIVE FAILURE OF AN EXCLUSIVE
REMEDY.
15.10. Middle Office Services Limitations on Liability. In addition to the
provisions set forth herein above at sub-section 15.1 to sub-section 15.9,
the following limitations on liability apply to State Street's performance
of Middle Office Services. For the sake of clarity, the limitations listed
herein do not apply to State Street's provision of Front Office Technology
Services, which are set forth in sub-section 15.11. Further, the
limitations set forth in this sub-section 15.10 apply in addition to, and
not in lieu of, the provisions set forth in sub-section 15.1 to sub-section
15.9.
15.10.1. State Street shall have no liability for the operation or
functionality of any Third Party data access or communication software
(excluding any such software which forms part of the In-Scope
Technology) that State Street is required to use in order to send or
receive electronic instructions or transmissions of data and
information to or from Third Parties, including, without limitation,
Third-Party Service Providers.
15.10.2. State Street's failure to provide the Middle Office Services in
accordance with the terms of this Agreement shall be excused, and
State Street shall have no liability on account thereof, to the extent
that such failure results from a Manager's failure to fulfill its
obligations hereunder.
15.11. Front Office Technology Services Limitations on Liability. In addition to
the provisions set forth herein above at sub-section 15.1 to sub-section
15.9, and subject to sub-section 3.5, the following limitations on
liability apply to State Street's provision of Front Office Technology
Services. For the sake of clarity, the limitations listed herein do not
apply to State Street's performance of Middle Office Services, which are
set forth in Section 15.10. Further, the limitations set forth in this
sub-section 15.11 apply in addition to, and not in lieu of, the provisions
set forth in sub-section 15.1 to sub-section 15.9.
15.11.1. State Street shall have no liability for the accuracy,
completeness or timeliness of any Manager Data or for any decision
made or action taken by a Manager in reliance upon any Manager Data or
other information obtained from Linedata and/or Linedata's technology
and/or systems. Each Manager severally, but not jointly, shall hold
State
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Street harmless from and against any Damages resulting from or caused
by any such decision or action made or taken in reliance upon such
Manager Data.
15.11.2. State Street shall have no liability and shall be held harmless
and indemnified against any Damages resulting from the unavailability
of or latencies attributable to the Internet or other public
telecommunications infrastructure or use of the Front Office
Technology Service or Linedata technology in any manner other than
that set forth in this Agreement.
15.11.3. State Street shall have no liability for the operation or
functionality of the Linedata technology and systems, provided,
however, that in the event that a Manager cannot access the Linedata
technology and/or systems, the Manager shall communicate same to State
Street and State Street shall use reasonable diligence to cause
Linedata to restore the Linedata technology and/or systems, as
applicable as soon as reasonably practicable.
In the event the Linedata technology and/or systems are not available
for a period of ten (10) consecutive business days, State Street may
terminate the appointment of Linedata and the Parties shall have a
commercially reasonable period, not to exceed ten (10) business days,
to mutually develop an alternative arrangement for the use of
technology or systems similar to the Lindata technology and systems.
In the event the Parties cannot, after ten (10) business days,
mutually agree upon an alternative arrangement for the use of
technology or systems similar to the Linedata technology and systems,
a Manager may terminate this Agreement only with respect to the
Services provided to it in accordance with Section 27.3.2.4.
15.11.4. State Street's failure to provide the Front Office Technology
Services in accordance with the terms of this Agreement shall be
excused, and State Street shall have no liability on account thereof,
to the extent that such failure results from a Manager's failure to
fulfill its obligations hereunder.
15.11.5. Each Manager and State Street acknowledge and agree that each
Manager's sole remedy for a failure of Front Office Technology Service
access and failure of the Front Office Technology Service to perform
as warranted as set forth in Section 5.9, subject to sub-section
15.11.3, above, shall be the correction of any such failure within a
commercially reasonable period.
15.11.6. Each Manager and State Street acknowledge and agree that State
Street's aggregate liability for Damages relating to the failure of
the Front Office Technology Services shall not exceed an amount equal
to the sum of (i) all fees paid by State Street to its front office
technology provider in relation to the Services provided hereunder
during the twelve (12) month period preceding the date of the Claim
giving rise to Damages (the "Liability Cap Measurement Period") and
(ii) the Fee Savings. In the event that State Street invokes this
Section 15.11.6, State Street shall provide a certification with
respect to the amount of the Fee Savings. As used herein, "Fee
Savings" shall mean an amount equal to any savings realized by State
Street during the Liability Cap Measurement Period as a direct result
of any reduction to the monthly charge payable by State Street to its
front office technology provider relative to the monthly charge that
is payable for the services hereunder as of the date of this
Agreement.
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15.11.7. Each Manager, jointly and not severally, shall be liable for the
Manager Data provided in connection with Front Office Technology
Services that: (a) infringes or violates any intellectual property
rights, publicity/privacy rights, laws or regulation, or is
defamatory, harmful to minors, obscene or child pornographic; (b)
contains any viruses or programming routines intended to damage,
surreptitiously intercept or expropriate any system, data or personal
information; or (c) is materially false or misleading.
15.11.8. Each Manager, jointly and not severally, shall indemnify and hold
State Street harmless from and against any and all losses, costs,
damages, liabilities or expenses (including without limitation,
reasonable attorney's fees) arising from any third party claim
resulting from its misuse or use of the Front Office Technology
Services.
16. FORCE MAJEURE EVENT
16.1. If a Party is prevented, hindered or delayed from or in performing any of
its obligations under this Agreement by a Force Majeure Event (as defined
below) then:
16.1.1. its obligations under this Agreement shall be suspended for so long
as the Force Majeure Event continues but only to the extent that it is
so prevented, hindered or delayed;
16.1.2. as soon as reasonably practicable after commencement of the Force
Majeure Event it shall give notice in writing of the occurrence of the
Force Majeure Event, the date of commencement of the Force Majeure
Event and the effects of the Force Majeure Event on its ability to
perform its obligations under this Agreement; and
16.1.3. as soon as reasonably practicable after the cessation of the Force
Majeure Event it shall give notice in writing of the cessation of the
Force Majeure Event and shall resume performance of its obligations
under this Agreement.
16.2. For the purposes of this Section 16 and sub-section 15.6, "Force Majeure
Event" means any event beyond the reasonable control of a Party including,
without limitation, acts of God, war, terrorist action, riot, civil
commotion, rebellion, general labor stoppage, interruptions in
telecommunications or utilities services, acts of any government,
regulatory or any other competent authority or compliance with any law or
governmental or regulatory order, rule, regulation or direction. For
avoidance of doubt, provided that State Street has exercised reasonable
care and diligence and complied with its obligations under sub-section 15.3
and Section 16 below, a Force Majeure Event shall include any failure,
malfunction or error of any Third Party telecommunications, computer,
network, or other electrical, mechanical or technological application,
service, network connectivity, other interconnection problems, theft,
unauthorized access, operator error or system or any computer virus to the
extent the same is beyond State Street's reasonable control.
16.3. Each Party hereto shall use all reasonable efforts to mitigate the effects
of any Force Majeure Event.
16.4. After ninety (90) consecutive days of a Force Majeure Event affecting
State Street, each Manager may, in its sole discretion, terminate its
obligations hereunder without further liabilities.
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17. CONTINGENCY MEASURES
17.1. State Street shall at all times maintain and regularly test the adequacy
of business contingency and disaster recovery plans that include the use of
a back-up facility and systems, documented recovery plans covering all
areas of operations, vital records protection and identification of
alternative service providers. State Street shall take commercially
reasonable measures to maintain and periodically test its back-up facility
and systems for its use following the occurrence of an event that results
in an interruption or suspension of the Services.
17.2. State Street shall at all times employ a current version of one of the
leading commercially available virus detection software programs to test
the hardware and software applications used by it to deliver the Services
for the presence of any computer code designed to disrupt, disable, harm,
or otherwise impede operation.
18. INTERNAL CONTROLS REVIEW
State Street shall retain a firm of independent auditors to perform an
audit by the end of the first full calendar year following the Effective
Date and at least every twelve (12) months thereafter of the internal
controls and procedures employed by State Street in the performance of the
Services and to issue a detailed report thereon. Such audit will meet the
standards of the American Institute of Certified Public Accountants'
Statement on Auditing Standards No. 70, Reports on the Processing of
Transactions by Service Organizations ("SAS 70"). State Street shall
promptly deliver to each Manager a copy of each such report upon request.
