Exhibit (h.1)
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
MASTER SERVICES AGREEMENT
Between
Each BGI Recipient Listed in Exhibit A
And
State Street Bank and Trust Company
Dated as of March 3, 2008
CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request and filed separately with the
Securities Exchange Commission.
TABLE OF CONTENTS
1. BACKGROUND AND STRUCTURE................................................3
2. SERVICES................................................................5
3. PERFORMANCE; SERVICE LEVELS.............................................7
4. STATE STREET PERSONNEL; USE OF LOCATIONS...............................10
5. BGI RESPONSIBILITIES; RELIANCE ON INFORMATION..........................13
6. CHARGES, INVOICING AND PAYMENT.........................................17
7. TERM AND TERMINATION...................................................21
8. DISENGAGEMENT ASSISTANCE...............................................26
9. COMPLIANCE WITH LAWS, POLICIES AND USE RESTRICTIONS....................25
10. DATA PROTECTION........................................................27
11. CONTRACT AND PROJECT MANAGEMENT........................................30
12. AUDIT / RECORDS / LEGAL DISCOVERY......................................31
13. CONFIDENTIALITY........................................................36
14. PROPRIETARY RIGHTS.....................................................41
15. REPRESENTATIONS AND WARRANTIES.........................................41
16. INSURANCE AND RISK OF LOSS.............................................43
17. INDEMNIFICATION........................................................44
18. LIABILITY; LIABILITY LIMITATIONS.......................................48
19. DISPUTE RESOLUTION.....................................................51
20. MISCELLANEOUS..........................................................52
Master Services Agreement -i- BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request and filed separately with the
Securities Exchange Commission.
TABLE OF SCHEDULES AND EXHIBITS
Exhibit A BGI Recipients
Exhibit B Service Level Methodology *
Exhibit C Change Procedures
Exhibit D Governance
Exhibit E Physical Security and Data Safeguards
Exhibit F Relationship Management Manual
Exhibit G Disaster Recovery/Business Continuity
Exhibit H Disengagement Assistance
Exhibit I Form of Participation Agreement
Exhibit J List of Legacy Services Agreements
Exhibit K Definitions*
Exhibit L Special Code of Conduct
* Portions of this exhibit have been omitted pursuant to a confidential
treatment request by BlackRock Institutional Trust Company, N.A. and have
been filed separately with the Securities Exchange Commission.
Master Services Agreement ii BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
MASTER SERVICES AGREEMENT
This Master Services Agreement (this "Agreement"), is made and entered
into on this 3rd day of March, 2008 ("Effective Date") by and between State
Street Bank and Trust Company, Commonwealth of Massachusetts, with a principal
office located at ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("State Street") and each
of the entities set forth in Exhibit A (each, a "BGI Recipient"). Except as
specifically stated, each BGI Recipient executing this Agreement and one or more
Service Modules will be obligating itself only with respect to itself, and not
with respect to any other entity. References to a "Party" herein refer to either
State Street or the applicable BGI Recipient or BGI Recipients, and references
to the "Parties" herein refer to both State Street and the applicable BGI
Recipient or BGI Recipients. This Agreement consists of the general terms and
conditions below and all Exhibits attached hereto.
NOW, THEREFORE, for and in consideration of the Parties' agreements set
forth below and intending to be legally bound, the Parties hereby agree as
follows:
1. BACKGROUND AND STRUCTURE
1.1 Background and Purpose.
(a) The BGI Recipients manage a variety of assets, such as bank
collective funds, mutual funds, exchange-traded products and
separate accounts.
(b) State Street specializes in performing for other companies the
types of services encompassed by the Service Modules.
(c) The purpose of this Agreement is to establish the general
terms and conditions applicable to State Street's provision of
certain investment administration, accounting, custody,
transfer agency, and related information technology services
to the BGI Recipients.
(d) Contemporaneous with or following the execution of this
Agreement, one or more Service Modules will be executed
between State Street and one or more BGI Recipients.
(e) Contemporaneous with the execution of this Agreement, State
Street and Barclays Global Investors, N.A. ("BGI") will enter
into certain license agreements and arrangements within a
Service Module (the "License Agreements"), pursuant to which
BGI, its Affiliates and certain third parties shall have the
right to use certain Intellectual Property of State Street,
subject to and in accordance with the terms and conditions set
forth therein.
(f) State Street and certain BGI Recipients are parties to the
agreements listed in Exhibit J hereto (the "Legacy Services
Agreements"), pursuant to which State Street has provided
certain Services, which Legacy Services Agreements State
Street and such BGI Recipients desire to terminate in
accordance with the terms hereof.
1.2 Objectives. Subject to Section (ii)(b), the Parties have agreed upon
the following objectives to be accomplished by this Agreement:
Master Services Agreement 3 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
(a) to leverage State Street's capability to deliver Services in
accordance with the Standard of Care;
(b) to gain access to State Street's high caliber, knowledgeable,
experienced and skilled pool of resources that will provide
each BGI Recipient with value-added strategic thought, vision
and leadership;
(c) to use technologically current tools, Equipment and Software
in performing the Services; and
(d) to establish a global relationship and contract governance
structure combined with a single, integrated Service delivery
model to facilitate the use of consistent, integrated
approaches and processes across geographies.
1.3 Structure of Agreement.
(a) Master Services Agreement. This Agreement is a master
agreement governing the relationship between the Parties
solely with regard to State Street's provision of Services to
each BGI Recipient under the applicable Service Modules.
(b) Service Modules.
(i) Each Service Module will specify:
(A) the Services to be provided thereunder;
(B) terms and conditions specific to such
Services;
(C) fees and charging mechanisms specific to
such Services;
(D) Service Levels specific to such Services;
(E) as applicable, provisions addressing the
disposition and transfer of any resources
specific to such Services, including
Equipment, Software, personnel, and/or third
party contracts; and
(F) any other terms relevant to such Service
Module.
(ii) Except as otherwise expressly set forth in an
applicable Service Module:
(A) each Service Module will incorporate into
such Service Module by reference the terms
and conditions of this Agreement and any
Participation Agreements, as applicable; and
(B) no Service Module will incorporate any terms
or conditions of any other Service Module
unless expressly provided otherwise in such
Service Module.
(c) Participation Agreements.
(i) BGI Affiliates. Any party that desires to receive
Services under an existing Service Module may become
a party to this Agreement and to such Service
Master Services Agreement 4 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
Module upon the mutual agreement of State Street and
such party, each in their discretion, through the
execution of a Participation Agreement, using the
form set forth in Exhibit I.
(ii) Charges. State Street will charge each such BGI
Recipient for any Services rendered pursuant to such
Service Module in accordance with the applicable
terms and conditions set forth in the Service
Modules. State Street will not charge such BGI
Recipient any implementation fees, except as set
forth in the applicable Service Module.
(d) Termination of Legacy Services Agreements. Upon the full
execution of a Service Module or a Participation Agreement to
a particular Service Module, any of the Legacy Services
Agreements shall be terminated with respect to such Services
and shall be of no further force or effect, except with
respect to obligations that have accrued prior to such time or
as otherwise provided in such Legacy Services Agreements.
1.4 Definitions. Defined terms used in this Agreement have the meanings
referenced in Exhibit K unless otherwise defined. Capitalized terms
that are used but not defined in any Exhibit to this Agreement or in
any Service Module will have the respective meanings assigned to them
in this Agreement (unless otherwise noted in such other documents).
2. SERVICES
2.1 Generally. State Street will provide the following services, functions
and responsibilities as they may evolve during the term of this
Agreement and as they may be supplemented, enhanced, modified or
replaced (collectively, the "Services") under each Service Module for
the applicable BGI Recipients:
(a) the services, functions and responsibilities described in such
Service Module or elsewhere herein, excluding any services,
functions or responsibilities that are expressly described as
the responsibility of a BGI Recipient or a third party (other
than a Subcontractor);
(b) those functions, services and responsibilities that were
provided by State Street to the BGI Recipients under the
Legacy Services Agreements immediately prior to the Effective
Date, even if the service, function or responsibility is not
completely described herein or in the Service Modules; and
(c) any services, functions or responsibilities not specifically
described in this Agreement or such Service Module, but which
are an inherent part of the Services and required for the
proper performance or provision of the Services.
Except as provided above, State Street will not be responsible for any
duties or obligations that it does not expressly undertake pursuant to
the terms of this Agreement or any Service Module and no such duties
will be implied or inferred. Except as set forth in an applicable
Service Module or as required pursuant to Section 9.1, State Street's
duties will not include any obligation to monitor compliance by any BGI
Recipient or any other person with any restriction or guideline imposed
by such BGI Recipient's constitutive documents, by contract or by law
or otherwise, including, but not limited to, the manner in which the
assets of the BGI Recipients or their customers, as applicable, are
invested.
Master Services Agreement 5 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
2.2 Non-Exclusive Services/Cooperation with Third Parties/New Services.
(a) Except as otherwise expressly indicated in any Service Module,
BGI may at its discretion perform any of the Services itself,
or enter into arrangements with third parties to provide the
Services.
(b) Furthermore, any BGI Recipient may, at its discretion, perform
itself or enter into arrangements with third parties to
provide New Services.
(c) To the extent that a BGI Recipient performs any New Services
itself or Services that it is permitted to perform for itself
in accordance with the terms of this Agreement and the
applicable Service Module, or retains third parties to do so,
State Street will cooperate and coordinate with such entities
as such BGI Recipient reasonably requests, including by using
Commercially Reasonable Efforts to modify its interfaces to
those of the BGI Recipient or its third-party provider to
ensure compatibility among such systems and those of State
Street, subject to reimbursement by such BGI Recipient for
material cost incurred by State Street, except to the extent
that such BGI Recipient elects to use available Technology
Support Hours in lieu thereof.
2.3 Divestitures. Except to the extent prohibited by applicable Laws, if
any BGI Recipient relinquishes Control of all or part of a business
unit, or a particular function or facility of any BGI Recipient after
the Effective Date (each, a "Divested Entity"), then at the request of
such BGI Recipient, State Street will continue to provide the Services,
including Disengagement Assistance to such Divested Entity for a period
of time BGI requests, which period will not extend beyond the earlier
to occur of: (a) 24 months after such entity becomes a Divested Entity;
or (b) the end of the period during which State Street is required to
provide Disengagement Assistance under this Agreement, at the rates and
in accordance with the terms and conditions set forth in the applicable
Service Modules; provided, that, such Divested Entity agrees in writing
with State Street to abide by the terms and conditions of the
applicable Service Module and any applicable provisions of this
Agreement. The applicable BGI Recipient shall remain primarily liable
for the obligations of the Divested Entity under the applicable Service
Modules.
2.4 Services Evolution and Technology Support.
(a) Services Evolution. Throughout the Service Module Terms
(including any extensions or renewals, if applicable), State
Street will seek to improve the quality, efficiency and
effectiveness of the Services to keep pace with technological
advances and support the evolving business needs and efforts
of each BGI Recipient to maintain competitiveness in the
markets in which such BGI Recipient competes. State Street
will do this by: (i) discussing with the BGI Recipients "best
practice" techniques and methods in providing the Services;
(ii) applying such techniques to the Services to the extent
practicable and consistent with State Street's overall
servicing strategy; (iii) maintaining a reasonable training
program for State Street Personnel in new techniques and
technologies that are used generally within State Street's
organization or first class international financial services
providers of asset processing and related services and that
the applicable BGI Recipient approves for use in rendering the
Services; (iv) developing in conjunction with the applicable
BGI Recipient a training program designed to train State
Street Personnel and applicable Subcontractors in new
techniques and technologies used by the BGI Recipients or used
generally at first class international financial services
providers of asset processing and related services; and (v)
making investments that State Street reasonably believes is
necessary to maintain the currency of the tools,
Master Services Agreement 6 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
infrastructure and other resources State Street uses to render
the Services. Upon request from any BGI Recipient, State
Street will provide to such BGI Recipient any service that
State Street is providing to another of its customers, subject
to mutual agreement on equitable pricing and other terms for
such services and applicable third-party restrictions.
(b) Technology Support. State Street will provide additional
technology support in accordance with the terms of Exhibit C
and the Service Modules.
2.5 Changes. The Change Procedures will be used by both Parties for all
Changes to the Services. Except as otherwise provided herein or
therein, each BGI Recipient reserves the right to reject State Street's
request for a Change to the Services if such BGI Recipient believes the
proposed Change will have a material impact on the provision of the
Services, or if such BGI Recipient is required to pay any fee or
contribute any other resources to the Change.
2.6 Due Diligence Complete. State Street hereby acknowledges that with
respect to any Service Module dated as of the date of this Agreement:
(a) The BGI Recipients have delivered or made available to State
Street information and documents State Street has deemed
necessary, including information and documents requested by
State Street, for State Street to understand fully its
obligations under the Service Modules; and
(b) State Street's due diligence is complete and there will be no
changes to the Service Modules related in any way to State
Street's performance or non-performance of its due diligence.
3. PERFORMANCE; SERVICE LEVELS
3.1 Standard of Care. State Street will perform the Services in a manner
that meets the following standards of performance (collectively, the
"Standard of Care"):
(a) without negligence and at least at the same standard of care
as State Street provides for itself and/or its Affiliates with
respect to similar services;
(b) in a manner that meets State Street's obligations under the
Agreement or any Service Module, including the Service Levels;
and
(c) with the skill and care that may reasonably be expected of a
first class international financial services provider of asset
processing and related services.
3.2 Service Levels. Subject to the terms and conditions of this Agreement
and applicable Service Modules, each Party will perform its obligations
under the Service Level Schedules and cause its third-party providers
to do likewise. State Street and the applicable BGI Recipients may
agree, from time to time, to replace Key Performance Indicators with
other Service Levels to be treated as such.
3.3 Performance Measurement; Monthly Scorecard.
(a) Beginning after the first full month of the Agreement Term, on
a monthly basis, no later than five (5) Business Days after
each such month end, State Street will prepare and deliver to
the applicable BGI Recipient two balanced scorecards (each, a
"Monthly Scorecard") for the Institutional Accounts and the
BGI Funds, respectively, for review by
Master Services Agreement 7 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
the Executive Committee at the next scheduled quarterly
meeting, each containing (at a minimum):
(i) the then-current Key Performance Indicators;
(ii) the performance metrics that were included in
periodic reporting under the Legacy Service
Agreements prior to the Effective Date;
(iii) timeliness and budget status, as applicable, for
Projects and Changes;
(iv) turnover (as set forth in Section 4.1(e)(ii) below);
and
(v) volume metrics (e.g., volumes, number of accounts,
etc.) and such other statistical information that the
Executive Committee may determine from time to time.
State Street will provide to the BGI Recipients as part of the
Monthly Scorecard such other information relating to the
Services as the Parties agree from time to time, provided that
State Street will not unreasonably withhold its consent to
including items requested by the BGI Recipients.
(b) State Street will promptly prepare and deliver a draft action
plan to address any material failure of State Street with
respect to the matters set forth in Section 3.3(a)(i) and
results of previously implemented plans. The Executive
Committee will review a quarterly summary of the Monthly
Scorecards.
(c) State Street's failure to report with respect to any Key
Performance Indicator within fourteen (14) days following the
date upon which such BGI Recipient notifies State Street of
such failure will be considered to be a failure to meet such
Key Performance Indicator during the applicable time period.
3.4 Performance Issues.
(a) State Street Non-Performance.
(i) If State Street becomes aware of a situation where it
has failed or intends to fail (or a Subcontractor has
failed or intends to fail) to comply with the Service
Levels, or otherwise with its other obligations under
a Service Module in any material respect, State
Street will promptly inform the applicable Authorized
Person of such situation, the situation's impact or
expected impact and State Street's action plan to
minimize or eliminate such impact.
(ii) State Street will promptly notify such Authorized
Person upon becoming aware of any circumstances that
may reasonably be expected to jeopardize the timely
and successful completion or delivery of any Service,
Project or deliverable.
(iii) State Street will inform such Authorized Person of
any steps State Street is taking or will take to
minimize, eliminate or remediate such impact, and the
projected actual completion (or delivery) time.
Master Services Agreement 8 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
(b) BGI Recipient Non-Performance.
(i) If a BGI Recipient becomes aware of a situation where
it has failed or intends to fail (or a Third Party
Provider has failed or intends to fail) to comply
with its obligations under a Service Module in any
material respect, such BGI Recipient will promptly
inform State Street of the situation's impact or
expected impact.
(ii) State Street will use Commercially Reasonable Efforts
to perform its obligations on time and to prevent or
circumvent such problem or delay, notwithstanding
such BGI Recipient's (or its Third Party Provider's)
failure to perform.
(c) Service Failures.
(i) To the extent State Street experiences a problem or
delay in providing the Services, State Street will
promptly notify the applicable Authorized Person and
use Commercially Reasonable Efforts to continue
performing the Services in accordance with the
Service Levels.
(ii) The BGI Recipients will use Commercially Reasonable
Efforts to mitigate the impact of State Street's
non-performance to the extent the problem or delay
relates to matters described in Section 3.4(b)(i)
above.