19. INSURANCE
State Street (or an Affiliate) shall at all times maintain in force
insurance coverage relating to the provision of the Services by State
Street hereunder. Insurance shall be carried in such amounts and shall
cover such risks as State Street (or such an Affiliate) shall, in its
discretion, deem reasonable and appropriate taking into account the nature
of its business, the associated risks and the cost and availability of
insurance. A memorandum outlining State Street's insurance coverages as of
the date hereof is attached as Exhibit 2 hereto.
20. FEES AND EXPENSES
In consideration for the provision of the Services by State Street, each
Manager shall pay to State Street the fees and shall reimburse State Street
for the expenses set forth in the Middle Office Services and Front Office
Technology Services fee schedules (together, the "Fee Schedules") attached
hereto, in the case of the Initial Manager, or attached to the applicable
Instrument of Accession of any other Manager. Notwithstanding the
foregoing, unless otherwise agreed by State Street and each Manager, each
Manager shall pay the fees in the Front Office Technology Services Fee
Schedule to Linedata directly. State Street hereby retains the right to
renegotiate the Fee Schedules in the event of a change in a Manager's
investment activity (including strategy, techniques, transactions or
volumes), business locations, technology architecture or operational
processes that results in (i) a material increase in the resources required
by State Street to provide the Services, (ii) a material increase in the
cost of providing the Services or (iii) a material reduction in the net
revenue received by State Street for the provision of the Services.
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21. TAXES
21.1. Each Manager shall be responsible for any sales, use, excise, value-added,
services, consumption, withholding or other similar tax that is assessed on
the provision of the Services (or any part thereof) hereunder except for
any tax imposed on the net income of State Street. If any deduction or
withholding on any payment due to State Street hereunder is required by
law, each Manager will pay such additional amounts as may be necessary in
order that the net amounts received by State Street, after such deduction
or withholding, will equal the amounts that would have been received had no
such withholding or deduction been required; provided, that the obligation
of the Manager to pay such additional amounts will not apply to any
deduction or withholding for any tax imposed on the net income of State
Street.
21.2. In the event that a sales, use, excise, value added, services,
consumption, withholding or other similar tax is payable on the provision
of one or more parts of the Services, the relevant Manager and State Street
shall segregate the fees payable in respect of the Services into separate
payment streams for taxable Services and non-taxable Services.
22. RELATIONSHIP MANAGERS
22.1. Following the signing of this Agreement, State Street and each Manager
shall each appoint a relationship manager (each, a "Relationship Manager").
At their election, some or all of the Managers may appoint a single
Relationship Manager to represent such Managers. The Relationship Managers
shall meet on a regular basis, no less frequently than quarterly, unless
otherwise mutually agreed. Any meeting of the Relationship Managers may be
held in person, by telephone, teleconference or in any other manner as the
Relationship Managers shall mutually agree upon.
22.2. State Street shall provide to the Relationship Managers copies of the
Monthly Services Reports showing the performance levels achieved by the
Parties in discharging their obligations under the Service Level
Agreements.
22.3. The Relationship Managers shall be responsible for oversight of the
performance of the Services;
22.3.1. oversight of the performance by State Street, each Manager and
Third Parties of their duties under the Service Level Agreement;
22.3.2. determining when and where revisions need to be made to this
Agreement and to the Service Level Agreement(s) to more adequately
meet or address the service requirements of the Managers from time to
time;
22.3.3. determining when (i) a new or additional service, (ii) a
modification of or change in any of the Services, (iii) a change in
the means or manner in which the Services are provided or (iv) a
change in the location from or to which the Services are provided, is
necessary as a result of changes in any applicable law or regulation;
and
22.3.4. resolution of disputes referred to the Relationship Managers
pursuant to sub-sections 4.7 and 7.4 above.
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23. REPRESENTATIONS AND WARRANTIES OF STATE STREET
23.1. State Street represents and warrants to each Manager that:
23.1.1. it is a trust company validly existing under the laws of the
Commonwealth of Massachusetts, and has all requisite corporate power
and authority to undertake and perform its duties and obligations
under this Agreement;
23.1.2. it has taken all necessary corporate action to authorize the
execution and delivery of this Agreement and the performance of its
obligations hereunder;
23.1.3. when duly executed and delivered, the Agreement will constitute a
valid and binding obligation of State Street enforceable against State
Street in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or
similar laws and except as enforceability may be subject to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law);
23.1.4. the execution and delivery of this Agreement and the performance by
State Street of its obligations hereunder will not (i) conflict with
any provision of its constitutive documents, (ii) conflict with or
constitute a material breach of or default (with or without notice or
lapse of time or both) under any provision of any document, instrument
or agreement to which State Street is a party or by which it may be
bound, or (iii) conflict with or violate any law, rule or regulation
or any judgment, order, writ, injunction or decree to which State
Street is a party or by which it may be subject or bound;
23.1.5. there are no actions, suits, proceedings or investigations at law
or in equity before or by any regulatory authority or judicial or
administrative court or agency, pending or threatened against State
Street in which an unfavorable decision, ruling or finding against
State Street would impair State Street's ability to perform its duties
and obligations under this Agreement;
23.1.6. except as obtained and in effect on the date hereof, no consents,
authorizations, approvals, licenses or filings are required by State
Street from or with any regulatory authorities in connection with the
execution and delivery of the Agreement and the performance by State
Street of its obligations hereunder; and
23.1.7. to the extent that U.S. federal securities laws apply to State
Street in its performance of the Services, the core operating policies
and procedures of State Street which are subject to those federal
securities laws and which relate to the Services are reasonably
designed to prevent and/or detect violations of U.S. federal
securities laws.
24. REPRESENTATIONS AND WARRANTIES OF EACH MANAGER
24.1. Each Manager represents and warrants to State Street (on a several and not
joint basis) that:
30
24.1.1. it is a duly constituted, validly existing and in good standing
under the laws of its jurisdiction of formation and has all requisite
corporate power and authority to undertake and perform its duties and
obligations under this Agreement;
24.1.2. it has taken all necessary action to authorize the execution and
delivery of this Agreement and the performance of its obligations
hereunder;
24.1.3. when duly executed and delivered, the Agreement will constitute a
valid and binding obligation of the Manager enforceable against the
Manager in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or
similar laws and except as enforceability may be subject to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law);
24.1.4. the execution and delivery of this Agreement and the performance by
the Manager of its obligations hereunder will not (i) conflict with
any provision of its constitutive documents, (ii) conflict with or
constitute a breach of or default (with or without notice or lapse of
time or both) under any provision of any document, instrument or
agreement to which the Manager is a party or by which it may be bound,
or (iii) conflict with or violate any law, rule or regulation or any
judgment, order, writ, injunction or decree to which the Manager is a
party or by which it may be subject or bound;
24.1.5. there are no actions, suits, proceedings or investigations at law
or in equity before or by any regulatory authority or judicial or
administrative court or agency, pending or threatened against the
Manager in which an unfavorable decision, ruling or finding against
the Manager would impair the Manager's ability to perform its duties
and obligations under this Agreement; and
24.1.6. except as obtained and in effect on the date hereof, no consents,
authorizations, approvals, notifications, licenses or filings are
required by the Manager from or with any regulatory authorities in
connection with the execution and delivery of the Agreement and the
performance by the Manager of its obligations hereunder.
25. CONFIDENTIALITY
25.1. All Confidential Information provided by State Street or a Manager shall
be used by the other Party solely for the purpose of rendering or receiving
Services, as the case may be, pursuant to this Agreement or otherwise
discharging its obligations hereunder and, except as may be required to
carry out this Agreement, shall not be disclosed to any Third Party without
the prior consent of the Party providing the information. For avoidance of
doubt, nothing in this sub-section 25.1 shall prohibit State Street from
disclosing Confidential Information to its Delegate(s) provided each such
Delegate is bound in writing by the same restrictions regarding ownership,
use and disclosure of such information as if it were State Street
hereunder. Nothing herein shall be construed to prohibit State Street or a
Manager from disclosing Confidential Information when and to the extent
required to do so by any regulatory authority, by judicial or
administrative process or otherwise by applicable law, rule or regulation,
provided and if permitted by law, the disclosing Party has notified the
other Parties of such requirement to disclose and has cooperated with the
other Parties' efforts to resist, limit or delay disclosure.
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25.2. Notwithstanding the foregoing, and subject to laws and regulations
relating to privacy and protection of consumer information, State Street
may aggregate Customer Data with similar data of other State Street
customers and may use such aggregated data for purposes of constructing
statistical models so long as such aggregated data is sufficiently large a
sample that no Customer Data can be identified either directly or by
inference or implication.
25.3. Each Party acknowledges that the disclosure to any non-authorized Third
Party of Confidential Information or the use of Confidential Information in
violation of this Agreement, will immediately give rise to continuing
irreparable injury inadequately compensable in damages at law, and that the
affected Party is thereby entitled to seek and obtain immediate injunctive
relief against any such disclosure or any threatened disclosure.
25.4. State Street shall maintain during the Term a commercially reasonable
information security program to protect Customer Data, which program shall
include administrative, technical, and physical safeguards that are
designed: (i) to ensure the security and confidentiality of Customer Data;
(ii) to protect against any anticipated threats or hazards to the security
or integrity of such Customer Data including appropriate measures designed
to meet guidelines under U.S. law with respect to non-public personal
information and that require the implementation of a security system as
described below; and (iii) to protect against unauthorized access to or use
of Customer Data.
25.5. If any literature, including, but not limited to, brochures, advertising
materials, web site contents and marketing materials, issued by or on
behalf of a Manager contains any reference to State Street (other than
literature merely identifying State Street as providing investment
administration services to the Manager) or if any such literature issued by
State Street contains any reference to a Manager (other than literature
merely identifying a Manager as a customer of State Street), then the
relevant Manager or State Street, as the case may be, will obtain the other
Party's prior written consent to such reference before its publication in
any form. No Party to this Agreement shall use the service marks or
trademarks of another Party without its prior written consent.
26. RECORDS AND AUDIT RIGHTS
26.1. State Street is authorized to maintain all records, accounts, registers,
books and other documents and information on magnetic tape or disc or in
accordance with any other mechanical or electronic system provided that
they are capable of being reproduced in legible form in accordance with
applicable laws.
26.2. State Street agrees that all Customer Data it maintains for a Manager
shall at all times remain the property of the Manager, shall be readily
accessible during normal business hours, and shall be promptly surrendered
upon the termination of this Agreement or otherwise on written request.
State Street further agrees that all Customer Data that it maintains for a
Manager will be preserved for a period of seven years, unless any such data
is earlier surrendered as provided above. Customer Data shall be
surrendered in usable machine-readable form. For avoidance of doubt,
archived Customer Data not maintained by State Street as part of the
then-current electronic account records in respect of the Investment
Accounts shall not be surrendered upon termination and shall be retained by
State Street subject to and in accordance with the terms of Sections 25 and
26; provided, however, that State Street agrees to provide such archived
32
Customer Data to a Manager promptly upon request by such Manager. State
Street shall have the right to retain copies of all Customer Data subject
to observance of its confidentiality obligations under this Agreement.
26.3. To the extent required by applicable law, rule or regulation and upon
request of a Manager (which shall include reasonable advance notice), State
Street shall allow a Manager's regulators or supervisory authorities to
perform periodic on-site audits as may be reasonably required to examine
State Street's performance of Services and State Street's internal
controls, security and disaster recovery plans and systems.
26.4. Upon request of a Manager (which shall include reasonable advance notice),
State Street shall allow such Manager and its auditors (including internal
audit staff and external auditors) and compliance personnel to perform
periodic on-site audits as may be reasonably required to examine State
Street's performance of Services and State Street's internal controls,
security and disaster recovery plans and systems.
26.5. Notwithstanding the audit and inspection rights conferred by sub-section
26.4, State Street reserves the right to impose reasonable limitations on
the number, frequency, timing and scope of audits and inspections requested
by the Managers pursuant to sub-section 26.4 so as to prevent or minimize
any potential impairment or disruption of its operations, distraction of
its personnel or breaches of security or confidentiality; provided,
however, that State Street may not limit the number, frequency or timing of
audits and inspections by regulatory bodies with supervisory authority over
a Manager. In addition, State Street shall be entitled to impose a
commercially reasonable per person hourly charge for the cooperation and
assistance of its personnel in connection with any audit in excess of two
(2) in any twelve (12) month period; provided, however, that no such charge
may be imposed in connection with any audit or inspection by any regulatory
body with supervisory authority over a Manager. Nothing contained in
Section 26 shall obligate State Street to provide access to or otherwise
disclose: (i) any information that is unrelated to the relevant Manager and
the provision of the Services to such Manager; (ii) any information which
is treated as confidential under State Street corporate policies,
including, without limitation, internal audit reports, compliance or risk
management plans or reports, work papers and other reports and information
relating to management functions; or (iii) any other documents, reports or
other information that State Street is obligated to maintain in confidence
as a matter of law, rule or regulation. In addition, any access provided
hereunder to technology shall be limited to a demonstration by State Street
of the functionality thereof and a reasonable opportunity to communicate
with State Street personnel regarding such technology.
27. TERM; TERMINATION
27.1. This Agreement shall become effective as of the Effective Date, shall
continue in full force and effect for an initial term of three (3) years
(the "Initial Term") and shall automatically renew for an additional one
year term from year to year thereafter unless otherwise terminated in
accordance with the provisions of this Section 27.
27.2. Upon termination of this Agreement with respect to a Manager, such Manager
shall pay to State Street upon demand fees and reimbursable costs, expenses
and disbursements then due and payable to State Street hereunder as of the
date of such termination.
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27.3. A Manager may terminate the appointment of State Street as to itself only
and pursue any remedies available to it:
27.3.1. following expiration of the Initial Term, by giving not less than
180 days' notice in writing to expire at any time.
27.3.2. with immediate effect at any time prior to or subsequent to the
expiry of the Initial Term if:
27.3.2.1. State Street shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its
debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or
against State Street seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it
or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, or
other similar official for it or for any substantial part of its
property; or State Street shall take any corporate action to
authorize any of the preceding actions;
27.3.2.2. State Street shall commit any material breach hereunder,
which breach, although capable of remedy, has not been remedied
by State Street within thirty (30) days of written notice by a
Manager;
27.3.2.3. State Street has consistently failed to meet its duties and
obligations under the relevant Service Level Agreement in a
material respect and such failure has not been resolved by the
Relationship Managers or the Executive Officers in accordance
with sub-section 7.6 above; or
27.3.2.4. in accordance with sub-section 15.11.3, the Parties are not
able to, within the time frames specified in that sub-section,
mutually agree upon an alternative arrangement for the provision
of technology and systems similar to the Linedata technology and
systems.
27.3.3. A Manager may terminate this Agreement with effect on the expiry of
the Initial Term by giving ninety (90) days prior written notice,
provided, however, that termination of the Services by the Initial
Manager shall be deemed to be a termination of this Agreement by every
Manager.
27.4. Subject to sub-sections 27.5 and 27.6 below, State Street shall be
entitled to resign its appointment hereunder in respect of a Manager:
27.4.1. following expiration of the Initial Term, by giving not less than
270 days' notice in writing to the Manager to expire at any time.
27.4.2. with immediate effect any time prior to or subsequent to the expiry
of the Initial Term if:
34
27.4.2.1. such Manager shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its
debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or
against the Manager seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it
or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, or
other similar official for it or for any substantial part of its
property; or the Manager shall take any corporate action to
authorize any of the preceding actions;
27.4.2.2. such Manager shall commit a material breach of this
Agreement, which breach has not been remedied by the Manager
within thirty (30) days of written notice by State Street;
27.4.2.3. the Manager has consistently failed to meet its obligations
and duties under the relevant Service Level Agreement in a manner
that impairs State Street's ability to provide the Services and
such failure has not been resolved by the Relationship Managers
or Executive Officers in accordance with sub-section 7.6 above;
or
27.5. Upon notice of termination of this Agreement with respect to a Manager,
State Street and such Manager, or Managers, as the case may be, shall
cooperate to effect an orderly transition of State Street's duties and
responsibilities hereunder to a new service provider selected by the
Manager or to the Manager as soon as reasonably practicable. Such
cooperation shall include the development and implementation by the Parties
of a conversion plan for the orderly migration of the Services. If such
cooperation by State Street requires State Street to use resources in
addition to the resources then regularly used in the performance of the
Services, then the Manager(s) shall pay State Street for such additional
resources at commercially reasonable rates.