(iii) If State Street is unable to meet its obligations
under a Service Module as a result of the matters
described in Section 3.4(b)(i) above, State Street's
non-performance of the affected Services will be
excused to the extent that State Street provides the
affected BGI Recipients with reasonable notice of
such non-performance and uses Commercially Reasonable
Efforts to perform notwithstanding such BGI
Recipient's failure to perform.
(iv) Material costs incurred by either Party in the event
of a delay or failure for reasons outside of the
control of both Parties will be allocated as agreed
between the Parties.
(d) Resource Reprioritization. Upon request from an Authorized
Person, State Street will use Commercially Reasonable Efforts
to reprioritize or reset the schedule for State Street
Personnel's existing work activities without impacting the
established schedule for other tasks or the performance of the
Services in accordance with the Standard of Care; provided,
however, that if it is not practicable to avoid such an
impact, State Street will notify such Authorized Person of the
anticipated impact and obtain its consent prior to proceeding
with such work activities. Each such BGI Recipient, in its
sole discretion, may: (i) forego or delay such work
activities; or (ii) temporarily adjust State Street's work to
be performed, the schedules associated therewith or the
Service Levels, to permit State Street's performance of such
work activities. State Street will not be responsible for
breaches of this Agreement or the relevant Service Modules or
be responsible for Losses or Damages, to the extent resulting
from a BGI Recipient's election to so forego, delay or adjust,
subject to Section 3.4(a) and (b) above.
3.5 [CONFIDENTIAL TREATMENT REQUESTED]
3.6 Adjustments. At least semi-annually the Parties will review the Service
Levels and will make adjustments to them as appropriate to reflect
changing business priorities or improved
Master Services Agreement 9 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
performance capabilities associated with advances in technology and
methods used to perform the Services.
3.7 [CONFIDENTIAL TREATMENT REQUESTED]
4. STATE STREET PERSONNEL; USE OF LOCATIONS
4.1 State Street Personnel. "State Street Personnel" means employees of
State Street and State Street Affiliates who perform any Services. A
BGI Recipient may request, and State Street will furnish a staffing
plan regarding State Street Personnel for a Service Module at any time
during the Agreement Term.
(a) Qualifications. All State Street Personnel must be:
(i) suitable, and fully trained (including satisfying
relevant regulatory training and competence
requirements);
(ii) properly supervised and subject to well-defined
operating procedures;
(iii) familiar with the products of the applicable BGI
Recipient and the applicable regulatory requirements;
and
(iv) available upon reasonable prior notice when required
by a BGI Recipient for training.
(b) Advisements and Agreements.
(i) State Street acknowledges and agrees that, in the
course of providing the Services, State Street
Personnel may have access to, or acquire, knowledge
of confidential, proprietary or sensitive information
regarding the BGI Recipients or clients or other
parties with whom the BGI Recipients have a
relationship. State Street will advise such State
Street Personnel of the standards imposed upon them
with respect to the Services they render pursuant to
the terms of the Service Modules, which advisement
may occur through, among other things, general
policies (e.g., standard of conduct) of State Street
that are applicable to State Street Personnel.
(c) State Street shall at all times have in place with all State
Street Personnel agreements (either directly or indirectly
through their respective employers) with all State Street
Personnel: (i) with respect to confidentiality, the scope of
which includes BGI Confidential Information and which contains
confidentiality obligations consistent with State Street's
obligations under this Agreement and the Service Modules; and
(ii) respecting Intellectual Property Rights as necessary for
State Street to fulfill its obligations under this Agreement
and the Service Modules.
(d) Compliance with Code of Conduct. State Street will at all
times through the Agreement Term maintain a code of conduct
applicable to its personnel and enforce such code of conduct.
Upon request by any BGI Recipient, State Street will provide a
copy of such code of conduct.
(e) Background Checks.
Master Services Agreement 10 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
(i) State Street will maintain as part of its standard
hiring practices a requirement to perform background
checks with respect to State Street Personnel and
Contract Workers. State Street will conduct adequate
background screenings based on FDIC guidelines,
federal bonding requirements and any other applicable
regulatory requirements on all State Street Personnel
and Contract Workers who will provide Services to the
BGI Recipients. State Street will conduct
pre-employment screenings of all new State Street
Personnel and Contract Workers who will provide
Services to the BGI Recipients in a manner consistent
with State Street's pre-employment screening policies
and procedures. Minimally, State Street will perform
the following background pre-employment screening
checks:
(A) seven (7) years criminal records check;
(B) three (3) years employment verification;
(C) credit check (where appropriate to nature of
the position); and
(D) academic qualifications.
(ii) Resource Sufficiency; Reductions.
(A) As part of the Monthly Scorecard, State
Street will provide a report to the BGI
Recipients indicating the turnover rate for
State Street Personnel who are primarily
dedicated to providing Services during the
prior month, which, for the avoidance of
doubt, shall exclude any State Street
Personnel who work in a shared services
group.
(B) At each meeting of the Executive Committee,
the Executive Committee will discuss any
concerns that the BGI Recipients may have
with respect to any such turnover and, as
applicable, the plans of State Street to
address excessive turnover, and the status
of State Street's implementation of such
plans.
(C) State Street will notify the Executive
Committee prior to implementing any plan to
decrease its staffing of the Services.
(f) Replacement. Any BGI Recipient may request that State Street
reassign any State Street Personnel from the team that
provides Services to such BGI Recipient on any lawful grounds.
State Street will consider the input of such BGI Recipient.
The timing for transfer, reassignment or replacement of State
Street Personnel will be closely coordinated with the
requirements for timing and other elements of the Services so
as to maintain continuity in the performance of the Services.
(g) Immigration. Each Party is responsible for handling and
processing all immigration and employment-related issues and
requirements (including processing visas and ensuring
compliance with all applicable Laws) arising in connection
with its personnel, and the other Party will not be required
to participate in any such immigration or visa activities.
(h) [CONFIDENTIAL TREATMENT REQUESTED]
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confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
4.2 Key State Street Positions.
(a) BGI Review. Before assigning an individual to a Key State
Street Position, whether as an initial assignment or as a
replacement, State Street will: (i) notify the affected BGI
Recipients of the proposed assignment; (ii) specify how long
that individual has been employed by State Street; (iii) at a
BGI Recipient's request, introduce the individual to
appropriate representatives of such BGI Recipient; and (iv)
consult with such BGI Recipient prior to implementing such
assignment. A BGI Recipient may request different or
additional Key State Street Positions during the Agreement
Term, and State Street will comply with such requests except
as prohibited by applicable Laws.
(b) [CONFIDENTIAL TREATMENT REQUESTED]
4.3 Governance Positions. The Parties will establish two separate
governance structures for the Service Modules for BGI Funds and
Institutional Accounts, respectively, each in accordance with the
Governance Procedures. State Street and the BGI Recipients will consult
with one another with respect to the appointment of persons to the
positions contemplated by the Governance Procedures. Each of State
Street and the BGI Recipients, in its sole discretion, will make the
final determination with respect to persons appointed on its behalf.
4.4 Subcontractors.
(a) Notice and Approval. State Street will provide thirty (30)
days' prior written notice (in accordance with Section 20.9)
to any affected BGI Recipient of State Street's intention to
subcontract any of its obligations under the Service Modules,
except in connection with any Permitted Delegation. State
Street will not under any circumstances subcontract any
obligations hereunder or under the Service Modules, other
than: (i) Permitted Delegations; and (ii) auxiliary services
that facilitate the Services (e.g., document warehousing and
retrieval, print services, etc.), as otherwise permitted
hereunder. Such notice will identify the proposed
Subcontractor, and except with respect to any Permitted
Delegation, such BGI Recipient may reject any proposed
Subcontractor. Upon request therefor, State Street shall
provide the BGI Recipients with a list of its global
sub-custodian providers.
(b) Subcontractor Services.
(i) Except as expressly provided otherwise under this
Agreement or a Service Module, State Street will
remain responsible for obligations, services and
functions performed by, and other acts or omissions
its Subcontractors and their employees to the same
extent as if these obligations, services and
functions were performed by State Street, regardless
of whether a BGI Recipient has exercised its right to
reject State Street's use of any proposed
Subcontractor, as applicable.
(ii) State Street will be the sole point of contact for
each BGI Recipient with respect to Subcontractors.
4.5 Service Locations.
(a) State Street Locations. The Services (other than shared or
centralized custody functions within State Street or
technology infrastructure, development or support) provided
under the Service Center Module will be provided from: (i)
sites within the Boston,
Master Services Agreement 12 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
Massachusetts metropolitan area and California; (ii) sites in
Toronto, Canada; (iii) any location from which Services are
provided pursuant to Permitted Delegations; or (iv) other
State Street or third party locations with the prior approval
of the affected BGI Recipients. State Street will provide from
time to time upon request from a BGI Recipient an updated list
of jurisdictions in which State Street and its Affiliates
operate.
(b) Manner of Use. Except as provided in Section 3.7 with respect
to step-in rights, each Party may only use the other Party's
locations for the sole and exclusive purpose of providing or
receiving the Services (as applicable), except that BGI
Recipients may do so in order to exercise audit rights subject
to and in accordance with the terms of this Agreement and the
Service Modules. Any other uses are subject to the prior
approval of the other Party, in its discretion. The limited
rights granted under this Section 4.5 will not constitute a
leasehold or other property interest in favor of the other
Party. Any access to BGI Technology by State Street or a
Subcontractor will be in accordance with applicable risk and
control policies of the BGI Recipients.
4.6 Co-Location of Employees.
(a) The BGI Recipients will be entitled to collectively co-locate
up to five (5) of their employees in each of the facilities
used by Covered Persons and/or iGroup ("BGI Co-Located
Employees") (i.e., up to a total of ten (10) such employees),
subject to State Street's right to object in good faith to any
specific employee for regulatory or security reasons.
(b) BGI Co-Located Employees shall be entitled to monitor the
Service Center Services, the Institutional Services and/or
iGroup Services subject to reasonable restrictions as State
Street shall determine, provided that: (i) such restrictions
shall not unduly inhibit such BGI Co-Located Employees'
ability to monitor State Street's compliance with the Service
Levels; and (ii) such BGI Co-Located Employees shall not be
entitled to give instructions or directions to any State
Street Personnel unless such direction constitutes Proper
Instructions.
(c) Any Co-Located Employees shall be required to enter into a
code of conduct, provide annual certification to State Street
of compliance with such code, submit to background checks
based on FDIC guidelines, federal bonding requirements and any
other regulatory requirements applicable to State Street, and
comply with such procedures designed to protect the
Intellectual Property and Confidential Information of State
Street and its customers as State Street requires of its own
employees operating in a similar environment.
(d) The applicable BGI Recipients will secure from each BGI
Co-Located Employee and provide to State Street a signed,
written acknowledgement that the employee is an employee of
such BGI Recipient or BGI (and not State Street) and that the
employee waives any and all employment-related claims for
compensation or otherwise it may have at any time against
State Street. Such BGI Recipient shall be responsible for
ensuring that any such BGI Co-Located Employees comply with
the obligations so established.
5. BGI RESPONSIBILITIES; RELIANCE ON INFORMATION.
5.1 BGI Obligations.
Master Services Agreement 13 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
(a) Other than breaches by a BGI Recipient of its obligations to
indemnify or adhere to obligations with respect to
confidentiality or the use or protection of State Street's
Intellectual Property, or failure by a BGI Recipient to pay
undisputed amounts when due, the failure of a BGI Recipient to
perform any of its responsibilities set forth in the Service
Modules will not be deemed a breach of the applicable Service
Module for the purposes of determining State Street's rights
to terminate or suspend Services under this Agreement or any
Service Module.
(b) Subject to Sections 3.4 and 5.1(a) above, the BGI Recipients
will:
(i) perform, and cause Third-Party Providers to perform,
as required under any Service Module;
(ii) give State Street such Proper Instructions as State
Street reasonably requests to enable State Street to
fulfill its duties and obligations under any Service
Module;
(iii) provide, and cause Third-Party Providers to make
available, information and data to State Street as
reasonably required for State Street to be able to
perform its obligations under any Service Module; and
(iv) use commercially reasonable review and control
procedures that are designed to ensure that:
(A) all trade instructions delivered to State
Street are duly authorized and comply with
applicable BGI Recipient Laws, and internal
compliance procedures and policies and
investment restrictions applicable to such
BGI Recipients; and
(B) information and data provided by the BGI
Recipients is accurate.
(c) The BGI Recipients will bear all expenses incurred by such BGI
Recipients' operation of their retained businesses that are
not assumed by State Street under this Agreement or any
Service Module. Notwithstanding the foregoing, BGI and the BGI
Recipients will not be responsible for the cost of any
conversions to State Street systems or changes required to be
made to BGI Technology in order to accommodate such
conversions, except to the extent such a Change is expressly
requested to be accelerated or otherwise modified in any
material respect by BGI or a BGI Recipient.
(d) Deemed Representations and Warranties.
(i) To the extent State Street is required to give (or is
deemed to have given) any representation or warranty
to a third party relating to any BGI Recipient or its
Customers in order to complete the relevant
transaction 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
Providers, clearing agencies, depositories and other
securities systems, such BGI Recipient will be deemed
to have made such representation or warranty to State
Street, except to the extent that any breach or
alleged breach of such representation or warranty
results from State Street's failure to perform its
obligations under any Service Module in accordance
with the Standard of Care.
Master Services Agreement 14 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
(ii) To the extent that State Street is required to give
(or will be deemed to give) any such representation
or warranty relating to the BGI Recipients or their
Customers other than in accordance with normal market
practices it will notify and obtain the written
consent of the BGI Recipients in advance of giving
such representation or warranty.
(iii) State Street will provide each BGI Recipient with a
quarterly report setting forth all actions taken on
behalf of such BGI Recipient under this Section
5.1(d).
(e) Proper Instructions.
(i) State Street will follow such authentication
procedures as may be agreed upon with each BGI
Recipient from time to time for purposes of verifying
that purported Proper Instructions have been
originated by an Authorized Person. The applicable
BGI Recipient will cause all instructions to comply
with such agreed upon procedures and shall cause oral
instructions to be promptly confirmed in writing or
by facsimile. Oral instructions will be considered
Proper Instructions if State Street reasonably
believes them to have been originated by an
Authorized Person.
(ii) The BGI Recipients acknowledge that the
authentication procedures agreed to by the Parties
are intended to provide a commercially reasonable
degree of protection against unauthorized
transactions of certain types and that such
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 in accordance with an agreed upon
authentication procedure will be deemed to have
originated from an Authorized Person and will
constitute a Proper Instruction hereunder or under a
Service Module for all purposes.
(iii) State Street will use Commercially Reasonable Efforts
to act upon and comply with any subsequent Proper
Instruction which modifies a prior instruction, but
cannot guarantee that such efforts will be successful
in the event that it has already acted upon the
original Proper Instruction.
(iv) State Street's sole obligation with respect to any
written Proper Instruction that is intended to
confirm a prior oral instruction shall be to use
Commercially Reasonable Efforts to detect any
discrepancy between the original instruction and such
confirmation in a manner consistent with the Standard
of Care and to report such discrepancy to such BGI
Recipient. Such BGI Recipient will be responsible, at
its expense, for taking any action, including any
reprocessing, necessary to correct any such
discrepancy or error, and, to the extent such action
requires State Street to act, such BGI Recipient will
give State Street specific Proper Instructions as to
the action required.
(v) An appropriate officer of each BGI Recipient will
maintain on file with State Street his or her
certification to State Street, of the names, powers
and signatures of the Authorized Persons. If there is
any change in the information set forth in the most
recent certification on file (including without
limitation any person named in the most recent
certification who is no longer an Authorized Person
as
Master Services Agreement 15 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
designated therein), an appropriate officer of the
applicable BGI Recipient, will sign a new or amended
certification which will include any additional or
omitted names, signatures or powers. State Street
will be entitled to rely and act upon any request,
direction, instruction, or certification in writing
signed by an Authorized Person of the BGI Recipient
given to it by each BGI Recipient (only with respect
to itself) that has been signed by Authorized Persons
named in the most recent certification received by
State Street. Any request, direction, instruction, or
certification in writing signed by an Authorized
Person of the BGI Recipient shall remain in effect
only until such time as State Street has had a
reasonably opportunity to begin to act upon the
immediately subsequent request, direction,
instruction, or certification in writing signed by an
Authorized Person of the BGI Recipient.
(vi) If and subject to appropriate security procedures
agreed by the Parties, Proper Instructions may
include communication effected directly between
electromechanical or electronic devices.
(vii) State Street will have no obligation to act in
accordance with purported Proper Instructions to the
extent State Street reasonably believes that they
conflict with the terms of this Agreement, any
Service Module or applicable Law; provided, however,
that State Street will have no obligation to ensure
that any instruction received by it would not
contravene any of the terms of this Agreement, any
Service Module or any such Law.
(A) State Street will provide the relevant BGI
Recipient with prompt notification if it
decides not to act in accordance with
purported Proper Instructions and such
notice will specify the reasons for its
determination.
(B) If the Parties are in disagreement with
respect to the existence of such a conflict,
the dispute will be escalated in accordance
with the dispute resolution procedures under
Section (b), except that the Parties agree
to accelerate the timeframes therein.