27.6. Subject to the order, consent or approval of any bankruptcy court or other
governmental authority, if so required, a Manager may elect, by written
notice to State Street delivered within fifteen (15) days of notice of
termination of this Agreement by any Party with respect to such Manager, to
have this Agreement remain in effect for an additional one hundred and
twenty (120) day period (the "Extension Period") after the termination
date. During the Extension Period, State Street shall perform such services
as the Parties in good faith agree are reasonably necessary to facilitate
the orderly transition of the Services to the successor service provider or
to the Manager (the "Extension Period Services"). The Extension Period
Services shall be provided under the terms and conditions, and subject to
payment of the fees and charges, applicable to the performance of Services
under this Agreement on the date of notice of termination (or, with respect
to any services that are not then Services, as may be agreed to by the
Parties in good faith); provided, that, State Street shall have the right
to condition its performance of the Extension Period Services on the
provision by the Manager of some assurance of payment reasonably
satisfactory to State Street (including without limitation the delivery to
State Street of a letter of credit or the establishment by the Manager of
an escrow account at a reputable bank in a sufficient amount to guarantee
the Manager's payment of the fees for the Extension Period Services). If
the Manager requests that State Street further extend the Extension Period,
State
35
Street may at its sole discretion, but is not obligated to, agree to a
further extension of the Extension Period upon such terms and conditions,
and subject to payment of such fees and charges, as may be mutually agreed.
27.7. In the event this Agreement is terminated by State Street pursuant to
sub-section 27.4.2.1 or otherwise for non-payment of fees, State Street's
provision of Extension Period Services shall be subject to the prior
payment by the relevant Manager(s) of all outstanding amounts due to State
Street under this Agreement. State Street may also require, at its sole
discretion, the posting of a bond or other surety to guarantee payment of
State Street's anticipated charges and reimbursable expenses associated
with its provision of the Extension Period Services.
28. NOTICES
All notices, requests, demands and other communications under this
Agreement (other than routine operational communications and Proper
Instructions received in accordance with an agreed Authentication
Procedure) shall be in writing and shall be deemed duly given (i) when
delivered by hand, (ii) when delivered by facsimile (provided that
confirmation of receipt is obtained), (iii) on the next business day after
being sent by overnight courier service for next business day delivery, or
(iv) on the third business day after being sent by certified or registered
mail, return receipt requested, in each case to the applicable Party at the
address or facsimile number specified below or in an Instrument of
Accession (or such other address or facsimile number as a Party may specify
by written notice in accordance with this Section 28 from time to time):
If to State Street: State Street Bank and Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Executive
Vice President
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
State Street Bank and Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to a Manager c/o: ▇▇▇▇▇▇ Global Investments, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Chief
Operating Officer
Facsimile: ▇▇▇- ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ Global Investments, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇- ▇▇▇-▇▇▇▇
36
29. RECORDED LINES
State Street and its Affiliates reserve the right to record by any means
and to maintain a record of all or any part(s) of any telephone
conversations between (i) State Street, its Affiliates and/or Delegates
and/or employees of same and (ii) the Managers, its employees and/or agents
or Customers, and that any such recordings may be submitted in evidence to
any court or in any legal proceeding for the purpose of establishing any
matters pertinent to this Agreement. Incoming or outgoing calls made on
recorded lines may contain an announcement indicating that the line is
being recorded.
30. NON-EXCLUSIVITY
30.1. The services of State Street to the Managers hereunder are not to be
deemed exclusive and State Street and its Affiliates shall be free to
render similar services to others and to retain for their own use and
benefit all fees or other monies payable thereby and neither State Street
nor any Affiliate shall be deemed to be affected with notice of or to be
under any duty to disclose to the Managers any fact or thing which comes to
their notice in the course of rendering similar services to others or in
the course of their business in any other capacity or in any manner
whatsoever otherwise than in the course of carrying out their duties
hereunder, if any.
30.2. Subject to applicable securities laws and regulations and to the
confidentiality obligations under this Agreement, nothing contained herein
shall prevent State Street or any Affiliate from buying holding and dealing
in any assets upon its own account or the account of others notwithstanding
that similar assets may be held by State Street or any Affiliate for the
account of a Manager.
31. NO PARTNERSHIP OR AGENCY
Except as otherwise provided in Section 12, nothing in this Agreement shall
be construed as creating a partnership between State Street and a Manager
or as constituting any Party the agent of another Party for any purpose
whatsoever and no Party shall have the authority or power to bind another
Party or to contract in the name of or create a liability against another
Party in any way or for any purpose.
32. FURTHER ASSURANCE
Each Party to this Agreement shall do and execute or procure to be done and
executed all necessary acts, deeds, documents and things reasonably in its
power to give effect to this Agreement.
33. SURVIVAL
The obligations imposed by Section 5 (Use of Technology and Data Access
Services), Section 6 (Proprietary Rights; Work Product), Section 15
(Standard of Care; Limitation of Liability), Section 24 (Confidentiality)
and the provisions of Section 42 (Governing Law) shall survive the
termination of this Agreement for an indefinite period. The obligation of a
Manager to pay State Street any fees accrued prior to the termination of
this Agreement shall survive such termination until fully paid.
37
34. NON-WAIVER; FORBEARANCE
The failure of a Party to insist upon strict adherence to any term of this
Agreement on any occasion or the failure of a Party to exercise or any
delay in exercising any right or remedy under this Agreement (including,
without limitation, any right implied by law) shall not constitute a waiver
of any such term, right or remedy or a waiver of any other rights or
remedies and no single or partial exercise of any right or remedy under
this Agreement shall prevent any further exercise of the right or remedy or
the exercise of any other right or remedy.
35. REMEDIES ARE CUMULATIVE
Except as expressly provided in this Agreement, the rights and remedies
contained in this Agreement are cumulative and not exclusive of any other
rights or remedies provided hereunder, at law, in equity or otherwise.
36. REPRODUCTION OF DOCUMENTS
This Agreement and all schedules, exhibits, attachments and amendments
hereto may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The Parties
hereto each agree that any such reproduction shall be admissible in
evidence as the original itself (subject to any challenge on the grounds
that the reproduction has been altered so that it differs materially from
the original document), in any judicial or administrative proceeding,
whether or not the original is in existence and whether or not such
reproduction was made by a Party in the regular course of business, and
that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
37. VARIATION OF AGREEMENT
No variation, amendment or modification of this Agreement shall be valid as
between State Street and a Manager unless it is in writing and signed by
duly authorized representatives of State Street and the Initial Manager and
approved in writing by State Street's counsel.
38. ASSIGNABILITY
This Agreement may not be assigned by a Party without the prior consent in
writing of the other Party(ies), except that a Party may assign this
Agreement to a successor to all or a substantial portion of its business
(whether by means of assets acquisition, merger, reorganization or similar
corporate transaction) without the consent of the other Party(ies). Any
purported assignment in contravention of this Section shall be null and
void.
39. SUCCESSORS
This Agreement shall be binding on and shall inure to the benefit of each
Manager and State Street and their respective successors and permitted
assigns.
40. SEVERABILITY
38
In the event that any part of this Agreement shall be determined to be void
or unenforceable for any reason, the remainder of this Agreement shall be
unaffected thereby (unless the essential purpose hereof is substantially
frustrated by such determination), and shall be enforceable in accordance
with the remainder of its terms as if the void or unenforceable part were
not a part hereof.
41. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall, when executed and delivered be an original, but all counterparts
taken together shall constitute one and the same agreement.
42. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts without regard to the conflicts
of law principles thereof.
43. ENTIRE AGREEMENT
This Agreement, including the schedules and exhibits hereto and all
Instruments of Accession constitute the entire agreement between State
Street and the Managers on the subject matter hereof and supersede and
terminate as of the date hereof all prior oral or written agreements,
arrangements or understandings between the Parties.
[Remainder of Page Intentionally Blank]
39
SIGNATURE PAGE
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first written above.
STATE STREET BANK AND TRUST COMPANY
By :
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇ GLOBAL INVESTMENTS, INC.
By:
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Operating Officer
40
EXHIBIT 1
Instrument of Accession
Reference is hereby made to the Investment Administration Services Agreement
(the "Agreement") dated March 17, 2008 by and between STATE STREET BANK AND
TRUST COMPANY ("State Street"), ▇▇▇▇▇▇ GLOBAL INVESTMENTS, INC. and each person
which has or shall become a signatory thereto by execution of an instrument of
accession substantially in the form hereof.
In order that it may become a Party to the aforesaid Agreement, including,
without limitation, any and all schedules and exhibits thereto, [Manager Name]
agrees and binds itself to the terms and conditions thereof and acknowledges
that by its execution and delivery of this Instrument it shall assume all of the
obligations and shall be entitled to all of the rights of a Manager (as such
term is defined in the Agreement), as if it were an original Party thereto.