(f) Signature Authority.
(i) Each BGI Recipient will appoint 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 BGI Recipient in
connection with the discharge by State Street of its
duties under any Service Module.
(ii) State Street will exercise the foregoing authority in
each instance by one of the following methods: (A)
application of the facsimile signature of an
authorized employee of any BGI Recipient, as the same
may be provided by such BGI Recipient from time to
time; (B) manual signature of a State Street employee
authorized to act on behalf of such BGI Recipient; or
(C) as otherwise agreed by the Parties from time to
time.
(iii) The Parties will at all times maintain an updated
list of State Street Personnel authorized to exercise
the signature authority conferred hereby.
Master Services Agreement 16 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
(iv) The authority of State Street granted under this
Section will commence and be in full force and effect
as of the relevant Service Module Effective Date, and
such authority will remain in force and be binding up
to the time of the receipt by State Street of a
written revocation of said authority and reasonable
opportunity to act thereon or the termination or
expiration of the applicable Service Module.
(v) State Street will provide each BGI Recipient with a
quarterly report setting forth all actions taken on
behalf of such BGI Recipient under this Section
5.1(f).
5.2 Reliance on Information.
(a) In the course of discharging its duties under any Service
Module, State Street may act in reasonable reliance on the
data and information provided to it by or on behalf of a BGI
Recipient or by any persons authorized by a BGI Recipient
including, without limitation, any Third-Party Providers or
Authorized Data Sources.
(b) State Street will perform certain reconciliations, variance or
tolerance checks or other specific forms of data review: (i)
as specified in a Service Module; and (ii) in a manner
consistent with all applicable procedures of State Street,
including as set forth in the then-current Relationship
Management Manual. Except as provided in the preceding
sentence, State Street will 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 any BGI Recipient, any persons
authorized by any BGI Recipient or any Third-Party Providers,
including, without limitation, any Authorized Data Sources,
Authorized Designees, or Authorized Persons. State Street will
promptly notify the relevant BGI Recipient if it becomes aware
that any information received by it is incomplete, inaccurate
or insufficient in a material respect or is reasonably likely
to give rise to a Loss or in the event of a failure or delay
by any person to provide information required by State Street
to discharge its duties under any Service Module.
6. CHARGES, INVOICING AND PAYMENT
6.1 Charges.
(a) Each Service Module will contain a Fee Schedule that sets
forth the charges payable to State Street for the performance
of Services under such Service Module. The applicable BGI
Recipient will not be required to pay State Street any amounts
for or in connection with performing the Services and
fulfilling State Street's obligations under any Service Module
other than the charges and any amounts that State Street is
expressly permitted to charge under the terms of this
Agreement or any such Service Module.
(b) Except as State Street and the applicable BGI Recipients may
otherwise agree, amounts payable with respect to a Project or
Change will be payable upon acceptance by such BGI Recipients
in accordance with applicable acceptance testing procedures,
if any.
6.2 Expenses. Unless expressly provided otherwise in the applicable Service
Module:
(a) State Street acknowledges and agrees that expenses that it
incurs in performing the Services (including travel and
lodging, document reproduction and shipping, and long-distance
telephone) are included in the charges and rates in the
applicable Fee Schedule
Master Services Agreement 17 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
set forth in the Service Module. No such expenses will be
separately reimbursable by the BGI Recipients.
(b) Any travel and expenses incurred by State Street that are
separately reimbursable by a BGI Recipient must be approved
for reimbursement by such BGI Recipient in advance and
incurred by State Street in accordance with the then-current
applicable travel and expense policy of such BGI Recipient.
6.3 Taxes. "Taxes" means all taxes, levies or other like assessments,
charges or fees, including, without limitation, income, gross receipts,
excise, ad valorem, property, goods and services, value added ("VAT"),
import, export, sales, use, license, payroll, franchise, utility and
privilege taxes or other taxes, fees, duties, charges, levies,
regulatory fees, surcharges or assessments of any kind whatsoever
(whether payable directly or by withholding), together with any
interest and any penalties, additions to tax or additional amounts,
imposed by the United States, or any state, county, local or foreign
government or subdivision or agency thereof.
(a) Property Taxes. Each Party is responsible for all real
property, personal property, and similar ad valorem Taxes
imposed on such Party with respect to any item of property
that it owns or leases, to the extent applicable under a
Service Module.
(b) Income Taxes. Each Party is responsible for its own Taxes
(including franchise and privilege Taxes) imposed on the
performance or provision of Services that are based upon or
measured by overall net or gross income or receipts over a
period of time, any other Taxes incurred by such Party in
connection with its business, except as otherwise provided in
this Section.
(c) Withholding Taxes.
(i) Any and all payments made by a BGI Recipient under a
Service Module will be made free and clear of and
without deduction or withholding for any and all
Taxes; provided, however, that if the applicable BGI
Recipient is required under applicable Law to deduct
any taxes from such payments, then: (A) the sum
payable will be increased as necessary so that after
making all required deductions (including deductions
or withholdings applicable to additional sums payable
under this Section 6.3) State Street receives an
amount equal to the sum it would have received had no
such deductions or withholdings been made; (B) such
BGI Recipient will make such deductions or
withholdings; and (C) such BGI Recipient will pay the
full amount deducted or withheld to the relevant
governmental authority in accordance with applicable
Law.
(ii) Without limitation to any applicable Service Levels:
(A) Any such BGI Recipient will provide State
Street with the appropriate certificates
from the relevant Tax authorities confirming
the amount of the Taxes withheld and paid
over by such BGI Recipient in accordance
with this Section.
(B) The Parties further agree to complete and
submit to the relevant Tax authorities
within a reasonable period of time such
forms, certifications or other documents as
may be required to reduce or establish an
Master Services Agreement 18 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
exemption from the requirement to withhold
Tax on the payments by a BGI Recipient to
State Street hereunder.
(C) State Street will respond to reasonable
requests by a BGI Recipient to complete and
submit such forms, certifications or other
documents as may be required to reduce or
establish an exemption from the requirement
to withhold Taxes on the payments.
(d) Transfer Taxes. All charges and other sums payable under any
Service Module are exclusive of any applicable excise,
property, goods and services, VAT, import, export, sales, use,
consumption, gross receipts (which are transactional in
nature), utility, customs duties, or other Taxes, fees or
surcharges (including regulatory fees or surcharges) relating
to or assessed on the provision, purchase or consumption of
the Services (including any equipment element, as applicable)
under any Service Module ("Transfer Taxes"). All such Transfer
Taxes shall be the responsibility of, and will be paid by, the
applicable BGI Recipients. State Street will itemize on each
invoice all Transfer Taxes and/or Transfer Tax credits due or
owed by or to a BGI Recipient with respect to the Services
covered by such invoice. State Street will adjust the Transfer
Taxes applied to any charges in accordance with this Section
for any increases or decreases in the rate or changes in
applicability of such Transfer Taxes during the Service Module
Term. State Street shall properly invoice, collect and remit
such Transfer Taxes to the appropriate taxing authority, and
will bear any interest and penalties for failure to remit such
Transfer Taxes in a timely manner to the appropriate taxing
authority, provided that the applicable BGI Recipient has paid
to State Street the invoiced amount corresponding to such
Transfer Tax when due.
(e) Refunds. If any taxing authority refunds any Transfer Tax to
State Street that any BGI Recipient originally paid to State
Street in accordance with this Section, or State Street
otherwise becomes aware that any such Transfer Tax was
incorrectly and/or erroneously collected from any BGI
Recipient, or State Street otherwise receives an economic
benefit (such as an audit offset) as the result of incorrectly
and/or erroneously receiving such collected Transfer Taxes
from any BGI Recipient, then State Street will remit to any
such BGI Recipient the amount of refund or tax erroneously or
incorrectly collected, together with any interest thereon
received from the relevant taxing authority. In accordance
with Section 6.3(h), the BGI Recipients will as promptly as
practicable take such reasonable actions to assist State
Street in obtaining a refund (to the extent that State Street
has not already received the refund) of the Transfer Taxes
erroneously or incorrectly collected. The BGI Recipients will
promptly forward to State Street any refund of Transfer Taxes
erroneously or incorrectly collected (including interest paid
on such refunds) that they may receive.
(f) Impact of Relocating or Re-Routing the Delivery of Services.
Notwithstanding the provisions of Section 6.3(d) above, any
Transfer Taxes assessed on the provision of the Services for a
particular site resulting from State Street's relocating or
re-routing the delivery of Services for State Street's
convenience to, from or through a location other than the
locations used to provide the Services as of the applicable
Service Module Effective Date will be borne by State Street,
but only to the extent that they exceed the sum of the
Transfer Taxes that otherwise would be payable by a BGI
Recipient on the provision of the Services from, through or by
the locations used to provide the Services as of the
applicable Service Module Effective Date and any reduction in
the charges to a BGI Recipient that may arise as a result of
such a change.
Master Services Agreement 19 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
(g) State Street Intra-Corporate Transfers. The calculation of
Transfer Taxes, as applicable, will not include, and the BGI
Recipients will not pay, any Taxes that are imposed on
intra-corporate transfers or intermediate suppliers of the
Services within State Street's corporate family (including any
Affiliates).
(h) Cooperation and Notification. The Parties agree to fully
cooperate with each other to enable each Party to more
accurately determine its own Tax liability and to minimize
such liability to the extent legally permissible and
administratively reasonable, including in connection with the
filing of any Tax return or claim for refund, provided that
this does not result in material costs (including additional
Taxes) for the other Party. Each Party will provide and make
available to the other any exemption certificates, resale
certificates, information regarding out-of-state or
out-of-country sales or use of equipment, materials or
Services, and other information reasonably requested by the
other Party. Each Party will notify the other within a
reasonable amount of time of, and coordinate with the other
on, the response to and settlement of any claim for Taxes
asserted by applicable Tax authorities for which such other
Party is responsible hereunder. If a situation occurs where
State Street chooses to exercise its right to back ▇▇▇▇ the
relevant BGI Recipients for Transfer Taxes incurred pursuant
to any audit, notice or assessment for which such BGI
Recipients are obligated to pay under a Service Module, State
Street agrees to make every good faith effort to timely notify
such BGI Recipients of its intent to exercise said right.
(i) Other. State Street shall have no responsibility or liability
for any obligations now or hereafter imposed on the BGI
Recipients or State Street as custodian of the BGI Recipient's
account by the tax law of the United States or of any state or
political subdivision thereof.
6.4 Invoicing and Payment Due. The Fee Schedule to the applicable Service
Module and this Section 6.3(i) set forth the invoicing and payment
terms and procedures associated with the charges payable to State
Street for performance of the Services. State Street will include on
each invoice the calculations used to establish the charges therein.
(a) Supporting Documentation. State Street will maintain complete
and accurate records of, and supporting documentation for, the
amounts billable to and payments made by a BGI Recipient under
any Service Module, in accordance with generally accepted
accounting principles applied on a consistent basis. State
Street will provide the applicable BGI Recipient with
documentation and other information with respect to each
invoice as may be reasonably requested by a BGI Recipient to
verify accuracy and compliance with the provisions of the
Service Modules.
(b) Disputed Charges. Each BGI Recipient will pay all charges
(other than those that are disputed in accordance with the
terms hereof) when those payments are due. A BGI Recipient may
withhold payment of particular charges that the BGI Recipient
disputes in good faith; provided, however that such BGI
Recipient sends State Street a written statement of the
disputed portions within ninety (90) days of time of the
applicable withholding stating in reasonable detail the nature
of and reason for any such dispute. Both Parties will work
diligently and in good faith to effect an expeditious
resolution of any such dispute. [CONFIDENTIAL TREATMENT
REQUESTED]
(c) Invoice Aging. No BGI Recipient will be required to pay any
invoices issued by State Street or any third party more than
three (3) months after the month on which the fees
Master Services Agreement 20 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
owed thereunder have accrued. Notwithstanding the foregoing,
for any Services provided by any Subcontractor that is not an
Affiliate of State Street, such three-month period shall not
begin until State Street receives the invoice from the
applicable Subcontractor, but in no event will a BGI Recipient
be required to pay any invoices issued by State Street or any
third party for such Subcontractor services more than fifteen
(15) months after the month on which the fees accrued.
(d) Currency. State Street will invoice the applicable BGI
Recipient receiving the Services in the currency mutually
agreed upon and set forth in the Fee Schedule to each Service
Module.
6.5 [CONFIDENTIAL TREATMENT REQUESTED]
7. TERM AND TERMINATION.
7.1 Term, Extension and Renewal.
(a) Term of Master Services Agreement. Subject to the termination
rights set forth below, this Agreement will remain in effect
from Effective Date until the termination or expiration of all
Service Modules (the "Agreement Term").
(b) Term of Service Modules.
(i) Initial Term. Each Service Module will set forth its
Service Module Effective Date and its initial term
("Initial Term"), as well as any renewals, if
applicable.
(ii) Extension. Unless a BGI Recipient provides notice
indicating whether or not such BGI Recipient intends
to renew the Service Module pursuant to Section
7.1(b)(iii) or either Party otherwise terminates such
Service Module in accordance with its terms, the term
of such Service Module will automatically extend on a
month-to-month basis not to exceed six (6) months
from the end of the Initial Term (the "Extension
Period") on the terms and conditions (including
pricing) set forth in this Agreement and in such
Service Module.
(iii) Renewals.
(A) At the end of the Extension Period, the term
of the BGI Funds Service Modules will
automatically extend for additional two (2)
year terms on the terms and conditions
(including pricing) set forth in this
Agreement and in such Service Module,
unless: (I) earlier terminated pursuant to
the terms thereof; or (II) either Party
elects not to renew by providing notice to
the other Party at least six (6) months
prior to the then-current expiration date.
(B) A BGI Recipient may renew the term of each
other Service Module for up to two (2)
additional renewal terms of up to two (2)
years each on the terms and conditions
(including pricing) set forth therein upon
at least six (6) months' written notice to
State Street prior to the end of the
expiration date of the Initial Term or the
expiration date of the first extension,
unless earlier terminated pursuant to the
terms thereof.
Master Services Agreement 21 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
7.2 Termination, Generally.
(a) Unless expressly provided otherwise in a Service Module
(including under Sections 12 or 15 of the iGroup Service
Module and Service Center Service Module, respectively),
termination by a Party of any Service Module will be without
prejudice to and with full reservation of any other rights and
remedies available to the Parties. Termination by any BGI
Recipient of a Service Module will not affect State Street's
obligations with respect to: (i) any other BGI Recipient which
remains a party to the same or another Service Module, or (ii)
the same BGI Recipient if it remains a party to another
Service Module.
(b) No BGI Recipient will be obliged to pay any termination
charges or wind-down fees in connection with the termination
of a Service Module by such BGI Recipient in accordance with
the terms hereof or thereof, except as expressly provided
otherwise in such Service Module.
(c) If a BGI Recipient chooses to terminate a Service Module in
part pursuant to any applicable provision in such Service
Module, the fees payable pursuant to such Service Module will
be: (i) adjusted in accordance with the applicable Fee
Schedule to the extent the Services terminated have separate
fees associated with them; or (ii) equitably adjusted to only
reflect those Services that are not terminated in all other
circumstances.
7.3 Termination of Service Modules.
(a) By BGI Recipients.
(i) For Cause. A BGI Recipient may terminate (with
respect to itself only) or BGI may terminate (on
behalf of itself or the BGI Recipients) a Service
Module, in whole or in part by giving written notice
to State Street, with immediate effect, subject to
Article 8, if State Street:
(A) commits a material breach of its duties or
obligations under such Service Module
(except with respect to breaches of State
Street's obligations under Sections 4.1(h)
or 13.2(d), each of which are addressed
under Section 7.3(a)(i)(E) or (F) below),
which breach is not cured (or capable of
cure) within thirty (30) days after such BGI
Recipient notifies State Street of such
breach;
(B) commits numerous or repeated breaches of its
duties or obligations under any Service
Module, where the collective impact would
constitute a material breach thereof
("Persistent or Pervasive Breach"), provided
that: (1) such BGI Recipient has notified
State Street that a Persistent or Pervasive
Breach has occurred; and (2) State Street
has failed to cure the material impact of
such breach within thirty (30) days after
such notice;
(C) incurs any three (3) Service Level Defaults
in each of three (3) consecutive months;
(D) commits a material breach of its obligations
hereunder regarding compliance with any
State Street Known Laws (including without
limitation, as provided in 7.3(a)(vii)
below), which breach materially adversely
affects the BGI Recipient and is not cured
(or capable of cure)
Master Services Agreement 22 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
within thirty (30) days after such BGI
Recipient notifies State Street of such
breach;
(E) commits Systemic Violations as set forth in
Section 4.1(h)(iv), which in the BGI
Recipient's judgment are materially
detrimental to the business or reputation of
such BGI Recipient or the BGI Funds, unless
such BGI Recipient elects to receive
liquidated damages under a Service Module;
(F) commits a Detrimental Breach or series of
breaches where the collective impact would
constitute a Detrimental Breach of the
confidentiality provisions of Section
13.2(d) or of the Special Code of Conduct;
or
(G) becomes subject to a consent decree,
settlement agreement, letter of acceptance,
waiver and consent, or other order from or
agreement with a regulatory body,
commodities exchange, or other financial
services authority that has a material
adverse impact on State Street's ability to
perform the Services, except to the extent
that State Street reasonably demonstrates
that an Affiliate of State Street is capable
of performing the Services without a
material adverse impact thereon.