This Instrument of Accession shall take effect and shall become a part of said
Agreement immediately upon its execution and delivery.
Executed as of the date set forth below under the laws of the Commonwealth of
Massachusetts.
[NAME OF MANAGER]
By:__________________________________
Name:
Title:
Accepted and agreed to:
STATE STREET BANK AND TRUST COMPANY
By:__________________________________
Name:
Title:
Date: ____________________________
Include:
[Fee Schedule]
[List of Authorized Persons and Authentication Procedures]
[Service Level Agreement]
[List of Services]
41
42
FRONT OFFICE TECHNOLOGY SERVICES FEE SCHEDULE
TO THE INVESTMENT ADMINISTRATION SERVICES AGREEMENT
BETWEEN STATE STREET BANK AND TRUST COMPANY AND
▇▇▇▇▇▇ GLOBAL INVESTMENTS, INC.
A Trade Order Management System such as Linedata's LongView or comparable ASP
version to be provided to Mercer with necessary communication to/from State
Street within the following parameters:
|X| 10 User licenses
|X| T-1 line to/from Mercer to/from Linedata
|X| Year one development and implementation costs
|X| Telephone and remote access support by Linedata
Fees
o On-site support, including Linedata's out of pocket expenses, of the
Linedata System is provided solely at Linedata's discretion, and will be
billed at rates mutually agreed upon by Mercer and Linedata.
o Material telephone support by Linedata, including post-installation
training, assistance with custom reports and desktop computer
configurations, will be billed at rates mutually agreed upon by Mercer and
Linedata.
Payment of Fees
Mercer shall, within thirty (30) days of the receipt of the relevant invoice
from Linedata, pay all undisputed fees in full to Linedata, without any right of
set-off or deduction. Linedata retains the right to suspend the all support and
services contemplated herein and access to the Linedata Systems in the case
where any undisputed fees are unpaid for more than forty-five (45) days after
they are due and provided fifteen (15) days prior written notice to Mercer prior
to suspension.
User Requirements
Authentication:
Defines the requirement for authenticating a principal to a State Street
Corporation (SSC) resource and the creation of credentials (IDs, passwords,
PINs) necessary for authentication. Applies to all principals accessing SSC's
systems and applications.
a. Each principal must be assigned a unique identification code (User,
System, Administrative or Process ID) and authentication method to
access a system
Password Format
1. Passwords must be different than the user ID
2. Where enforceable, passwords must be a minimum of eight (8)
characters; all other passwords must be a minimum of six characters
3. Strong passwords must be a minimum of eight (8) characters. In order
for a password to be considered strong, the system must support
passwords that are a combination of upper and lower case alpha,
numeric, and special characters and must enforce the use of three of
the preceding four elements by the user. Where technically feasible,
strong passwords must be used
4. Users should choose passwords that cannot be guessed easily
Expiration
1. Passwords associated with an individual user ID may expire every 90
days on platforms or applications that enforce strong passwords. All
other passwords associated with a user ID must expire every 30 days.
Security administrators in each business area must implement
procedures which meet or exceed these requirements
2. Where technically feasible, there must be a mechanism in place for the
user to change his/her password on demand
3. All IDs that can be logged onto by an individual must have expiring
passwords. For system IDs that must be interactive and have a
non-expiring password due to system and/or process limitations, the
approvals of both the owning SVP or equivalent and the ISO for the
area are required
4. Passwords must not be recycled or reused for at least 12 months.
Storage/Encryption
1. Passwords entered for logon must not be displayed
2. Password files for Administrative, Process and System IDs must be
encrypted and stored securely
3. A password associated with a User ID must not be stored in a file
(e.g. scripts, spreadsheets, etc.)
Maintenance
1. When an individual who has access to passwords associated with System
IDs or Process IDs is no longer authorized to have the access, the
passwords should be changed. Security administrators in each business
area must implement procedures which meet or exceed these requirements
2. User ID's must be created with a password that requires the user to
change it upon first use
Access Control:
Defines the requirements for access controls for all users accessing State
Street's systems and applications.
a. Administration of access on data processing platforms and systems
owned, leased or managed by State Street or operated by a third party
on behalf of State Street is limited to those authorized by ▇▇▇▇▇
▇▇▇▇▇▇
▇
b. Authorization of access is limited to employees of State Street on
data processing platform and systems owned, leased or managed by State
Street or operated by a third party on behalf of State Street
c. Controls must exist to ensure that users can only access data for
which they are authorized
d. An individual's computer session, if inactive for a period greater
than 30 minutes, must be re-authenticated or timed out to reduce the
likelihood of unauthorized access
e. Logons by multiple people using the same ID to access production data
are prohibited
f. All unsuccessful attempts to access systems or information must be
logged
Customer Access:
Defines the requirements for granting customer access to the proprietary and
non-proprietary systems of State Street Corporation (SSC). Applies to any access
to SSC's systems, software and data by customers. Applies to a customer's
authorized representative such as an investment manager or third party
information provider, or other authorized designee.
The customer must:
o Establish a unique State Street user ID for each separate user, when
applicable, and never reuse IDs when they become available;
o Inform their customer relationship manager immediately to deactivate
or delete access when no longer needed (e.g., when a user transfers or
terminates, or when they believe security has been breached);
o Inform their employees that they must not share IDs and passwords and
not reuse IDs and passwords when they become available;
o Limit knowledge of user IDs only to authorized individuals;
o Not disclose passwords, directly or indirectly, to anyone, including
other employees of the customer;
o Have information security controls in place that are equivalent to or
exceed State Street Corporation's information security controls.
a. Customers who have remote access to SSC's proprietary and
non-proprietary systems and applications, including any system or
application used by the customer for file and data transfer, are
required to execute a Remote Access Agreement, customer document
or addendum to an existing customer document containing terms and
conditions equivalent to those contained in a Remote Access
Agreement in all material respects as determined by State Street
legal counsel. The agreement must contain the following
provisions with such revisions as are acceptable to State Street
legal counsel:
1. A scope of use of the system and the services with
appropriate prohibitions against unauthorized third-party
access, use of the system in a service bureau environment,
modification of the system, and reverse engineering or
otherwise attempting to obtain the source code for the
system
2
2. An acknowledgement by the customer that the system is
proprietary to SSC or its licensors and agreement to
maintain the confidentiality of the system, documentation
and information
3. The right of SSC to terminate the agreement or access to the
system for security breaches or breach of the customer's
obligations under the agreement and the obligation of the
customer to return all proprietary information to SSC
4. The applicability of Massachusetts law or such laws as may
be approved by senior counsel
Security Administration:
Defines the requirements for administering access to applications and systems.
Applies to individuals responsible for administering security on State Street
platforms and systems.
Management Chain Approval is the authorization of standard access to State
Street applications and applies to the following scenarios:
1. For personnel external to State Street who are not issued a
State Street Global Human Resource authorized person ID
number, the approver can be:
a. The management chain of the person submitting the
request
OR
b. An Senior Vice President authorized standard approver
Access Authorization
a. Senior Vice Presidents (SVPs) of State Street are authorized to
approve access to State Street systems. SVPs may designate State
Street employees to authorize standard or restricted access, but must
do so in writing to the appropriate Security Administration team.
Management chain approval does not require SVP authorization.
b. Business application owners must maintain a list of individuals who
are authorized to approve access to systems or data
c. Managers must notify Global Human Resources and the appropriate
security administrators of the need to modify access when anyone with
access to SSC systems, networks or applications has been terminated,
transferred, promoted, takes a leave of absence, changes job function,
or has any other related change in responsibilities or employment
status. This notification process must occur within two business days
of the change in status
User ID Creation
a. User IDs must be created with a password that requires the user to
change it upon first use
b. The initial password must be randomly selected, unique and consist of
alpha, numeric, upper case and lower case or special characters
c. Passwords must be communicated and distributed in a controlled manner
to prevent disclosure to unauthorized individuals
User ID and Password Maintenance
a. Accounts (user IDs) inactive for a period of more than 60 days must be
suspended
b. After 120 days of inactivity, user IDs must be deleted, unless
management requests in writing that the user ID remain on the system
c. At least two authentication methods must be used to verify the
identity of a user before releasing or resetting a password. Use of an
automated system with pre-selected authentication criteria is
recommended. The following is a list of additional means to
authenticate a user:
3
1. Voice recognition system
2. Confirm the user's place of birth
3. Verify the user's date of birth (month and day)
4. Confirm the user's mother's maiden name
5. Verify the employee's phone extension and leave the new password
in the employee's voice mailbox
6. Call back the individual requesting the password reset at their
own work number
7. PIN (Personal Identification Number)
d. Passwords must be communicated and distributed in a controlled manner
to prevent disclosure to unauthorized individuals
e. Management must, at least annually, review the access levels of their
employees for appropriateness. All system access that is no longer
needed must be revoked
Security Clearance:
Defines security clearance requirements that must be fulfilled prior to allowing
access to State Street facilities and systems. Applies to all individuals
employed by State Street, e.g. part-time and full-time employees, temporary
employees, consultants, contractors and vendors. Any individual with an
unsatisfactory background should not be granted access to facilities or systems
until the matter is resolved with Human Resources & Organizational Performance,
Corporate Security and/or Procurement.