(ii) For Enduring Force Majeure Events. If a Force Majeure
Event substantially prevents or delays performance of
Services necessary for the performance of functions
reasonably identified by a BGI Recipient as critical
for more than three (3) consecutive days, then:
(A) in the case of an Industry Event, such BGI
Recipient may (with respect to itself only)
terminate all or any portion of the Service
Modules and affected Services, as of a date
specified by such BGI Recipient in a written
notice of termination to State Street, if
State Street is unable to restore the
Services to the extent any market impacted
by such Industry Event resumes trading or
trading support activities relating to such
market are occurring (e.g., settlement,
corporate actions, etc.). In case of such a
termination, State Street's fees under such
Service Modules will be equitably adjusted
as necessary to reflect the value of any
remaining Services;
(B) for all other Force Majeure Events, at the
option of such BGI Recipient, such BGI
Recipient may (with respect to itself only)
terminate all or any portion of the Service
Modules and Services so affected, as of a
date specified by such BGI Recipient in a
written notice of termination to State
Street, in which case, State Street's fees
under such Service Modules will be equitably
adjusted as necessary to reflect the value
of any remaining Services.
(iii) Occasioned by Law. A BGI Recipient may terminate
(with respect to itself only) a Service Module, in
whole or in part, as of a date specified in such
termination notice: (A) if State Street's ability to
perform the Services is materially adversely impacted
or affected by a Law or change in Law; (B) any order,
letter, directive or similar communication from a
governmental authority and regulatory organizations
or other entities with statutory or regulatory
authority over a BGI
Master Services Agreement 23 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
Recipient directing such BGI Recipient to terminate,
cease or otherwise withdraw from all or any material
part of such Service Module; or (C) if by operation
of Law, such Service Module is required to be
terminated.
(iv) Failure to Receive Consent. A BGI Recipient may
terminate (with respect to itself only) a Service
Module, in whole or in part, as of a date specified
in such termination notice, in the event that such
BGI Recipient fails to receive any consent required
by Law for State Street to continue to provide such
Services for such Fund and/or the underlying client
or Fund instructs such BGI Recipient that State
Street should not continue to act as provider of such
Services.
(v) For Provider's Insolvency. A BGI Recipient may
terminate (with respect to itself only) a Service
Module in its entirety if State Street: (A) becomes
insolvent or is unable to meet its debts as they
mature; (B) files a voluntary petition in bankruptcy
or seeks reorganization or to effect a plan or other
arrangement with creditors; (C) files an answer or
other pleading admitting, or fails to deny or
contest, the material allegations of an involuntary
petition filed against it pursuant to any applicable
statute relating to bankruptcy, arrangement or
reorganization; (D) will be adjudicated a bankrupt or
will make an assignment for the benefit of its
creditors generally; (E) will apply for, consent to
or acquiesce in the appointment of any receiver or
trustee for all or a substantial part of its
property; (F) any such receiver or trustee will be
appointed and will not be discharged within thirty
(30) days after the date of such appointment; or (G)
State Street's auditors issue an opinion expressing
doubt as to whether State Street can maintain itself
as a "going concern."
(vi) [CONFIDENTIAL TREATMENT REQUESTED]
(vii) [CONFIDENTIAL TREATMENT REQUESTED]
(viii) Consequences of Non-Compliance. If a governmental
authority makes a determination of a BGI Recipient's
material non-compliance or material violation of Law,
and imposes a fine, penalty or other formal
consequence, as a result of a material failure by
State Street Personnel to comply with the State
Street Known Laws, the BGI Recipient may terminate
(with respect to itself only) the affected Service
Modules in whole or in part for cause, except to the
extent that State Street is able to cure such failure
to comply within thirty (30) days after such
determination.
(ix) As Set Forth in Service Modules. A BGI Recipient may
terminate (with respect to itself only) a Service
Module as otherwise set forth in such Service Module.
(x) Dependent Service Modules. The expiration or
termination of a Service Module will not terminate
any other Service Module; provided, however, that a
BGI Recipient may, upon termination of a Service
Module, terminate any other Service Module to which
it is a signatory that is, by its terms, dependent on
the terminated Service Module, and in such event the
BGI Recipient will be entitled to a refund of any
amounts pre-paid for Services not yet rendered
thereunder.
(b) By State Street. State Street may, by giving written notice to
the relevant BGI Recipient, terminate any Service Module with
respect to such BGI Recipient as of a date specified
Master Services Agreement 24 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
in the notice of termination only if each such BGI Recipient:
(i) materially breaches (which shall be deemed to include any
material breach by any Third-Party Provider or other agent of
such BGI Recipient) any of its obligations to indemnify or
adhere to obligations with respect to confidentiality or the
use or protection of State Street's Intellectual Property,
whether arising under this Agreement, any Service Module, or
the License Agreements, which breach is not cured (or capable
of cure) within thirty (30) days after State Street notifies
BGI of such breach; or (ii) fails to pay State Street
undisputed fees when due under such Service Module totaling at
least four (4) months' fees, and fails to cure such breach
within thirty (30) days of notice from State Street of the
failure to make payment.
(c) Expiration of Termination Rights. Except with respect to
termination for Change of Control of State Street under
Section 7.3(a)(v), neither Party may invoke any termination
right under this Section 7.3 after one (1) year following the
later of: (i) the date upon which such Party obtains actual
knowledge of the event which first gave rise to such
termination right, and (ii) the date upon which such Party
becomes aware of the full and final impact of such event.
8. DISENGAGEMENT ASSISTANCE
In connection with the termination or expiration by BGI or any BGI
Recipient of its participation in any Service Module, State Street will
perform the disengagement assistance services for the affected BGI
Recipient(s) as provided in Exhibit H hereto ("Disengagement
Assistance"). The provision of Disengagement Assistance by State Street
shall be subject to (a) any restrictions or limitations imposed by
applicable State Street Laws or (b) other measures reasonably necessary
to protect the Intellectual Property or Confidential Information of
State Street (including that of its customers).
9. COMPLIANCE WITH LAWS, POLICIES AND USE RESTRICTIONS
9.1 Compliance with Laws.
(a) Generally.
(i) "State Street Known Laws" shall mean all BGI
Recipient Laws of which State Street has: (A) actual
knowledge; and (B) actual knowledge that such BGI
Recipient Laws are applicable to the BGI Recipients
and the Services. State Street will review and comply
with all State Street Laws and, subject to Section
9.1(a)(iv) with respect to Proper Instructions, State
Street shall perform the Services in accordance with
all State Street Known Laws.
(ii) State Street will: (A) review and comply with all
State Street Laws; and (B) perform the Services such
that no BGI Recipient will violate any State Street
Known Law.
(iii) Each Party (and, in the case of State Street, its
Subcontractors) will use Commercially Reasonable
Efforts to obtain and maintain all necessary
approvals, licenses, consents, permits or
authorization of any person or entity, or any notice
to any person or entity, the granting of which is
required by Laws applicable to such Party for: (A)
the consummation of the transactions contemplated by
the Service Modules; and (B) the provision or receipt
(as applicable) of the Services
Master Services Agreement 25 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
in compliance with all Laws. Upon reasonable request
therefor, each Party will provide reasonable
cooperation to the other Party, at such other Party's
expense, to obtain and maintain any such approvals.
(iv) If, at any time, State Street desires that a BGI
Recipient interpret a State Street Known Law for
purposes of State Street's compliance with such State
Street Known Law in providing the Services to such
BGI Recipient or performing the Services in a manner
that such BGI Recipient will not violate such State
Street Known Law as a result of State Street's
failure to meet its Standard of Care, State Street
will submit a request in writing to such BGI
Recipient requesting guidance on such BGI Recipient's
counsel's interpretation of such State Street Known
Law as it applies to the BGI Recipient. Such BGI
Recipient will respond to such request as soon as
reasonably practicable and such guidance will be a
Proper Instruction by such BGI Recipient to State
Street with respect to State Street's performance of
the Services that are the subject of such inquiry.
(v) Each BGI Recipient will review and comply with all
BGI Recipient Laws applicable to it.
(b) Change in Laws.
(i) Each Party will bear the risk of and have financial
responsibility for any change in Laws as set forth in
the Change Procedures.
(ii) To the extent that delivery of the Services will be
impacted by any change in State Street Laws or State
Street Known Laws, State Street will so notify the
other affected BGI Recipients of any required change
to the Services or to any systems used to provide the
Services (collectively, "Changes to the Services")
and the impact.
(c) Non-Compliance.
(i) If State Street becomes aware of any non-compliance
of State Street Personnel or a Subcontractor with any
Law, State Street will promptly notify the affected
BGI Recipients in writing, to the extent that such
non-compliance affects State Street's ability to
perform its obligations under this Agreement or any
Service Module.
(ii) If any BGI Recipient becomes aware of any
non-compliance of State Street Personnel or a
Subcontractor with any State Street Known Law and
becomes aware that such non-compliance affects State
Street's ability to perform its obligations under
this Agreement or any Service Module, such BGI
Recipient will promptly notify State Street in
writing.
(iii) State Street will use Commercially Reasonable Efforts
to promptly take necessary action to correct such
non-compliance by State Street or such Subcontractor,
to the extent that such non-compliance affects State
Street's ability to perform its obligations under
this Agreement or any Service Module.
(A) Unless such non-compliance is caused by a
BGI Recipient's failure to comply with its
duties and obligations hereunder, State
Street will
Master Services Agreement 26 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
promptly implement such Changes to the
Services as may be necessary to correct such
non-compliance at State Street's sole cost
and expense; and
(B) If such non-compliance is caused by a BGI
Recipient's failure to comply with its
duties and obligations hereunder, State
Street will promptly implement such Changes
to the Services as may be necessary to
correct such non-compliance and the affected
BGI Recipients will reimburse State Street
for any actual and demonstrable costs and
expenses incurred by State Street in
connection therewith.
(d) Other Assistance. State Street will supply to the applicable
BGI Recipients copies of all annual financial accounts of the
BGI Recipients and, upon request, other information maintained
by State Street on behalf of the BGI Recipients, solely to the
extent required by the BGI Recipients in order to demonstrate
its compliance with applicable Laws and to conduct business
with its Customers. State Street will also assist the affected
BGI Recipients with their dealings with regulatory authorities
to the extent directly related to and reasonably required as a
result of the provision of the Services.
9.2 Compliance with Certain Policies and Use Restrictions.
(a) Compliance with On-Site Policies. Each Party will comply in
all material respects with the other Party's rules and
regulations applicable to visitors when on the premises of the
other Party, provided that each Party's employment policies
shall apply to such Party's personnel and not the policies of
the other Party. State Street will maintain physical security
procedures that are designed to safeguard BGI Data and
Confidential Information of each BGI Recipient provided to
State Street as part of the Services against unauthorized
access, which procedures will at all times meet the standards
set forth in Exhibit E or standards that are reasonably likely
to be as protective of BGI Data and Confidential Information
of such BGI Recipients in all material respects.
10. DATA PROTECTION
10.1 BGI Data.
(a) "BGI Data" means all data and information: (i) submitted to or
held by State Street by or on behalf of such BGI Recipient,
including data submitted by or relating to providers, members
and customers of such BGI Recipient; (ii) obtained by or on
behalf of State Street Personnel in connection with Services
and/or the Service Modules that relates to BGI, a BGI
Recipient, or providers, members and customers of BGI or a BGI
Recipient; or (iii) to which State Street Personnel have
access in connection with the provision of the Services that
relates to a BGI Recipient, or providers, members and
customers of such BGI Recipient, and including all Personal
Information. All BGI Data is, or will be, and will remain the
property of the applicable BGI Recipient and will be deemed
BGI Confidential Information.
(b) Without limiting the foregoing, no ownership rights in BGI
Data will accrue to State Street or any State Street Personnel
by reason of State Street or any State Street Personnel
entering, deleting, modifying or otherwise Processing any BGI
Data.
Master Services Agreement 27 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
(c) Use Restrictions.
(i) Without approval from the applicable BGI Recipient
(in its sole discretion), BGI Data will not be: (A)
used by State Street other than is necessary for
State Street's performance of the Services under the
applicable Service Module; (B) disclosed, sold,
assigned, leased or otherwise provided to third
parties by State Street other than as Confidential
Information may be disclosed; or (C) commercially
exploited (including, without limitation, via
Processing or data mining) by or on behalf of State
Street or any State Street Personnel.
(ii) State Street will not possess or assert liens or
other rights in or to BGI Data.
(iii) State Street hereby irrevocably and perpetually
assigns, transfers and conveys to the applicable BGI
Recipients without further consideration all of its
and their right, title and interest, if any, in and
to BGI Data. At BGI's request, State Street will
execute and deliver to the BGI Recipients any
financing statements or other documents that may be
reasonably necessary or desirable under any Law to
preserve, or enable such BGI Recipients to enforce,
their rights hereunder with respect to BGI Data.
(iv) No removable media on which BGI Data is stored may be
used or re-used to store data of any other customer
of State Street or to deliver data to a third party,
including another State Street customer, unless
securely erased in a manner consistent with the
Standard of Care.
(v) Each BGI Recipient will 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 BGI Data transmitted to
State Street that are in addition to the requirements
set forth in this Agreement or any Service Module,
provided, however, that any change to State Street's
obligations as a result thereof shall be subject to
the Change Procedures.
(d) Return of Data/Record Retention. At the request of a BGI
Recipient at any time during the applicable Service Module
Term or upon the expiration or earlier termination of the
Service Module, State Street will: (i) promptly return to such
BGI Recipients, in a useable machine ready format or such
other format as State Street and such BGI Recipient shall
agree upon, all or any part of the BGI Data attributable to
such BGI Recipient; and (ii) erase or destroy all or any part
of such BGI Data in State Street's possession, in each case to
the extent so requested by such BGI Recipient, subject to any
data or record retention requirements applicable to State
Street under applicable Law and excluding any data that State
Street is no longer maintaining as part of its then-current
electronic records. Notwithstanding anything herein to the
contrary, State Street may retain copies of BGI Data to pursue
or defend claims or other actions under or relating to this
Agreement or any Service Module and as otherwise consistent
with its regulatory and audit (including Fund audit)
obligations, which data shall remain subject to the
confidentiality rights and obligations hereunder.
(e) BGI Access.
(i) State Street will make available to the BGI
Recipients any BGI Data that is held in paper form
within a reasonable time after request therefor. In
addition, State
Master Services Agreement 28 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
Street will store and make available to the BGI
Recipients any BGI Data that it maintains in
electronic form on the State Street Technology in a
manner that enables it to be: (A) properly identified
as information relating to the provision of the
Services to the BGI Recipients; and (B) easily,
promptly and independently extracted, copied or
transferred from any storage media on which it is
kept.
(ii) Except as specifically set forth in this Agreement or
a Service Module or as otherwise required under
applicable Law, State Street will have no implied
right to access any data files, directories of files,
or other BGI Confidential Information, except to the
extent necessary to perform the Services and will
access and/or use such files and BGI Confidential
Information only as and to the extent necessary to
perform the Services.
10.2 Data Safeguards and Security. Within a reasonable time after the
Effective Date, State Street will establish and maintain generally
accepted industry "best practices" systems security measures designed
to guard against the destruction, loss, or alteration of BGI Data
provided to State Street that are no less rigorous than those
maintained by State Street for its own information of a similar nature,
and that are consistent with the Standard of Care. State Street will
promptly correct any errors or inaccuracies in BGI Data caused by State
Street's failure to meet the Standard of Care or in the reports
delivered to the applicable BGI Recipients under the Service Modules.
(a) Data Security Plan. Within a reasonable time after the
Effective Date, State Street will implement, maintain and
update a data security plan with respect to BGI Data provided
to it that is consistent with the standards set forth in
Exhibit E (which will include both physical and electronic
measures) or, following the Effective Date, such other
generally accepted industry standards as are reasonably likely
to be as protective of BGI Data as Exhibit E, which standards
shall be applicable to the parts within State Street that have
access to BGI Data. Any changes to the safeguards in Exhibit E
that are specifically designated as safeguards that State
Street has agreed to adopt specifically for the BGI Recipients
will require prior review and approval from the affected BGI
Recipients, which approval shall not be unreasonably withheld.
(b) Data Remediation. State Street will remedy any destruction,
loss or alteration of any BGI Data where such destruction,
loss or alteration is caused by State Street, any State Street
Personnel, or a Subcontractor, to the extent technologically
feasible and commercially reasonable, and only upon a BGI
Recipient's reasonable request. State Street will promptly
notify the relevant BGI Recipients of any material
destruction, loss or alteration of BGI Data provided to State
Street or a Subcontractor of which State Street becomes aware.
(c) Right to Review. Each BGI Recipient reserves the right to
review State Street's policies and procedures used to maintain
the security and confidentiality of Personal Information,
subject to the limitation set forth in Section 12.2. The
provisions of this Section, are in addition to, and will not
be construed to limit any other of the Parties' respective
confidentiality obligations under the Service Modules.