Non-State Street Personnel
a. All newly-assigned non-State Street personnel with system access must
have a standard background investigation initiated and, in the United
States, processed for fingerprints prior to receiving a State Street
access/identification card and/or system access
b. All newly-assigned other non-State Street personnel in the U.S. must
be fingerprinted prior to receiving a State Street
access/identification card and/or system access
Service Provider & Vendor Contracts:
Defines requirements for service provider and vendor contracts. Applies to all
service providers and vendors who enter into contracts with State Street
Corporation or any of its affiliates and subsidiaries. Service Providers and
vendors with access to nonpublic personal information must contractually commit
to implementing appropriate measures to safeguard that privacy of that
information.
a. Managers who negotiate contracts are responsible for ensuring that
Vendor and Service Provider contracts contain language which states
that the Vendor or Service Provider has information security controls
in place that are equivalent to or exceed State Street Corporation's
information security controls
Electronic Communications:
Defines the requirements for access, use, and content of electronic messages
through State Street's electronic communications systems. Applies to all e-mail
products used, managed or maintained by State Street Corporation.
a. An electronic communication method may not be used to initiate,
modify, or in any other way effect the execution of financial
transactions. Financial transactions, as defined for this standard,
are those instructions that result in the movement of funds,
securities and other assets.
Remote Access - Dial Up:
Defines the requirements for accessing internal State Street resources from or
through any network environment that is not fully trusted by State Street. This
includes, but is not limited to, access via
4
Internet, dial-up, WAN connections over public infrastructure, public wireless
networks (including Blackberry, WiFi, PCS, GSM and CDMS networks). Applies to
all internal State Street resources.
a. All remote access users must be authenticated by a State Street
enterprise supported multi-factor authentication method before
obtaining access to any internal State Street resource.
b. Each principal with remote access must have its own unique ID and
credentials. Group access user IDs are not permitted
c. Access shall only be granted to the specific resources to which the
principal is entitled and which are allowed via the particular access
method
d. All remote access must be authorized by State Street and use a CIS
approved remote access method. Individuals must not establish
unauthorized remote access using their own personal means (e.g.,
modems, software, etc.)
Information Classification:
Defines the standard requirements for classifying and properly labeling
information in order to establish appropriate levels of protection equivalent to
the information's value to the corporation. Applies to all information
maintained or contained within State Street.
Classifications
General - Information that has been determined by State Street and its customers
to be available for public distribution or is already available in the public
domain. General information is not sensitive in context or content.
Company Internal - Non-public information that bears no material risk if
disclosed to employees or authorized third parties. Examples include HR
policies, internal all staff memoranda and company policies and standards
Limited Access - Information that can be accessed only by those who
"need-to-know".
Confidential - Information which is designated as such by a business unit or to
which access is required by law, statute, contract or regulation to be limited
to authorized individuals; it is proprietary in nature and/or highly sensitive
so that disclosure may cause legal or financial ramifications. Examples include
Non-Public Personal Information (NPPI) for employees, or customers, customer
data, instructions to move money, trades, portfolio transfers and changes in
instruction data.
Highly Confidential - Corporate information which, if disclosed to unauthorized
persons (internal or external), could cause material harm to the corporation.
Examples of highly confidential information include but are not limited to;
earnings and merger & acquisition information, any information that could result
in the loss of competitive advantage or reputation. Information with this
classification may only be sent to named individuals who have been designated as
a recipient of the particular highly confidential information.
Information Classification
a. All corporate information must be classified into one of the five
classifications
b. If the classification of information is unknown, the information must
be treated as Confidential until the proper classification is
determined
c. State Street classifies corporate information as one of the following:
Highly Confidential, Confidential, Limited Access, Company Internal or
General
d. Corporate information must be appropriately labeled, distributed,
stored and disposed of according to its classification
5
Information Classified above General
Highly Confidential, Confidential, or Company Internal, Limited Access must not
be released to customers, their agents (i.e., public accountants, consultants,
etc.) or their regulators, except under the following conditions:
a. Information may be made available to customers or their authorized
agents as required to fulfill Customer Agreements. Information
requested that is not a part of the Customer Agreement requires the
approval of the business area designee(s) and, if the information is
requested by the agent, the customer's approval. This assumes the
requested information is owned by the customer making the request.
b. Information requested by agencies regulating State Street's customers
may be released to those agencies only after the responsible State
Street business area designee(s) has approved and ensured that the
information is reviewed before release.
c. Unless prohibited by law or regulation, information will not be
released to third parties unless a confidentiality agreement, approved
by State Street Legal Department, has been signed.
Acceptable Use of Information Technology Resources:
Defines users' responsibilities in safeguarding the integrity of information
technology resources and data owned, leased or managed by SSC, to ensure that
their use complies with SSC policies and standards and to protect information
owned by SSC and its customers.
a. Users agree to abide by all relevant SSC policies, standards and
procedures as well as current country, federal, state and local laws
when using State Street resources
b. CIS-201 Electronic Communications establishes the definition of and
standard for all electronic communications at State Street and must be
adhered to. State Street reserves the right to determine the
appropriateness of data transmitted by the use of information
technology resources
c. Users should have no expectation of privacy or confidentiality when
using State Street information technology resources. Monitoring State
Street information technology resources for policy, standards,
security and/or network management reasons will be conducted by
authorized personnel only
d. When users put SSC owned information or data on non-SSC equipment, it
must be protected with the same level of security, confidentiality and
integrity as it would have received on SSC owned resources
e. Data owners are required to assign the information classification(s)
of their data pursuant to CIS-301 and ensure that the appropriate
security is implemented and enforced in a method consistent with
relevant SSC policies, standards and procedures including change
management and firecall procedures
f. State Street Corporate Security has an obligation to report any
illegal activities or violations of the law to the appropriate
authorities
g. Users are prohibited from placing State Street information in any
public place including, but not limited to, the Internet, blogs,
Internet distribution list posting and personal web pages
Conditions of Use
1. Use only resources that they have been specifically authorized to use,
2. Use only his/her own account and password and not to share his/her
account and password with another person,
3. Access only files, data or processes that he/she is authorized to
access,
4. Avoid circumventing State Street security, compliance or monitoring
mechanisms
5. Avoid intentionally releasing a virus or worm that damages or ▇▇▇▇▇ a
system or network,
6. Use SSC services and information only for their intended purpose,
7. Avoid preventing others from accessing an authorized service,
8. Not deliberately degrade performance or deny service,
6
9. Not corrupt or misuse information,
10. Alter or destroy information only with proper authorization,
11. Safeguard all confidential or proprietary information which includes,
but is not limited to: financial information, confidential client
information, marketing strategies and plans, databases and any
information contained therein, client lists and holdings information,
computer software source code, and computer/network access codes
12. Not use State Street information technology resources, including
computers, software, proprietary information, and telecommunications
equipment in connection with any employment or other business activity
not related to State Street business
Intellectual Property:
Defines the requirements for the security of intellectual property owned by
State Street as well as third parties.