10.3 Data Security Breaches; Remediation of Malicious Code.
(a) Data Security Breaches. State Street will monitor and record
security related events on all systems and log such events. If
State Street discovers or become aware of an actual
Master Services Agreement 29 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
breach of security relating to BGI Data, except to the extent
instructed by legal or regulatory authorities not to do so:
(i) promptly notify the BGI Regional Program Manager by
telephone and e-mail as soon as practicable but in
any event within the earlier of any of the following:
(i) 5:00 PM, local time, the next Business Day after
detecting or becoming aware of such breach; (ii)
forty-eight (48) hours after detecting or becoming
aware of such breach; or (iii) within a shorter
timeframe if required under a State Street Known Law;
(ii) provider confirmatory written notice or fax to the
BGI Regional Program Manager as soon as practicable
after detecting or becoming aware of such breach; and
(iii) investigate and remediate the effects of the breach,
and provide the applicable BGI Recipients with
reasonable assurance that safeguards consistent with
State Street's obligations under this Article 10 have
been implemented.
(b) Malicious Code. Generally, the Parties will provide reasonable
cooperation to one another in order to mitigate the impact of
any Malicious Code on the Services, regardless of the origin
of such Malicious Code. Without limiting any Party's other
obligations under the Service Modules, if any Malicious Code
is found to have been introduced by such Party (or any third
party acting on such Party's behalf or direction) into any
system used to provide or receive the Services, such Party
will remove such Malicious Code at its expense or, at the
election of such other Party, compensate the other Party for
the reasonable expense of any such removal, and in any case
(wherever such Malicious Code originated), such Party will
exercise Commercially Reasonable Efforts, at no charge to the
other Party, to eliminate, and reduce the effects of, the
Malicious Code. If such Malicious Code causes a loss of
operational efficiency or loss of data, State Street will
mitigate such losses and use Commercially Reasonable Efforts
to restore any data lost of the State Street Technology,
subject to reimbursement for reasonable expenses incurred on
account of Malicious Code introduced by a BGI Recipient (or
any third party acting on its behalf or direction).
11. CONTRACT AND PROJECT MANAGEMENT
11.1 Governance, Meetings and Reports. State Street acknowledges and agrees
that one of the key business requirements of the BGI Recipients is for
State Street to provide the Services in a consistent, integrated manner
across all State Street locations, regardless of geography. To meet
such requirement, State Street will organize its relationship with the
BGI Recipients and its service delivery team in accordance with the
governance committees, processes and procedures set forth in Exhibit D
and this Article 11.
11.2 Relationship Management Manual.
(a) Generally. State Street has delivered to the BGI Recipients a
copy of a "Process Review Document" drafted in 2006.
(b) Updates. The Parties acknowledge and agree that the Process
Review Document is an operational document, which State Street
may revise with the BGI Recipients' written approval and
without the need to amend the Service Modules. Within ninety
(90) days
Master Services Agreement 30 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
after the Effective Date of this Agreement, State Street shall
deliver an updated Process Review Document to the BGI
Recipients. Thereafter, at least annually, State Street shall
update the Process Review Document and provide such updated
version to the BGI Recipients.
(c) Perpetual Use of the Manual.
(i) State Street acknowledges and agrees that each BGI
Recipient and its Affiliates will have the right to
copy and make derivative works of the Process Review
Document solely for the purpose of servicing the BGI
Recipients.
(ii) Each BGI Recipient and its Affiliates may provide
copies of the Process Review Document to Third Party
Providers solely for the purpose preparing to service
and servicing the BGI Recipients.
11.3 Change Procedures. Any Change to the general terms and conditions in
the Service Modules (including changes to the Schedules and
Attachments) will be made in accordance with Exhibit C. Each Party
agrees to consider in good faith any Change request of the other Party
and will not unreasonably withhold or delay its approval of any such
request.
12. AUDIT / RECORDS / LEGAL DISCOVERY
12.1 BGI Audit Rights. Unless prohibited by applicable Laws, the BGI
Recipients, their auditors (internal or external) and regulators (to
the extent legally required), each as a BGI Recipient may from time to
time designate (collectively, the "BGI Auditors"), may perform audits,
inspections and examinations of: (i) any location or facility or
portion thereof at or from which State Street Personnel are providing
the Services (including, as applicable, walk-throughs of primary and
backup data centers, subject to generally-applicable restrictions
imposed by any third party operators of such data centers); (ii)
Subcontractors (subject to the limitations in Section 12.2(a)(iv)
below); and (iii) data, books, logs, records and other documentation in
any media relating to the Services for the following purposes:
(a) to verify and ascertain the accuracy and correctness of volume
calculations, Service Levels and other measures of
performance, credits and other amounts due and payable to the
applicable Parties to the applicable Service Modules hereunder
(including by means of access to the most recent
publicly-available audited financial statements of State
Street and/or its Subcontractors or Permitted Delegates, as
applicable, and relevant information on applicable insurance
coverages to the extent available to State Street);
(b) to verify the integrity of BGI Confidential Information and
State Street's compliance with its duties and obligations with
respect to information protection, security and
confidentiality, to the extent set forth in Section 12.4(a)
below;
(c) to verify State Street's compliance with State Street Known
Laws in any country from or to which Services are provided,
including to verify the integrity and correctness of the
training and certification qualifications offered to and
obtained by State Street Personnel where training or
certification is required to comply with State Street Known
Laws;
(d) to verify the integrity of any data provided by State Street
under a Service Module;
Master Services Agreement 31 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
(e) to verify State Street's compliance with regulatory inquiries
relating to the BGI Recipients or the Funds;
(f) to permit the Chief Compliance Officer of the BGI Funds to
comply with the relevant requirements of Rule 38(a)-1;
(g) to verify State Street's compliance with policies and
procedures of a BGI Recipient to which State Street is
required to comply under a Service Module; and
(h) to verify State Street's compliance with any other provision
of this Agreement or the Service Modules.
State Street will make State Street Personnel available to the BGI
Auditors for the purposes described in this Section above.
12.2 Limitations and Cooperation.
(a) Limitations.
(i) Audits will be conducted during State Street's
business hours and upon reasonable notice to State
Street except in the case of emergency or as
otherwise may be legally required. Each BGI Recipient
and BGI Auditors will: (A) comply with State Street's
reasonable security and confidentiality requirements
when accessing locations, facilities or other
resources owned or controlled by State Street; and
(B) cooperate with State Street to minimize any
disruption to State Street's business activities,
subject to the requirements of any regulatory
authorities.
(ii) Audit rights of the BGI Recipients will be subject to
State Street's rights to impose reasonable
limitations on the frequency and timing of such
audits and inspections requested by the BGI
Recipients, except that State Street will not limit
the frequency or timing of audits or inspections by
regulators of the BGI Recipients.
(iii) State Street will not disclose or make any
information available or provide access to: (A) the
extent that such information is subject to legal
privilege; (B) the extent that disclosure or access
would result in a breach of law or duty of
confidentiality or privacy owed to a third party or
any State Street Personnel; (C) the extent that such
information is unrelated to the BGI Recipients or the
provision of the Services; (D) State Street's
internal audit reports, compliance or risk management
plans or reports, work papers and other reports and
information relating to management functions; or (E)
the extent that such access by the BGI Recipients
would, in State Street's reasonable opinion,
compromise the security of its technology systems or
the confidentiality of its customers.
(iv) Any audits of Subcontractors permitted hereunder
shall be subject to all terms and conditions
applicable thereto under any agreement between State
Street and such Subcontractors, which audit rights
State Street will: (A) request in good faith from
such Subcontractor; and (B) negotiate in good faith
to include in such agreement when State Street is
otherwise renegotiating such agreement.
Master Services Agreement 32 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
(b) State Street Cooperation.
(i) Subject to the limitations set forth in 12.2(a)
above, State Street and State Street Personnel will
provide such assistance as may be reasonably required
to carry out audits as permitted hereunder, including
providing reasonable use of State Street locations,
facilities and other resources reasonably required in
connection therewith, subject to reimbursement for
any material out-of-pocket expenses incurred by State
Street in cooperating with audit activities directed
by a BGI Recipient that are outside the ordinary
course of customary audits that would be expected in
connection with services similar to the Services.
(ii) Subject to the limitations set forth above, State
Street further agrees to cooperate with and
facilitate: (A) audits of BGI Recipients conducted by
independent auditors; and (B) audits or performance
of "agreed upon procedures" by outside auditors as
requested by the BGI Recipients or Customers.
12.3 Audit Follow-Up and Remedial Action.
(a) Audit Follow-Up. At the conclusion of an audit or examination,
State Street will cooperate with the applicable BGI Recipients
to provide factual concurrence with issues identified in the
review. State Street and such BGI Recipients will meet to
review each final audit report promptly after the issuance
thereof.
(b) Compliance Corrections. If an audit reveals any breach by
State Street with any of its material obligations under a
Service Module and State Street is notified of such breach,
State Street will promptly use Commercially Reasonable Efforts
to cure such breach, provided such breach is capable of cure.
To the extent that any BGI Recipient becomes aware of a breach
revealed by an audit, such BGI Recipient will notify State
Street of such breach.
(c) Overcharge. If, as a result of an audit regarding State
Street's charges, it is determined that State Street has
overcharged a BGI Recipient, such BGI Recipient will notify
State Street of the overcharged amount and State Street will
promptly pay to such BGI Recipient such amount, plus interest
at the prevailing Federal Funds rate, calculated from the date
of State Street's receipt of the overcharged amount until the
date of payment to such BGI Recipient. If any such audit
reveals an undercharge to State Street of five percent (5%) or
more of the annual service charges for the period audited, the
BGI Recipient will notify State Street and pay such
undercharge, without interest, within thirty (30) days of
discovery of such undercharge. If any such audit reveals an
overcharge to a BGI Recipient of five percent (5%) or more of
the annual service charges for the period audited, State
Street will, at the option of such BGI Recipient, issue to
such BGI Recipient a credit (including such interest) against
the charges and reimburse such BGI Recipient for the
reasonable out-of-pocket expenses of such audit relating to
such charges.
(d) Training/Certification. If as a result of an audit regarding
State Street's training and/or certification requirements, it
is determined that State Street's training or qualifications
are not in compliance with State Street Known Laws, State
Street will as soon as reasonably practicable rectify such
non-compliance at State Street's cost and provide the affected
BGI Recipients with reasonable evidence thereof.
Master Services Agreement 33 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
12.4 State Street-Conducted Audits.
(a) [CONFIDENTIAL TREATMENT REQUEST]
(b) Data Security and Confidentiality Audits.
(i) [CONFIDENTIAL TREATMENT REQUEST]
(ii) Notwithstanding the limitations in Section 12.2(a),
State Street will provide access to such auditor that
is necessary to enable such auditor to assess the
following: (A) State Street's compliance with its
data security obligations hereunder; and (B) whether
any incident has occurred that has compromised the
security of State Street Technology in a manner such
that BGI Data has been improperly disclosed or
altered or that has created a reasonable likelihood
that such a disclosure or alteration could occur as a
result thereof (a "Data Security Breach").
(iii) Such access may include browse-only access to State
Street Technology consistent with the access provided
to BGI Recipients in connection with the Services,
but excluding: (A) access that to State Street
Technology that would permit the auditor to view
information of other clients of State Street; and (B)
the ability to perform any penetration or similar
testing.
(iv) BGI shall be entitled to a report of the audit that
will describe whether State Street has met its data
security obligations hereunder and whether or not a
Data Security Breach has occurred, but that shall
otherwise exclude information that State Street
reasonably deems appropriate to exclude.
(v) If any such audit reveals that State Street has
failed to meet its data security obligations
hereunder or that a Data Security Breach has
occurred, upon BGI's request (and at its sole cost
and expense), State Street shall: (A) provide the
affected BGI Recipients with sufficient information
to determine the length, scope and impact of such
failure; and (B) employ an independent third-party
auditor jointly selected by State Street and BGI to
perform a follow up audit to determine whether State
Street has: (I) cured its failure to meet its data
security obligations hereunder; or (II) remediated
the Data Security Breach such that an improper
disclosure or alteration of BGI Data is no longer
reasonably likely to occur as a result of the
incident giving rise to the follow up audit.
(vi) Additional follow-up audits may be required to the
extent any such audit reveals that the data security
matters have not been remediated in all material
respects.
(vii) The results of any such audits and reports provided
in connection therewith shall be Confidential
Information of State Street.
(c) SAS 70 Audit.
(i) State Street will cause a Type II Statement of
Auditing Standards ("SAS") 70 audit (or equivalent
audit) to be conducted at least annually for each
facility, including any shared services facility at
or from which State Street provides the Services. No
SAS 70 audit conducted pursuant to this Agreement or
a Service
Master Services Agreement 34 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
Module will be materially diminished in scope as
compared to the scope of State Street's SAS 70 audits
as of the Effective Date.
(ii) State Street will promptly provide each BGI Recipient
with its updated SAS 70 Type II report on no less
than an annual basis (the "SAS 70 Results").
Thereafter, State Street will provide to the BGI
Recipients certifications indicating material changes
to State Street's internal control environment in
such frequency as the BGI Recipients may reasonably
request to discharge their duties under applicable
Law or to the BGI Funds.
(iii) State Street will permit each BGI Recipient to
participate in the planning of each SAS 70 audit,
will confer with the BGI Recipients as to the scope
and timing of the audit and will use Commercially
Reasonable Efforts to accommodate requirements and
concerns of the BGI Recipients to the extent
practicable.
(iv) From and after the conversion of the Services from
the systems used prior to the Effective Date to other
State Street Technology, in the event the foregoing
requirements would require State Street to alter any
SAS 70 that it would have performed for its other
customers State Street shall notify the applicable
BGI Recipient of the same and such BGI Recipient will
elect to either: (1) waive such requirements; or (2)
pay any incremental costs incurred by State Street as
a result thereof (including the cost of separate SAS
70 audits for such BGI Recipients to the extent
reasonably required).
12.5 Record Maintenance and Retention. State Street will maintain accurate,
complete and up-to-date books and records relating to the Services in
compliance with the State Street Laws and State Street Known Laws. The
BGI Recipients will retain ownership of such books and records, with
each BGI Recipient owning those books and records that pertain to the
Services provided under the Service Modules to which such BGI Recipient
is a party. State Street will report as soon as possible any matters
that are reasonably likely to materially adversely affect performance
of its record maintenance and retention obligations under the Service
Modules. Unless prohibited by applicable Laws, State Street will
maintain and provide access upon a BGI Recipient's request to the
records, documents and other information (other than any BGI Data or
BGI Confidential Information returned by State Street in accordance
herewith) required to comply with audit rights under the Service
Modules until the later of: (a) ten (10) years after expiration or
termination of the final Service Modules or such longer period required
by a State Street Known Law; or (b) when pending matters relating to
the applicable Service Modules (e.g., disputes) are closed or
applicable statutes of limitations have lapsed.
12.6 Communication with Regulators. If State Street receives any inquiry
from any regulator regarding a BGI Recipient or Customers in relation
to the Services, then except to the extent such inquiry relates to
other customers of State Street, State Street will, to the extent
legally permissible, consult the relevant BGI Recipient before
responding to such inquiry and will comply with BGI Recipient's
reasonable requests regarding the content or timing of such response,
provided, however, that the foregoing shall not limit or restrict State
Street in any manner in complying with its regulatory obligations in a
manner that it, in its sole discretion, shall determine to be compliant
with Law or necessary for the maintenance of its ongoing relationships
with its regulatory authorities.
12.7 Legal Discovery. State Street acknowledges and agrees that each BGI
Recipient is required to preserve and produce electronic data in
support of such BGI Recipient's legal discovery
Master Services Agreement 35 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
obligations, as they may arise, for investigations and/or litigation.
As part of the Services, and to the extent not prohibited by applicable
Laws, State Street will make available to such BGI Recipient BGI Data
that State Street maintains and that is the subject of any legal
discovery obligation of such BGI Recipient, subject to reimbursement
for out of pocket costs reasonably incurred by State Street to the
extent such assistance is not capable of being performed by State
Street Personnel during normal business hours without disruption to the
Services.
12.8 Other Disclosures.
(a) State Street will disclose all information related to the
Services and any compensation or fees received by State Street
or its Affiliates that is requested by a BGI Recipient in
order for either the BGI Recipient or a client of a BGI
Recipient that invests in or had an investment in a BGI
Recipient reasonably requires to comply with the reporting and
disclosure requirements of Title I of ERISA and the
regulations, forms and schedules issued thereunder.
(b) State Street will furnish each BGI Recipient with such daily
information regarding the BGI Recipient's cash and Securities
positions and activity, as State Street and such BGI Recipient
will from time to time agree.
13. CONFIDENTIALITY
13.1 Definition of Confidential Information.
(a) Definition.
(i) "Confidential Information" of a Party means any
non-public, commercially sensitive information
belonging to, concerning or in the possession or
control of a Party or its Affiliates (the "Furnishing
Party") that is furnished, disclosed or otherwise
made available of the other Party or its Affiliates
(the "Receiving Party"), and which is:
(A) either marked or identified in writing as
confidential, proprietary, secret or with
another designation sufficient to give
notice of its sensitive nature;
(B) of a type that a reasonable person would
recognize it to be commercially sensitive;
or
(C) BGI Confidential Information or State Street
Confidential Information.
(ii) "BGI Confidential Information" includes all
information to which State Street has access in BGI
Locations or systems, BGI Proprietary Information,
BGI Data, BGI Software and other Intellectual
Property of BGI Recipients and related systems access
codes and information concerning BGI Recipients and
their Affiliates' existing or proposed products,
product types, product structures, product
strategies, target markets, timing of new product
launches, historic trade data, fund performance data,
corporate actions determinations, trading
information, trading strategies, processes, trend
information, securities lending data and markets,
billing data, marketing strategies, financial
affairs, employees, shareholder list and information
related to shareholders, Customers or suppliers,
Master Services Agreement 36 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
and any non-public personal information as defined by
Regulation S-P, regardless of whether or how it is
marked.
(iii) "State Street Confidential Information" includes
State Street proprietary information, Work Product
and all other Intellectual Property of State Street,
client lists, marketing strategies, and all data and
information concerning State Street's clients, in
their capacity as State Street's clients, financial
affairs, product types, product structures, product
strategies, timing of new product launches, and fees
for Services or other products or services,
regardless of whether or how such materials are
marked.
(b) No Implied Rights. Each Party's Confidential Information will
remain the property of that Party. Nothing contained in this
Article will be construed as obligating a Party to disclose
its Confidential Information to the other Party, or as
granting to or conferring on a Party, expressly or by
implication, any rights or license to the Confidential
Information of the other Party. Any such obligation or grant
will only be as provided by other provisions of the Service
Modules.
(c) Exclusions. None of the Confidential Information, State Street
Confidential Information or BGI Confidential Information shall
include any information that the Receiving Party can
demonstrate: (i) was, at the time of disclosure to it, in the
public domain; (ii) after disclosure to it, is published or
otherwise becomes part of the public domain through no fault
of the Receiving Party; (iii) was in possession of the
Receiving Party at the time of disclosure to it and was not
the subject of a pre-existing confidentiality obligation; (iv)
was received after disclosure to it from a third party who had
a lawful right to disclose such information to it; or (v) was
independently developed by the Receiving Party without use of
the Confidential Information of the Furnishing Party. Any
exclusion from the definition of Confidential Information
contained in a Service Module will not apply to Personal
Information.
(d) Confidential Treatment of the Service Modules. The Service
Modules are confidential agreements between State Street and
the BGI Recipients. The Parties will not reproduce or show
copies of any Service Module to third parties without the
other Party's consent, except as may be permitted by Section
13.3 or Section 20.5, provided however, that BGI Recipients
may disclose the following portions of the Service Modules to
third party providers in connection with migrating the
Services to other service providers: descriptions of the
Services, Service Levels, and provisions regarding
Intellectual Property. BGI will seek confidential treatment of
the Service Modules in any BGI Recipient registration
statements, subject to BGI's or any BGI Recipient's sole
discretion as to how it will fulfill its legal obligations or
regulatory requirements.
13.2 Confidentiality Obligations.
(a) Generally. The Receiving Party will: (i) not disclose,
publish, release, transfer or otherwise make available the
Furnishing Party's Confidential Information in any form to, or
for the use or benefit of, any person or entity without the
Furnishing Party's consent; (ii) secure and protect the
Furnishing Party's Confidential Information from unauthorized
use or disclosure by using at least the same degree of care as
the Receiving Party employs to avoid authorized use of or
disclosure of its own Confidential Information, but in no
event less than reasonable care; and (iii) not duplicate any
material containing the Furnishing Party's Confidential
Information except in the direct performance of its
Master Services Agreement 37 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
obligations under a Service Module. Confidential Information
may not be used by the Receiving Party or any of its
Affiliates, officers, directors, agents, professional
advisors, approved subcontractors and employees, other than
for the purposes contemplated by this Agreement.
(b) State Street Duties. In addition to its other obligations with
respect to BGI Confidential Information, State Street will:
(i) [CONFIDENTIAL TREATMENT REQUESTED]
(ii) Provide access to BGI Confidential Information to its
employees only on a need to know basis and will not
provide such access to any employee who directly
services a business that competes now or in the
future with BGI Recipients or the Funds.
(iii) Train all State Street Personnel on special
restrictions applicable to BGI Confidential
Information hereunder (or under any Service Module).
(iv) [CONFIDENTIAL TREATMENT REQUESTED]
(v) Segregate and protect BGI Confidential Information,
by configuration of its information and processing
systems or by adopting other appropriate measures.
(vi) State Street will use its Commercially Reasonable
Efforts to strengthen the provisions in its
agreements with each of its Subcontractors, which may
include, where possible, attempting to make such
provisions comparable to the confidentiality
obligations of State Street under this Agreement.
State Street will provide periodic updates to the BGI
Recipients indicating State Street's progress in
obtaining such agreements.
(c) Notice of Unauthorized Acts. The Receiving Party will:
(i) notify the Furnishing Party promptly upon its
becoming aware of any unauthorized possession, use,
or knowledge of the Furnishing Party's Confidential
Information by any person;
(ii) promptly furnish to the Furnishing Party full details
that the Receiving Party has or may obtain regarding
such unauthorized access and use reasonable efforts
to assist the Furnishing Party in investigating or
preventing the reoccurrence of any such access;
(iii) cooperate with the Furnishing Party in any litigation
and investigation against third parties deemed
reasonably necessary by such Party to protect its
proprietary rights; and
(iv) promptly take all reasonable actions necessary to
prevent a reoccurrence of any such authorized access.
(d) Special Code of Conduct.
Master Services Agreement 38 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
(i) In performing the Services, State Street will direct
all Covered Persons to comply with the Special Code
of Conduct set forth in Exhibit L, without limiting
State Street's obligation under Section 4.1(c). The
Special Code of Conduct will apply to all Covered
Persons, and persons who were formerly Covered
Persons but whose duties have changed such that they
are no longer Covered Persons.
(A) Within thirty (30) days after the Effective
Date, State Street will issue a
nondisclosure and confidentiality agreement
between BGI and the following Covered
Persons that minimally requires such State
Street Personnel to comply with State
Street's confidentiality and non-disclosure
duties hereunder: (I) Covered Persons in the
Service Center or iGroup; (II) such other
Covered Persons who supervise the Service
Center or iGroup; and (III) Covered Persons
who support the Institutional Services
(other than personnel who provide shared
services). Within thirty (30) days
thereafter, State Street will use diligent
efforts to collect such agreements in fully
executed and binding form, provided that
within ninety (90) days following the
Effective Date, State Street will have
collected all such agreements in fully
executed and binding form. During such
ninety (90) day period, State Street will
provide BGI with monthly updates indicating
the status of all such agreements.
(B) State Street will develop a training program
with respect to this Special Code of
Conduct, subject to review and reasonable
approval by the BGI Recipients.
(C) No less frequently than annually, each
individual Covered Person will be required
to certify that such individual has read and
complied with the Special Code of Conduct.
(D) The Special Code of Conduct will require
that State Street Personnel maintain the
confidentiality of BGI Confidential
Information accessed or otherwise made known
to the Service Center or iGroup and the
Funds for the duration of each individual's
employment with State Street, even if such
employee has left the Service Center or
iGroup to work in another area of State
Street's organization, or no longer services
the Service Center or iGroup in a support
function.
(ii) All Covered Persons will be required to comply with
the Special Code of Conduct.
(iii) Each Covered Person will receive the training program
developed by State Street with respect to the Special
Code of Conduct.
(iv) State Street will provide such certifications as are
required under the Service Module for Service Center
and the Service Module for iGroup with respect to the
compliance with the Special Code of Conduct. Failure
to provide any such certifications will be deemed a
failure of a Key Performance Indicator and handled in
accordance with Exhibit B.
(e) [CONFIDENTIAL TREATMENT REQUESTED]
Master Services Agreement 39 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
13.3 Permitted or Required Disclosures.
(a) The Receiving Party may disclose relevant aspects of the
Furnishing Party's Confidential Information to its Affiliates,
officers, directors, agents, professional advisors, approved
subcontractors and employees and other third parties, to the
extent that such disclosure is not restricted under a Service
Module or any governmental approvals and only to the extent
that such disclosure is reasonably necessary for: (i) the
performance of its duties and obligations; (ii) the exercise
of its rights, under the Service Modules or the License
Agreements; or (iii) compliance with relevant reasonable
policies and practices of its internal audit, risk management,
and legal oversight functions.
(b) The Receiving Party will take all reasonable measures to
ensure that the Furnishing Party's Confidential Information is
not disclosed or duplicated in contravention of the provisions
of this Agreement or the Service Modules by such officers,
directors, agents, professional advisors, subcontractors and
employees.
(c) The Parties' respective obligations in this Article 13 will
not restrict any disclosure required pursuant to any Law;
provided, however, that:
(i) where legally permitted to do so, the Receiving Party
will give reasonable and prompt advance notice of
such disclosure requirement to the Furnishing Party
and give the Furnishing Party reasonable opportunity
to object to and contest such disclosure, to the
extent legally permissible; and
(ii) the Receiving Party will use reasonable efforts to
secure confidential treatment for any such
information that is required to be disclosed.
13.4 Return or Destruction.
(a) As requested by the Furnishing Party during the Agreement
Term, the Receiving Party will return or provide the
Furnishing Party a copy of any designated Confidential
Information of the Furnishing Party.
(b) The Receiving Party will return, or at the Furnishing Party's
option, destroy all copies of materials containing the
Furnishing Party's Confidential Information upon the Receiving
Party's cessation of work, completion of its obligations
associated with such information under the Service Modules or
upon any earlier termination of all Service Modules for any
reason whatsoever, except to the extent:
(i) that this Agreement, a Service Module or the License
Agreements provide for the Receiving Party to
continue to use or retain items that constitute or
contain the Furnishing Party's Confidential
Information after the date of expiration or
termination; or
(ii) otherwise required to comply with Laws or defend or
pursue claims arising under this Agreement or a
Service Module.
In addition, the Receiving Party will destroy all notes,
memoranda, compilations, derivative works, data files or other
materials prepared by or on behalf of the Receiving Party that
contain or otherwise reflect or refer to Confidential
Information of the Furnishing Party to the extent reasonably
practicable.
Master Services Agreement 40 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
(c) At the Furnishing Party's request, the Receiving Party will
certify in writing that it has returned or destroyed all
copies of the Furnishing Party's Confidential Information in
the possession or control of the Receiving Party or any of its
Affiliates, officers, directors, agents, professional
advisors, approved subcontractors and employees.
(d) The Receiving Party will dispose of any "consumer report
information," as such term is defined in Regulation S-P.
13.5 Duration of Confidentiality Obligations. The Receiving Party's
obligations under this Article apply to Confidential Information of the
Furnishing Party disclosed to the Receiving Party before or after the
Effective Date and will continue during the Agreement Term and survive
the expiration or termination of the Agreement as follows:
(a) as to any portion of the Furnishing Party's Confidential
Information that constitutes a trade secret under applicable
law, the obligations will continue for as long as the
Furnishing Party continues to treat such information as a
trade secret; and
(b) as to all other Confidential Information of the Furnishing
Party, the obligations will survive for two (2) years after
the Receiving Party's fulfillment of its obligations under
Section 13.4 with respect to the Confidential Information in
question.
14. PROPRIETARY RIGHTS
14.1 Generally. This Article 14 and the License Agreements set forth the
Parties' rights with respect to certain Intellectual Property created
or otherwise made available in connection with the Service Modules. As
between the Parties, the rights apply as set forth in this Article 14
whether State Street Personnel solely or working jointly with any BGI
Recipient or others to perform the work in question.
14.2 BGI Proprietary Information. All proprietary interest, claim or rights
in client and Customer lists and all other data of any BGI Recipient
and its clients and Customers ("BGI Proprietary Information") will be
and remain such BGI Recipient's sole property. State Street may use BGI
Proprietary Information only to provide the Services and not for any
other purpose. Upon termination or expiration of each Service Module,
all BGI Proprietary Information related to such Service Module will be
returned to the BGI Recipient that provided such BGI Proprietary
Information, except as otherwise provided in a Service Module or to the
extent necessary for State Street to perform continuing obligations.
State Street will then destroy its own copies, and certify to the
completion of such destruction in writing upon request from such BGI
Recipient.
15. REPRESENTATIONS AND WARRANTIES
15.1 By State Street. State Street makes the following representations,
warranties and covenants to each BGI Recipient:
(a) Adequate Resources, Skill and Experience. State Street
warrants and covenants that it will use adequate numbers of
qualified State Street Personnel with suitable training,
education, experience and skill to perform the Services in
accordance with the Standard of Care. State Street represents
that it is skilled and experienced in providing services
similar to the Services for customers other than the BGI
Recipients.
Master Services Agreement 41 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
(b) Software Ownership. It is fully authorized to grant to the BGI
Recipients, such rights, title, interest and ownership (or
license rights to use, as applicable) as are granted pursuant
to the Service Modules.
(c) Currency. The Services, including any Work Product provided by
State Street hereunder, are and will: (i) be capable of
supporting all currencies required to provide the Services;
and (ii) not be adversely affected or manifest any errors by
virtue of variations in currency or pricing structures.
(d) Equal Opportunity Employer. State Street is now an equal
opportunity employer complying with all applicable Laws
relating to equal opportunity employment, and will maintain in
effect, and use reasonable efforts to adhere to a corporate
policy intended to maintain such compliance.
(e) No Debarment. Neither State Street (nor any of State Street
Personnel to State Street's knowledge):
(i) has been debarred by a governmental authority;
(ii) has currently or has had in the past, a debarment
proceeding initiated against them by a governmental
authority; or
(iii) will use, in any capacity, in connection with the
activities to be performed under the Service Modules,
any person or entity who, to State Street's knowledge
has been debarred or against whom a debarment
proceeding has been initiated by any governmental
authority.
If State Street learns that a person or entity performing on
its behalf under any Service Module has been debarred by any
governmental authority, or has become the subject of debarment
proceedings by any governmental authority, State Street will
promptly so notify the applicable BGI Recipients and will
prohibit such person or entity from performing on State
Street's behalf under the Service Modules, unless otherwise
consented to in writing by such BGI Recipients.
15.2 Mutual Representations and Warranties. Each Party represents, warrants
and covenants to the other that:
(a) Power and Authority. It has the requisite corporate power and
authority to enter into, and to carry out the transactions
contemplated by the Service Modules to which it is a
signatory;
(b) No Inducements. Such Party has not violated applicable Laws or
regulations or policies in connection with securing the
Service Modules.
(c) Duly Authorized and No Material Default. The execution,
delivery and performance of each Service Module to which it is
a signatory and the consummation of the transactions
contemplated by such Service Module: (i) have been duly
authorized by the requisite corporate action on the part of
such Party and will not constitute a violation of any
judgment, order or decree; and (ii) will not constitute a
material default under any material contract by which it or
any of its Affiliates or any of their respective material
Master Services Agreement 42 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
assets are bound, or an event that would, with notice or lapse
of time or both, constitute such a default;
(d) Adequate Rights.
(i) It has obtained and will retain, at its sole expense,
any and all necessary rights, licenses, consents and
approvals from governmental authorities and third
parties to perform its obligations under any Service
Module to which it is a signatory and to enter into
any Service Module, including the right to grant the
other Party any rights granted under a Service
Module; and
(ii) It is the owner of or has the right to use and grant
access to any Intellectual Property made available to
the other Party under any Service Modules to which it
is a signatory, including in the case of State
Street, any Work Product, Independent Work, or State
Street Technology that it makes available;
(e) No Pending Proceedings; Litigation. There is no claim,
litigation, proceeding, arbitration, investigation or material
controversy pending or, to the knowledge of such Party,
threatened that challenges or may have a material adverse
affect on any Service Modules to which it is a signatory or
the transactions contemplated therein; and
(f) Foreign Corrupt Practices Act. Neither it nor any of its
Affiliates or agents, nor any officer or employee of it, or
its Affiliates or agents has taken or will take any action or
make any payment in violation of, or which may cause it, its
Affiliates or agents to be in violation of, the Foreign
Corrupt Practices Act of 1977, as amended, or any comparable
Laws in any country from or to which Service is provided. Such
Party further represents that no person employed by it or any
of its Affiliates in connection with its obligations under any
Service Modules to which it is a signatory is an official of
the government of any country or of any agency thereof, and
that no part of any monies or consideration paid hereunder
will accrue for the benefit of any such official.
16. INSURANCE AND RISK OF LOSS
16.1 Required Insurance Coverages. State Street will, throughout the
Agreement Term maintain in full force and effect from a third party
that is rated at least "A-" in Best's Insurance Guide, or is otherwise
acceptable to a BGI Recipient under a particular Service Module, at a
minimum the types and amounts of insurance coverage identified below
for its operations worldwide. For the avoidance of doubt, any policy
amounts or limitations will not in any event be construed as
limitations on State Street's liability under any Service Module.