Requirements for State Street's Intellectual Property
a. Customers may be granted access to SSC intellectual property only in
accordance with CIS standards. Approval to use or modify SSC
intellectual property must come from the appropriate business unit EVP
and must be signed-off on by the Corporate Legal department.
b. All customers who require remote access to SSC's systems, software or
data (including any third party or vendor provided systems, software
or data accessed through SSC's systems or software) shall execute
SSC's standard Remote Access Services Agreement, or a customer
agreement containing appropriate access language or other agreement
approved by counsel, whereby the customer agrees to comply with remote
access operating standards and procedures, with user identification or
other password control requirements and other security procedures as
well as certain usage restrictions required by SSC's third party
vendors
Requirements for Third Party Intellectual Property
a. Users accessing licensed third party intellectual property, including
software applications and information data must comply with
restrictions on usage contained in the applicable license or usage
agreement including restrictions on the number or type of users,
location of use, hardware, servers, capacity and permitted usage of
the application or data. In addition, full time, part time and
temporary employees as well as contractors and consultants of SSC must
also comply with SSC standards, the Standard of Conduct and
requirements of applicable law
b. Before using software, users are responsible for being aware of the
license agreement for the software they are utilizing. Users must
refrain from taking any of the following actions related to both
existing and new IP:
1. Copying any software item by any means, including computer,
photocopy or handwriting, unless copying is authorized within the
terms of the license agreement;
2. Decoding copy-protected or encrypted software;
3. Converting software from machine language back to source code;
4. Issuing any software and/or items or a copy of such items to any
third party not entitled to access or use of the software such as
a non-SSC employee without the proper approval from Technology
Asset Management;
5. Lending or giving software licensed for SSC's use to anyone not
authorized to use it;
6. Altering or attempting to alter software where such alteration
would constitute a violation of copyright laws;
7. Exporting third party software outside the jurisdiction where it
is licensed;
8. Moving software from licensed hardware to non-licensed hardware;
9. Creating derivative works from third party software;
10. Running additional copies of third party software when and where
not permitted by the license agreement;
7
11. Circumventing any CIS standards
8
Front Office Technology Services Service Level Agreement
This Front Office Technology Services Service Level Agreement ("F.O. SLA") is
effective as of March 17, 2008 by and between ▇▇▇▇▇▇ Global Investments, Inc.
("Mercer") and State Street Bank and Trust Company ("State Street").
1. AVAILABILITY
State Street will maintain an Availability Percentage (as defined below) of
no less than ninety-nine percent (99%) in each calendar month with respect
to the Linedata technology and systems (the "System").
1.1 Definitions
"Availability Percentage" means the following fraction expressed as a
percentage:
Maximum Uptime - Unscheduled Downtime
Maximum Uptime
"Maximum Uptime" means the applicable calendar month in its entirety (i.e.,
24 hours per day, seven days per week), minus Scheduled Maintenance.
"Scheduled Maintenance" means (a) the aggregate time during which the
System is scheduled to be down for maintenance as further described in, and
only during the hours set forth in, Section 2 below and (b) the aggregate
time during which System undergoes emergency maintenance, which maintenance
is not necessitated by any actions by State Street or Mercer, provided that
(x) such emergency maintenance shall not exceed more than two (2) hours in
a given month, (y) Linedata shall notify State Street and Mercer
immediately upon learning of any such maintenance, and shall use reasonable
efforts to ensure minimum disruption to Mercer as a result of such
emergency maintenance.
"Unscheduled Downtime" means the total time, other than Scheduled
Maintenance, during which the functionality of the System is unavailable to
Mercer; excluding any System unavailability to the extent caused by: (i)
Mercer, its designated users or agents, (ii) any event classified as a
Force Majeure Event, or (iii) ▇▇▇▇▇▇'▇ inability to access the System due
to a network or other connectivity problem, including unavailability of or
latencies attributable to the public Internet infrastructure.
2. SCHEDULED MAINTENANCE
Scheduled Maintenance, if required, shall only take place between the hours
of noon to midnight on Saturdays. State Street will use reasonable efforts
to notify Mercer of any outages or any major upgrades at least thirty (30)
days in advance.
3. FRONT LINE SUPPORT
State Street will provide Front Line Support to Mercer from 8:00am to
6:00pm ET on days when the New York Stock Exchange is open.
Middle Office Services Service Level Agreement
This Middle Office Services Service Level Agreement ("M.O. SLA") is effective as
of March 17, 2008 by and between ▇▇▇▇▇▇ Global Investments, Inc. ("Mercer") and
State Street Bank and Trust Company ("State Street").
State Street shall provide Mercer with a monthly M.O. SLA Report that sets forth
the previous month's adherence to the service level target. Mercer and State
Street acknowledge that the desired standard for achieving the Service Levels
for each task described herein is 100% per task per month, and that the minimum
acceptable standard is 98% per task per month.
SS MO will process on a best efforts basis should Mercer or any 3rd party data,
reporting, or systems, necessary to meet its obligations, be unavailable or
delayed beyond the established deadlines.
---- ------------------------------------------------------------------------------------- -------------------
# Task Service Level Deadline
---- ------------------------------------------------------------------------------------- -------------------
1. Trading Services
--------------------------------------------------------------------------------------------------------------
1.1 Mercer communicates all collective investment trust activity (except SSgA PALMS) 2:30 PM
and direct MGI Funds trades (subs/reds) to SS MO team by 2:30 p.m. on T.
The report will be provided regardless of whether there is actual investment
activity for a given business day (i.e. report will reflect zero activity or
similar communication).
---- ------------------------------------------------------------------------------------- -------------------
1.2 SS MO communicates trades to SS FA on T. 3:00 PM
---- ------------------------------------------------------------------------------------- -------------------
1.3 SS MO obtains confirmation that underlying fund trades were placed by SS FA via 4:00 PM
email sent back from relevant TA.
---- ------------------------------------------------------------------------------------- -------------------
1.4 SS MO places trade orders to PFPC, confirming PFPC's receipt of order by 4 p.m. 4:00 PM
Receipt must be initially confirmed via phone or email. If initial confirmation
provided via phone, SS MO must receive email confirmation from PFPC by close of
business on T. SS MO to forward confirmation to Mercer if not on initial
confirmation email.
---- ------------------------------------------------------------------------------------- -------------------
1.5 SS MO confirms SSgA's receipt of instruction via email from SS FA by 4 p.m. SS FA 4:00 PM
confirms receipt with SSgA over phone.
---- ------------------------------------------------------------------------------------- -------------------
1.6 SS MO emails wire instructions to SS FA. SS MO confirms payment made to SSgA with 4:00 PM (T+1)
SS FA by 4 p.m. on T+1.
---- ------------------------------------------------------------------------------------- -------------------
1.7 SS MO places orders with SSTA by 3:00 p.m. SS MO confirms SS TA receipt of order 3:00 PM
via email by close of business on T. SS MO forwards confirmation to Mercer if
Mercer is not on initial confirmation email.
---- ------------------------------------------------------------------------------------- -------------------
1.8 Mercer communicates all direct SSgA trades to SS MO by 4:30 p.m. on T-1. 4:30 PM (T-1)
---- ------------------------------------------------------------------------------------- -------------------
1.9 SS MO places orders to SSgA, confirming SSgA's receipt of order by 7 p.m. on T-1. 7:00 PM (T-1)
Receipt must be confirmed initially via phone or email by 7 p.m. If initial
confirmation provided via phone, SS MO must receive email confirmation from SSgA by
close of business on T-1. SS MO forwards confirmation to Mercer if Mercer is not
on initial confirmation email.
---- ------------------------------------------------------------------------------------- -------------------
1.10 For trades where proceeds are raised from the sale of Mercer Funds (rebalance), SS Trade Date
MO communicates wiring instructions to SS FA to pay for SSgA direct buys
Page 1 of 3
on T. SS MO obtains wire confirmation number from SS FA.
---- ------------------------------------------------------------------------------------- -------------------
1.11 Mercer communicates all collective SSgA PALMS trades to SS MO by 4:30 p.m. on T-1. 4:30 PM (T-1)
---- ------------------------------------------------------------------------------------- -------------------
1.12 SS MO communicates all collective SSgA PALMS trades to SS FA by 5:00 p.m. on T-1. 5:00 PM (T-1)
---- ------------------------------------------------------------------------------------- -------------------
1.13 SS MO obtains confirmation that underlying fund trades were placed by SS FA via 7:00 PM (T-1)
email. SS FA confirms with SSgA via phone.
---- ------------------------------------------------------------------------------------- -------------------
1.14 Mercer sends plan level trades to SS MO by 2:30 p.m. on T. 2:30 PM (T)
---- ------------------------------------------------------------------------------------- -------------------
1.15 SS MO places PALMS trade orders to SSTA by 3:00 p.m. on T. SS MO confirms SSTA 3:00 PM (T)
receipt of order via email by close of business on T. SS MO forwards confirmation
to Mercer if Mercer is not on initial confirmation email.
---- ------------------------------------------------------------------------------------- -------------------
1.16 Mercer communicates wiring instructions for SSgA PALMS purchases to SS MO by 12 12:00 PM (T)
p.m. on T.