(a) Commercial general liability insuring against bodily injury,
property damage, contractors' completed operations and
contractual liability (covering State Street's indemnification
obligations contained herein) with a combined single limit of
not less than U.S. $10,000,000 per claim.
(b) Professional liability and errors and omissions insurance in
an amount not less than U.S. $25,000,000 per claim.
(c) Umbrella coverage (including commercial general liability
coverage) of not less than U.S. $100,000,000 over the
coverages shown above.
Master Services Agreement 43 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
16.2 Self-Insure. Notwithstanding anything to the contrary herein, State
Street may self insure with respect to the insurance required to be
maintained under Section 16.1 provided State Street has net assets of
$135 million. Within ten (10) days from the Effective Date, State
Street will provide to the BGI Recipients a then-current listing of its
insurance coverage relevant to this Agreement and the Service Modules,
and will, upon request therefor, provide an updated listing of such
coverage.
16.3 Jurisdictions. Each Party will ensure that the insurance required of it
permits payment in each of the jurisdictions in which its insured is
permitted to do business.
17. INDEMNIFICATION
17.1 By State Street. State Street will indemnify, defend and hold harmless
the applicable BGI Recipient, its Affiliates, and their respective
officers, directors, employees, agents and permitted successors and
assigns from any and all damages, fines, penalties, deficiencies,
losses, liabilities (including judgments and amounts reasonably paid in
settlement) and expenses (including interest, court costs, reasonable
fees and expenses of attorneys, accountants and other experts or other
reasonable fees and expenses of litigation or other proceedings or of
any claim, default or assessment) ("Losses") arising from or in
connection with any third party claim or threatened third party claim
to the extent that such Losses are based on or arising out of any of
the following:
(a) breach by State Street or any State Street Personnel of any of
its data protection, information security or confidentiality
obligations hereunder or under a Service Module to which such
BGI Recipient is a signatory;
(b) any claim of infringement or misappropriation of any
Intellectual Property Right alleged to have occurred because
of systems or other Intellectual Property provided by or on
behalf of State Street or based upon the performance of the
Services (collectively, the "State Street Infringement
Items"), except to the extent that such infringement or
misappropriation relates to or results from:
(i) changes made by any BGI Recipient or by a third party
at the direction of a BGI Recipient to the State
Street Infringement Items;
(ii) changes to the State Street Infringement Items
recommended by State Street and not made due to a
request from any BGI Recipient, provided that State
Street has notified such BGI Recipient that failure
to implement such recommendation would result in
infringement within a reasonable amount of time for
such BGI Recipient to so implement following such
notification;
(iii) any BGI Recipient's combination of the State Street
Infringement Items with products or services not
provided or approved in writing by State Street,
except to the extent such combination arises out of
any BGI Recipient's use of the State Street
Infringement Items in a manner consistent with the
applicable business requirements documentation;
(iv) designs or specifications that in themselves infringe
and that are provided by or at the direction of any
BGI Recipient (except in the event of a knowing
infringement by State Street); or
Master Services Agreement 44 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
(v) use by a BGI Recipient of any of the State Street
Infringement Items in a manner that is not consistent
with the applicable business requirements
documentation or otherwise not permitted under this
Agreement or any Service Module.
(c) any claim or action by, on behalf of, or related to, any
prospective, then-current or former employees of State Street,
arising from or in connection with a Service Module to which a
BGI Recipient is a signatory, including:
(i) any claim arising under occupational health and
safety, worker's compensation, ERISA or other
applicable Law;
(ii) any claim arising from the interview or hiring
practices, actions or omissions of employees of State
Street;
(iii) any claim relating to any violation by employees of
State Street, or its respective officers, directors,
employees, representatives or agents, of any Law or
any common law protecting persons or members of
protected classes or categories, such laws or
regulations prohibiting discrimination or harassment
on the basis of a protected characteristic; and
(iv) any claim based on a theory that such BGI Recipient
is an employer or joint employer of any such
prospective, then-current or former employees of
State Street.
(d) [CONFIDENTIAL TREATMENT REQUESTED]
(e) [CONFIDENTIAL TREATMENT REQUESTED]
(f) claims by clients of State Street relating to services,
products or systems provided by State Street or a
Subcontractor to such client(s) in a shared or leveraged
environment; or
(g) any claim initiated by an Affiliate or potential or actual
Subcontractor of State Street asserting rights in connection
with a Service Module to which such BGI Recipient is a
signatory.
17.2 By BGI Recipients. Each BGI Recipient will indemnify, defend and hold
harmless State Street, its Affiliates and their respective officers,
directors, employees, agents and permitted successors and assigns from
any and all Losses arising from or in connection with any third party
claim based or threatened third party claim to the extent that such
Losses are based on or arising out of any of the following:
(a) breach by such BGI Recipient of any of its confidentiality
obligations hereunder or under a Service Module to which such
BGI Recipient is a signatory;
(b) any claim or action by, on behalf of, or related to, any
prospective, then-current or former employees of such BGI
Recipient arising from or in connection with a Service Module
to which such BGI Recipient is a signatory, including:
(i) any claim arising under occupational health and
safety, worker's compensation, ERISA or other
applicable Law;
Master Services Agreement 45 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
(ii) any claim arising from the interview or hiring
practices, actions or omissions of such BGI
Recipient;
(iii) any claim relating to any violation by such BGI
Recipient, or its officers, directors, employees,
representatives or agents, of any Law or any common
law protecting persons or members of protected
classes or categories, such laws or regulations
prohibiting discrimination or harassment on the basis
of a protected characteristic; and
(iv) any claim based on a theory that State Street is an
employer or joint employer of any such prospective,
then-current or former employee of such BGI
Recipient.
17.3 Mutual. Each Party will indemnify, defend and hold harmless the other
Party and their respective officers, directors, employees, agents,
successors and assigns from any and all Losses arising from or in
connection with any of the following, including Losses arising from or
in connection with any third party claim or threatened third party
claim:
(a) the death or bodily injury of an agent, employee, customer,
business invitee or business visitor or other person caused by
the tortious or criminal conduct of the other Party; or
(b) the damage, loss or destruction of real or tangible personal
property caused by the tortious or criminal conduct of the
other Party.
17.4 Infringement Remedy.
(a) If any item or process used by State Street to provide the
Services and made available to the BGI Recipients becomes, or
in its reasonable opinion is likely to become, the subject of
an infringement or misappropriation claim or proceeding, State
Street will use Commercially Reasonable Efforts to, in its
sole discretion, take the following actions at no additional
charge to such BGI Recipient as soon as reasonably
practicable:
(i) secure the right to continue using the item or
process; or
(ii) replace or modify the item or process to make it
non-infringing, provided that the replacement or
modification will not degrade performance or quality
in any material respect,
if neither (i) nor (ii) is available to State Street on
commercially reasonable terms, remove the item or process from
the Services and equitably reduce State Street's charges to
reflect such removal, provided that no such removal will
diminish the scope of State Street's obligation to perform the
Services hereunder or under a Service Module.
(b) State Street's obligations in this Section and its related
indemnification obligations under Section 17.1(b) shall be the
affected BGI Recipient's sole rights and remedies in
connection with infringement claims described herein. For the
purposes of clarification, nothing in this Section 17.4 will
limit a BGI Recipient's ability to seek remedies for State
Street's failure to provide the Services under this Agreement
or the Service Modules.
Master Services Agreement 46 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
17.5 Indemnification Procedures.
(a) Any Third-Party Claim. If any third party claim is commenced
against a Party entitled to indemnification under this Article
(the "Indemnified Party"), notice thereof will be given to the
Party obligated to indemnify such claim (the "Indemnifying
Party") as promptly as practicable. No Indemnified Party shall
settle or compromise any third party claim which may be the
subject of an indemnification claim against the Indemnifying
Party, whereby such claim involves the payment of money,
without the prior written consent of the Indemnifying Party,
except as set forth herein. Failure to do so shall relieve the
Indemnifying Party of any obligation with respect to such
third party claim.
(i) If, after such notice, the Indemnifying Party
acknowledges and agrees that the terms of the
applicable Service Modules apply to such claim, then
such Party may, in a notice promptly delivered to the
Indemnified Party, but in no event less than ten (10)
days prior to the date on which a response to such
claim is due, immediately take control of the defense
and investigation of such claim and to employ and
engage attorneys reasonably acceptable to the
Indemnified Party to handle and defend the same, at
the Indemnifying Party's sole cost and expense,
subject to the following:
(A) no settlement of a claim that involves a
remedy other than the payment of money by
the Indemnifying Party (which includes as an
unconditional term thereof the giving by
each claimant or plaintiff to such
Indemnified Party of a release from all
liability with respect to such claim) will
be entered into without the prior written
consent of the Indemnified Party, which will
not be unreasonably withheld;
(B) after notice by the Indemnifying Party to
the Indemnified Party of its election to
assume full control of the defense of any
such claim, the Indemnifying Party will not
be liable to the Indemnified Party for any
legal expenses incurred thereafter by such
Indemnified Party in connection with the
defense of that claim; and
(C) the Indemnified Party will cooperate, at the
cost of the Indemnifying Party, in all
reasonable respects with the Indemnifying
Party and its attorneys in the
investigation, trial and defense of such
claim and any appeal arising therefrom;
provided, however, that the Indemnified
Party may, at its own cost and expense
(except as otherwise would be the
responsibility of the Indemnifying Party
hereunder), participate, through its
attorneys or otherwise, in such
investigation, trial and defense of such
claim and any appeal arising therefrom.
(ii) If the Indemnifying Party does not assume full
control over the defense of a claim as provided in
this Section, the Indemnified Party may retain
control of the defense and investigation of such
claim and employ and engage attorneys reasonably
acceptable to the Indemnifying Party to handle and
defend the same, at the Indemnifying Party's sole
cost and expense, provided that the Indemnifying
Party may participate in such defense at its sole
cost and expense. If the Indemnified Party retains
control of the defense of any such claim, any
settlement shall be subject to: (A) a waiver of the
Indemnified Party's rights to
Master Services Agreement 47 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
further indemnification; and (B) prior written
approval of the Indemnifying Party, which will not be
unreasonably withheld.
(b) Governmental Authority Claims.
(i) Notwithstanding Section 17.5(a), if a claim subject
to indemnification is brought against the Indemnified
Party by any governmental authority, then the
Indemnified Party may, in a notice promptly delivered
to the Indemnifying Party, but in no event less than
ten (10) days prior to the date on which a response
to such claim is due, retain control of the defense
and investigation of such claim and employ and engage
attorneys reasonably acceptable to the Indemnifying
Party to handle and defend the same, at the
Indemnifying Party's sole cost and expense; provided,
however, that the Indemnifying Party may participate
in such defense, at its sole cost and expense. No
settlement of a claim that involves a remedy other
than the payment of money by the Indemnifying Party
will be entered into without the prior written
consent of the Indemnified Party, which will not be
unreasonably withheld.
(ii) If the Indemnified Party does not assume full control
over the defense of a governmental claim subject to
such defense as provided in this Section, the
Indemnifying Party will be entitled to assume control
of the defense, in which case the relevant provisions
of Section 17.5(a) will apply.
17.6 Enforcement. If the Indemnified Party is required to bring a claim
against the Indemnifying Party to enforce the Indemnified Party's
rights under this Section 17, and the Indemnified Party prevails in
such claim, then the Indemnifying Party will indemnify and reimburse
the Indemnified Party for and from any costs and expenses (including
reasonable legal fees) incurred in connection with the enforcement of
this Article.
17.7 Subrogation. If an Indemnifying Party will be obligated to indemnify an
Indemnified Party, the Indemnifying Party will, upon fulfillment of its
obligations with respect to indemnification, including payment in full
of all amounts due pursuant to its indemnification obligations, be
subrogated to the rights of the Indemnified Party with respect to the
claims to which such indemnification relates.
18. LIABILITY; LIABILITY LIMITATIONS
18.1 Generally. Generally, State Street will be liable for Damages to the
extent of its failure to meet its Standard of Care, subject to the
exceptions set forth in this Section 18, including:
(a) [CONFIDENTIAL TREATMENT REQUESTED]
(b) [CONFIDENTIAL TREATMENT REQUESTED]
(c) [CONFIDENTIAL TREATMENT REQUESTED]
(d) [CONFIDENTIAL TREATMENT REQUESTED]
(e) [CONFIDENTIAL TREATMENT REQUESTED]
Master Services Agreement 48 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
(f) [CONFIDENTIAL TREATMENT REQUESTED]
18.2 State Street Liability Limitations. Subject to State Street's
obligations under this Agreement to mitigate Damages or Losses, State
Street will not be liable, will not be in breach of this Agreement or
any Service Module and will not be required to indemnify any BGI
Recipient in respect of, any Damages or Losses suffered or incurred by
any such BGI Recipient to the extent that such Damages or Losses arise
as a result of:
(a) any insolvency or financial default of any Pass Through
Foreign Sub-Custodian, sub-custodian located within or outside
of the United States (exclusive of the Pass Through Foreign
Sub-Custodians or State Street Affiliates), or Eligible
Securities Depository, Foreign Depository, Depository located
in the United States, provided that (i) State Street's
selection of such Pass Through Foreign Sub-Custodian,
sub-custodian located within or outside of the United States
(exclusive of the Pass Through Foreign Sub-Custodians or State
Street Affiliates), or Eligible Securities Depository, Foreign
Depository, Depository located in the United States was made
in accordance with the Standard of Care, and (ii) State Street
enforces such rights as it may have against any such Pass
Through Foreign Sub-Custodians, sub-custodian located within
or outside of the United States (exclusive of the Pass Through
Foreign Sub-Custodians or State Street Affiliates), or
Eligible Securities Depository, Foreign Depository, Depository
located in the United States.
(b) any acts or omissions of any Pass Through Foreign
Sub-Custodian, provided that (i) State Street's selection of
such Pass Through Foreign Sub-Custodian was made in accordance
with the Standard of Care, (ii) State Street will be liable to
the BGI Recipients to the same extent as such Pass Through
Foreign Sub-Custodian is liable to State Street, and (iii)
State Street enforces such rights as it may have against any
such Pass Through Foreign Sub-Custodians.
(c) any acts or omissions of an Eligible Securities Depository,
Foreign Depository, Depository located in the United States,
provided that: (i) State Street's selection of such security
depository was made in accordance with the Standard of Care
and the Service Modules; (ii) State Street will be liable to
the BGI Recipients to the same extent as such securities
depository is liable to State Street; and (iii) State Street
enforces such rights as it may have against any such
securities depository.
(d) any insolvency or financial default or act or omission of a
Subcontractor chosen by or at the direction of such BGI
Recipient (including for avoidance of doubt, any Eligible
Securities Depository, Foreign Depository, Depository or
sub-custodian required by BGI), provided that: (i) a BGI
Recipient's exercise of its right to reject any Subcontractor
hereunder will not be considered a choice or direction of such
BGI Recipient; and (ii) State Street enforces such rights as
it may have against such Subcontractor at the expense of, and
as directed by, such BGI Recipient.
(e) any obligations now or hereafter imposed directly on the BGI
Recipients or State Street solely as custodian of the BGI
Recipient's account by the tax law of the United States or of
any state or political subdivision thereof.
(f) acts or omissions of a third party which occurred prior to the
applicable Service Module Effective Date.
Master Services Agreement 49 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
(g) with respect to any Service Modules that are outside the scope
of services that were previously provided under the Legacy
Service Agreements, any acts or omissions of a BGI Recipient
that occurred prior to the applicable Service Module Effective
Date.
(h) State Street's reliance on Proper Instructions, except to the
extent such Damages or Losses result from State Street's
failure to meet its Standard of Care.
(i) except to the extent any Damages or Losses result from State
Street's failure to meet its Standard of Care, and subject to
Sections 3.4 and 5:
(i) any act of, or a failure to perform or a breach by,
any BGI Recipient of its obligations under this
Agreement or any Service Module;
(ii) any revisions to calculation methods made by a BGI
Recipient unless such revisions are communicated in
writing to State Street;
(iii) any acts or omissions of Authorized Data Sources
(which may include the provision by such Authorized
Data Sources of inaccurate, incomplete or corrupt
data on which State Street has relied in providing
the relevant Services);
(iv) any act or omission by a Third-Party Provider;
(v) erroneous information provided by a Third Party
Market Utility Provider, except to the extent State
Street's fails to review and validate such data
pursuant to Section 5.2(b);
(vi) State Street relying in good faith upon the accuracy
and completeness of any information provided to it by
any BGI Recipient or Third-Party Provider, except to
the extent that State Street has modified or failed
to correct such information where it had an express
obligation to do so pursuant to the terms of any
Service Module and to the extent that such
modification or failure to correct has increased the
amount of the Damages or otherwise resulted in
Damages; or
(vii) unavailability of BGI Technology, except to the
extent that State Street fails to comply with
Sections 3.4, and 5.
(viii) any untimely exercise of any tender, exchange or
other right or power in connection with foreign
securities or other property of the BGI Recipient's
account at any time held by it to the extent caused
by the following: (A) State Street or the respective
Eligible Foreign Custodian is not in actual
possession of such foreign securities or property;
and (B) State Street does not receive Proper
Instructions with regard to the exercise of any such
right or power within the timeframes set forth in the
applicable Service Levels.