---- ------------------------------------------------------------------------------------- -------------------
1.17 SS MO notifies SS FA of payment amount and wire instructions. SS MO confirms with 4:00 PM (T)
SS FA that payment has been made by 4:00 p.m. on T
---- ------------------------------------------------------------------------------------- -------------------
1.18 Mercer sends daily (when applicable) subadvisor allocation report to SS MO. 3:30 PM
Mercer attempts to send report 1) by 3:30 p.m. or 2) if not available, by 9:30 a.m.
next day. Mercer notifies SS MO in advance if primary 3:30 p.m. deadline will be
missed.
---- ------------------------------------------------------------------------------------- -------------------
1.19 SS MO obtains SS FA confirmation of receipt of subadvisor allocation via email by 10:00 AM
close of business on same day. SS MO provides confirmation to Mercer if Mercer is
not on initial confirmation email.
---- ------------------------------------------------------------------------------------- -------------------
1.20 Mercer provides SS MO, in writing, preliminary list of transition holdings 4 weeks 4 Weeks prior to
prior to transition. event
---- ------------------------------------------------------------------------------------- -------------------
1.21 SS MO posts initial holdings to the recordkeeping system within 24 hours of final 24 hrs of notice
authorization by Mercer. SS MO provides extract to LongView in next scheduled
overnight cycle.
---- ------------------------------------------------------------------------------------- -------------------
1.22 SS MO provides daily cash projections report to Mercer for all accounts under 2:30 PM
transition.
---- ------------------------------------------------------------------------------------- -------------------
1.23 SS MO obtains ETF trades from Longview by 3:00 p.m. and trades will be reflected in 3:00 PM
the next scheduled recordkeeping extract.
--------------------------------------------------------------------------------------------------------------
2. Recordkeeping/Valuations
--------------------------------------------------------------------------------------------------------------
2.1 SS MO utilizes cash trades received from Mercer and Collective Trust/Mutual Fund 7:00 AM (T+1)
Net Asset Value to calculate share piece of trade independent of TA transactions.
--------------------------------------------------------------------------------------------------------------
3. Reconciliation
--------------------------------------------------------------------------------------------------------------
3.1 SS MO reconciles holdings on applicable recordkeeping system with various transfer 7:30 AM (T+1)
agents' records (PFPC, SSTA, SSgA) by 7:30 a.m. on T+1. SS MO sends email to
Mercer for advisement of and reasoning for any reconciliation breaks.
Page 2 of 3
---- ------------------------------------------------------------------------------------- -------------------
3.2 SS MO reconciles trade date positions to client trustees. SS MO to deliver Close of Business
reconciliation report to Mercer by close of business on T+1. (T+ 1)
--------------------------------------------------------------------------------------------------------------
4. Reporting
--------------------------------------------------------------------------------------------------------------
4.1 SS MO emails cash notification of transactions to client trustees (including State Close of Business
Street) by close of business on T. (T)
---- ------------------------------------------------------------------------------------- -------------------
4.2 SS MO provides daily reconciled trade date position extract to Linedata that 7:30 AM
includes account number, security description, shares held, market value, and date.
Data will be reconciled to Transfer Agent file provided Transfer Agent SLA is met
as outlined above.
---- ------------------------------------------------------------------------------------- -------------------
4.3 SS MO emails trade confirmation reports including plan name, transaction date, 2:00 PM (T+ 1)
product name, transaction type, units traded, price, and net amount to client
trustees for trade order items by 2 p.m. on T+1. SS MO copies Mercer on
correspondence.
---- ------------------------------------------------------------------------------------- -------------------
4.4 SS MO provides client positions to client trustees via email on close of business Month End + 1 BD
on first business day of month. SS MO copies Mercer on correspondence to client
trustees.
---- ------------------------------------------------------------------------------------- -------------------
4.5 Mercer custodians provide SS MO with failed trade reporting by 4:30 p.m. 4:30 PM
---- ------------------------------------------------------------------------------------- -------------------
4.6 SS MO provides Mercer a post liquidation report once transition is complete. TBD
--------------------------------------------------------------------------------------------------------------
5. Relationship
--------------------------------------------------------------------------------------------------------------
5.1 Mercer facilitates access for SS MO to all transfer agent, trustee and subadvisor Ad Hoc
accounts/systems/reporting required to complete the SS MO operational process.
---- ------------------------------------------------------------------------------------- -------------------
5.2 SS MO will provide services outlined on any day where US security markets are open 10 BD prior to
(as defined by the NYSE). A request for "off" day servicing must be made in effective date
writing 10 BD in advance and will be serviced on a best efforts basis.
---- ------------------------------------------------------------------------------------- -------------------
5.3 Mercer will provide SS MO a list of those personnel authorized to give instructions Ad Hoc
to SS MO. To be updated annually and amended as required.
---- ------------------------------------------------------------------------------------- -------------------
5.4 SS MO provides Mercer with support for account structure and product additions, 10 BD prior to
changes, deletions. effective date
---- ------------------------------------------------------------------------------------- -------------------
5.5 Mercer provides SS MO, in writing, with notification of account structure and 10 BD prior to
product additions, changes, deletions at least 10 BD in advance effective date
---- ------------------------------------------------------------------------------------- -------------------
Definitions
--------------------------------------------------------------------------------------------------------------
SS MO State Street Middle Office
-------------------------- -----------------------------------------------------------------------------------------
SS FA State Street Fund Accounting
-------------------------- -----------------------------------------------------------------------------------------
SS TA State Street Transfer Agency
-------------------------- -----------------------------------------------------------------------------------------
T Trade Date
-------------------------- -----------------------------------------------------------------------------------------
Close of Business 7:00 PM
-------------------------- -----------------------------------------------------------------------------------------
Business Day U.S. Business Days (BD) shall be defined as all days the New York Stock Exchange (NYSE)
is open for business
-------------------------- -----------------------------------------------------------------------------------------
Times All times refer to Eastern Time
-------------------------- -----------------------------------------------------------------------------------------
Page 3 of 3
SCHEDULE 1
TO THE INVESTMENT ADMINISTRATION SERVICES AGREEMENT BETWEEN
STATE STREET AND MERCER
PART A
MIDDLE OFFICE SERVICES DESCRIPTION OF SERVICES
Recordkeeping/Valuations
o State Street will process trade activity received from Mercer to a
recordkeeping system
o State Street will process transition activity received from the front
office trading system to a recordkeeping system
o State Street will record investments in the Mercer portfolios to a
recordkeeping system
o State Street will apply a price and provide a valuation for the Mercer
portfolio holdings
o State Street will receive cash flows from Mercer and apply to a
recordkeeping system
o State Street will receive cash holdings from custodians and maintain
each portfolio's cash position on a record keeping system
o State Street will post corporate action events and entitlements to a
recordkeeping system as they occur
Reconciliation
o State Street will perform daily cash reconciliations as of the
previous day between a recordkeeping system and each custodian
o State Street will perform daily trade date position reconciliations as
of the previous day between the following:
o a recordkeeping system and each custodian
o a recordkeeping system and each transfer agent
o State Street will perform a position reconciliation for all transition
accounts as of the previous day between a recordkeeping system and
each custodian
Trading Services
o State Street will receive trades orders from Mercer and place trade
orders with the applicable transfer agent
o State Street will provide trade confirmations to Mercer
o State Street will reconcile trade orders to the transfer agent records
and report same to Mercer
Reporting
o State Street will provide specified reports via the ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
web portal. The reporting will be agreed upon from the State Street
record keeping system core reporting package.
o State Street will provide extract files from a record keeping system
to the front office trading system.
PART B
FRONT OFFICE TECHNOLOGY SERVICES DESCRIPTION OF SERVICES
State Street shall provide Mercer with the following front office technology
services via access to a Trade Order Management System such as Linedata's
LongView or other comparable applications solutions provider:
Portfolio Modeling
o Customizable appraisals by investment
o Full multi-currency support
o Powerful "what if" tools to allow examination and prediction of impact
on proposed orders
o Rebalancing of account and account groups against pre-defined models
o Market value (cash) and share modeling
o Portfolio hierarchy
o Target weight allocation, with modification capability
o Trade order generation and routing
Cash Availability
o Sub Advisor cash availability based on pre-defined models
o Modification of cash allocation prior to report
Compliance
o User defined security levels
o Multiple level review and approval requirements
First Line Support
o To the extent Mercer has questions related to use of the Linedata
Systems, or experiences any loss of material functionality or
catastrophic failure of the Linedata Systems, State Street shall be
available as First Line Support between the hours of 8:00 am and 6:00
pm ET.