18.3 Liability Limitations
(a) Generally.
(i) Except as set forth in Section 18.3(b), in no event
will any Party to a Service Module, its officers,
directors, employees, Affiliates, subsidiaries,
suppliers or subcontractors, be liable for
consequential, indirect, special or incidental
Master Services Agreement 50 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
damages thereunder, whether in contract, in tort
(including breach of warranty, negligence and strict
liability in tort), or otherwise, even if such Party
has been advised of the possibility of such damages
in advance.
(ii) None of the limitations in this Section 18.3(a) will
apply to direct damages suffered by either Party.
(iii) [CONFIDENTIAL TREATMENT REQUESTED]
(b) [CONFIDENTIAL TREATMENT REQUESTED]
19. DISPUTE RESOLUTION
19.1 Informal Dispute Resolution. Any dispute arising out of or relating to
the Service Modules, will be referred to the Executive Committee to
attempt to resolve the dispute. The Executive Committee will meet
within five (5) Business Days of referral to attempt to resolve the
dispute. If the Executive Committee cannot resolve the dispute within
ten (10) days after their first meeting, then the dispute will be
escalated to authorized representatives of the Parties' senior
management who are empowered to resolve the dispute. Such
representatives will meet within ten (10) days after the request. If
such representatives cannot resolve the dispute within twenty (20) days
after their first meeting, then the Parties will submit the dispute to
mediation as set forth in Section 19.1.
19.2 Mediation. Except as provided herein, no civil action with respect to
any dispute, claim or controversy arising out of or relating to the
Service Modules may be commenced until the matter has been submitted to
JAMS Alternative Dispute Resolution Inc. ("JAMS") for mediation. Either
Party may commence mediation by providing to JAMS and the other Party a
written request for mediation, setting forth the subject of the dispute
and the relief requested. The Parties will cooperate with JAMS and with
one another in selecting a mediator from JAMS panel of neutrals, and in
scheduling the mediation proceedings. The Parties covenant that they
will participate in the mediation in good faith, and that they will
share equally in its costs. Either Party may seek equitable relief as
described in Section 19.3 prior to the mediation to preserve the status
quo pending the completion of that process. Except for such an action
to obtain equitable relief, neither Party may commence a civil action
with respect to the matters submitted to mediation until after the
completion of the initial mediation session, or forty-five (45) days
after the date of filing the written request for mediation, whichever
occurs first. Mediation may continue after the commencement of a civil
action, if the Parties so desire. The provisions of this Section may be
enforced by any court of competent jurisdiction, and the Party seeking
enforcement will be entitled to an award of all costs, fees and
expenses, including reasonable attorneys' fees, to be paid by the Party
against whom enforcement is ordered. Unless the Parties otherwise
agree: (a) the mediation will take place in San Francisco, California;
and (b) the Parties will in good faith select a single mediator from
the JAMS panel of neutrals within ten (10) days after the dispute was
submitted to mediation. The Parties will consider the location of the
mediation in making such selection. Notwithstanding the foregoing, the
Parties will also have the right to pursue their other rights and
remedies at Law or in equity following such mediation. All negotiations
and proceedings pursuant to Sections 19.1 and 19.1 are confidential and
will be treated as compromise and settlement negotiations for purposes
of applicable rules of evidence and any additional confidentiality
protections provided by applicable Law. Notwithstanding the foregoing,
evidence that is otherwise admissible or discoverable will not be
rendered inadmissible or non-discoverable as a result of its use in any
informal dispute resolution or mediation.
Master Services Agreement 51 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
19.3 Other Remedies. The initiation of the dispute resolution process as
described above will not prevent any Party from exercising any of its
other rights or remedies hereunder including the right to terminate the
Service Modules in accordance with Article 7 or seek injunctive relief
as described in Section 19.3.
19.4 Equitable Remedies. Each Party acknowledges and agrees that a breach of
any of its obligations under this Agreement or any Service Module or
License Agreement with respect to BGI Confidential Information, BGI
Proprietary Information, BGI Data, State Street Confidential
Information, or its infringement or misappropriation of any of the
other Party's Intellectual Property Rights may irreparably harm the
other Party in a way that could not be adequately compensated by money
damages. In such a circumstance, the aggrieved Party may proceed
directly to court. If a court of competent jurisdiction should find
that a Party has breached (or attempted or threatened to breach) any
such obligations, such Party agrees that without any additional
findings of irreparable injury or other conditions to injunctive
relief, it will not oppose the entry of an appropriate order compelling
its performance of such obligations and restraining it from any further
breaches (or attempted or threatened breaches) of such obligations.
19.5 Continuity of Services. In the event of a dispute between the Parties,
State Street will continue to so perform its obligations under the
Service Modules in good faith during the resolution of such dispute
unless and until such Service Modules are terminated in accordance with
the provisions hereof (or after the expiration of any applicable
Disengagement Assistance, if later).
20. MISCELLANEOUS
20.1 Force Majeure.
(a) Neither Party will be liable for failure to perform or delay
in performing its obligations to the extent such failure or
delay is caused by or resulting from fire, flood, earthquake,
elements of nature or acts of God, wars, riots, civil
disorders, rebellions or revolutions, acts of terrorism,
pandemics, nationalization, expropriation, currency
restrictions, political risk (including, but not limited to,
exchange control restrictions, confiscation, insurrection,
civil strife or armed hostilities) to the extent beyond such
Party's reasonable control, or other facts or circumstances
beyond such Party's reasonable control (a "Force Majeure
Event"); provided that:
(i) the non-performing Party (and such Party's
Subcontractors or Third-Party Providers, as
applicable) are without material fault in causing the
default or delay;
(ii) the default or delay could not have been prevented by
reasonable precautions and cannot reasonably be
circumvented by the non-performing Party through the
use of alternate sources, workarounds plans or other
means (including, with respect to State Street, the
implementation of any business continuity or disaster
recovery plan required to be maintained by it under
this Agreement or the applicable Service Module); and
(iii) the non-performing Party uses Commercially Reasonable
Efforts to minimize the impact of such default or
delay.
(b) Provided that State Street has exercised reasonable care and
diligence and complied with its obligations to implement its
disaster recovery and business continuity plan and
Master Services Agreement 52 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
reasonable work-arounds to mitigate the effect of a Force
Majeure Event, a Force Majeure Event will include:
(i) an Industry Event; and
(ii) any industry-wide strike, lockout or labor dispute
involving a Party's personnel or refusal of such
Party's employees to enter a facility that is the
subject of such a labor dispute, to the extent such
refusal is based upon a reasonable fear of harm.
(c) State Street will not be entitled to any additional payments
from any BGI Recipient for costs or expenses incurred by State
Street as a result of any Force Majeure Event.
(d) Notwithstanding the provisions of Section (iii)(a), the BGI
Recipients will have the termination right provided in Section
7.3(a)(ii) with respect to Force Majeure Events.
20.2 [CONFIDENTIAL TREATMENT REQUESTED]
20.3 Parties' Relationship. The Parties to the Service Modules are
independent parties. State Street, in furnishing the Services, is
acting as an independent contractor. State Street has the sole right
and obligation to supervise, manage, contract, direct, procure, perform
or cause to be performed, all work to be performed by State Street
Personnel under the Service Modules. At no time will any State Street
Personnel represent himself or herself as an employee of any BGI
Recipient or be considered an employee of any BGI Recipient. State
Street is not a joint venturer with, nor an employee, agent or partner
of any BGI Recipient and has no authority to represent or bind any BGI
Recipient as to any matters, except as expressly authorized in this
Agreement or any Service Module.
20.4 Assignment.
(a) By State Street. State Street acknowledges and agrees that the
Services are personal in nature. Without the prior written
consent of all affected BGI Recipients (which consent may be
withheld in any BGI Recipient's sole discretion), State Street
will not have the right to transfer or assign its rights or
obligations under the Service Modules for any reason
whatsoever, including by operation of Law.
(b) By BGI. Each BGI Recipient will have the right in its sole
discretion to transfer or assign its rights or obligations
under the Service Modules (in whole or in part), this
Agreement and any Participation Agreements, upon the provision
of prior written notice to State Street, to: (i) any Affiliate
of such BGI Recipient so long as the assignee remains an
Affiliate of a BGI Recipient; (ii) a purchaser of all or
substantially all of the capital stock or assets of a BGI
Recipient, provided that such purchaser or entity agrees in
writing to be bound by the applicable Service Modules; (iii) a
Affiliate of such BGI Recipient or to an entity with which a
BGI Recipient consolidates or merges; or (iv) other members of
the BGI group. In such circumstances each such BGI Recipient
shall remain primarily liable for its obligations under this
Agreement, the Service Modules and the Participation
Agreements, as applicable.
20.5 Public Disclosures. Except as: (a) required by Law; (b) required to
discharge its obligations under this Agreement or any Service Module;
(c) permitted pursuant to Section 4.1(h)(v) herein; (d) permitted
pursuant to Section 13.1(d); or (e) otherwise
Master Services Agreement 53 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
permitted upon the written consent of the other Party, neither Party
will use or announce, release, disclose, or discuss with any third
parties, information regarding any Service Module or the Services,
including the other Party's name or trademark in any media releases,
advertising or marketing materials, or disclose that the other is a
customer or provider, as applicable. Use of any trademarks or service
marks of any Party (or marks of related companies) by the other Party
will be prohibited, unless the Parties otherwise agree in a writing.
Any grants of publicity rights to State Street by a BGI Recipient
hereunder may not exceed twelve (12) months and may be renewed only
upon written approval of such BGI Recipient. Nothing in this Section
20.5 shall preclude a BGI Recipient or BGI from identifying State
Street as its service provider.
20.6 No Waiver. No failure, delay or omission by a Party to exercise any
right, remedy or power it has under any Service Module will impair or
be construed as a waiver of such right, remedy or power. A waiver by
any Party of any breach or covenant will not be construed to be a
waiver of any succeeding breach or any other covenant. All waivers will
be in writing and signed by an authorized representative of the waiving
Party.
20.7 Remedies Cumulative. Except as otherwise set forth herein (including
any limitations herein with respect to the remedies that may be
exercised by the BGI recipients in connection with Special Breaches):
(a) all remedies provided for herein (or in any Participation Agreement
or Service Module) will be cumulative and in addition to and not in
lieu of any other remedies available to either Party at law, in equity
or otherwise, and (b) the election by a Party of any remedy provided
for herein or otherwise available to such Party will not preclude such
Party from pursuing any other remedies available to such Party at law,
in equity, by contract or otherwise.
20.8 Covenant of Good Faith. Each Party, in its dealings with the other
Party under or in connection with the Service Modules, will act
reasonably and in good faith.
20.9 Notices. Any formal notice, consent, approval, acceptance, agreement or
other communication given pursuant to each Service Module will be in
writing and will be effective either when delivered personally to the
Party for whom intended, by facsimile (with confirmation of delivery),
or overnight delivery services (with confirmation of delivery) (unless
delivered after normal business hours, in which case it will be deemed
the next Business Day), addressed to such Parties that are signatories
to the applicable Service Module.
20.10 Governing Law/Proceedings.
(a) Governing Law. The Parties irrevocably agree that any legal
action, suit or proceeding arising out of the Service Modules
will be brought solely and exclusively in the State of New
York. This Agreement, the Service Modules and the License
Agreements will be construed and governed under and in
accordance with the Laws of that State, without regard to its
conflict of law provisions. All disputes arising out of this
Agreement, the Service Modules and the License Agreements will
be exclusively resolved in a court of competent jurisdiction
in the State of New York. Each Party expressly consents to the
jurisdiction of the U.S. District Court for the Southern
District of New York, and waives any objections or right as to
forum non conveniens, lack of personal jurisdiction or similar
grounds.
(b) Certain Laws Not Applicable. The Parties agree that, to the
extent permitted under applicable Law, the provisions of the
Uniform Computer Information Transactions Act, the Electronic
Signatures in Global and National Commerce Act, the Uniform
Electronic Transactions Act, the U.N. Convention on Contracts
for the International Sale of Goods,
Master Services Agreement 54 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
any federal or state statutory adoptions or equivalents of the
aforementioned Acts and Convention, and any other state or
federal laws related to electronic contracts or electronic
signatures will not apply to the Service Modules.
(c) Proceedings. State Street will, except to the extent legally
impermissible, advise all affected BGI Recipients of actual
legal or other proceedings relating to the Services of which
State Street becomes aware and that materially adversely
affect State Street's ability to meet its obligations under
this Agreement or any Service Module.
20.11 Third-Party Beneficiaries. There will be no third party beneficiaries
under this Agreement, any Participation Agreement or any Service
Module, except for Affiliates of the BGI Recipients that are receiving
the benefit of Services, or as required by Laws.
20.12 Waiver of Liens. State Street, for itself, its employees, permitted
Subcontractors and materialmen, hereby waives and relinquishes all
right to file, have or maintain a mechanic's or similar claim or lien
against any property of any BGI Recipient or any part thereof for or on
account of the work or any materials or Equipment furnished under the
Service Modules. State Street will not create or permit to be created
or remain, any lien, encumbrance or charges levied on account of any
mechanics' lien or claim, which may become a lien, encumbrance or
charge upon any of the property of any BGI Recipient or any part
thereof. For avoidance of doubt, the foregoing shall waive or preclude
the grant of any lien or security interest provided under any Service
Module with respect to custody services and related extensions of
credit.
20.13 Conflicts of Interest. State Street will maintain procedures and
controls to prevent conflicts of interest from adversely affecting the
BGI Recipients.
20.14 Rules of Construction.
(a) Entire Agreement. This Agreement, consisting of these general
terms and conditions and the attached Exhibit A through
Exhibit L, together with the Service Modules, License
Agreements and the iGroup Intellectual Property Agreement
constitute the sole and entire agreement among the Parties
with respect to the subject matter hereof. This Agreement
merges, integrates and supersedes all prior and
contemporaneous discussions, agreements and understandings
between the Parties, whether written or oral, with respect to
the matters contained herein.
(b) Use of Certain Words. Unless the context requires otherwise:
(i) "including" (and any of its derivative forms) means
including but not limited to; (ii) "may" means has the right,
but not the obligation to do something and "may not" means
does not have the right to do something; (iii) "will" and
"shall" are expressions of command, not merely expressions of
future intent or expectation; (iv) "written" or "in writing"
is used for emphasis in certain circumstances, but that will
not derogate from the general application of the notice
requirements set forth in Section 20.9 in those and other
circumstances; and (v) use of the singular imports the plural
and vice versa.
(c) Construction of Objectives. The objectives set forth in
Section 1.2 or elsewhere in this Agreement or a Service Module
provide a general introduction to this Agreement or the terms
set forth in a particular Section of this Agreement or Service
Module. It is not intended to alter the plain meaning of this
Agreement or a Service Module or to expand the scope of the
Parties' express obligations under it.
Master Services Agreement 55 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
(d) Interpretation. The terms and conditions of this Agreement are
the result of negotiations between the Parties.
(e) Headings and Article, Section and Exhibit References. The
Article and Section headings, Table of Contents, and Table of
Exhibits are for reference and convenience only and will not
be considered in the interpretation of this Agreement. Unless
otherwise indicated, Article or Section references are to
Articles or Sections of the document in which the reference is
contained. References to numbered Articles or Sections of this
Agreement also refer to and include all subsections of the
referenced Article or Section. References to Exhibits of this
Agreement also refer to and include all Attachments of the
referenced Exhibit.
(f) Order of Precedence.
(i) If a conflict occurs between this Agreement and any
Exhibit to this Agreement, the terms of this
Agreement will prevail to the extent necessary to
resolve the conflict.
(ii) If a conflict occurs between this Agreement and any
Service Module, the terms of the Service Module will
prevail with respect to the BGI Recipient or BGI
Recipients that are signatories thereto to the extent
necessary to resolve the conflict. Notwithstanding
the foregoing, more specific language in this
Agreement will not be preempted by less specific
language in a Service Module with respect to the same
matter, except to the extent that there is a direct
conflict.
(iii) If a conflict occurs between this Agreement and the
License Agreements, the terms of the License
Agreement will prevail to the extent necessary to
resolve the conflict.
(g) Survival. Any and all provisions of this Agreement which by
their nature or effect are required or intended to be
observed, kept, or performed after the expiration or
termination of this Agreement will survive the expiration or
any termination of this Agreement and remain binding upon and
for the Parties' benefit.
(h) Severability. If any provision of this Agreement is found by a
court of competent jurisdiction to be invalid, illegal, or
otherwise unenforceable, the same will not affect the other
terms or provisions hereof or the whole of this Agreement, but
such term or provision will be deemed modified to the extent
necessary in the court's opinion to render such term or
provision enforceable, and the Parties' rights and obligations
will be construed and enforced accordingly, preserving to the
fullest permissible extent the Parties' intent and agreements
set forth in this Agreement.
(i) Amendment. Any terms and conditions varying from any Service
Module on any order or written notification from either Party
will not be effective or binding on the other Party. Each
Service Module may be amended or modified solely in a writing
signed by an authorized representative of each Party.
(j) Counterparts. Each Service Module may be executed in any
number of counterparts, each of which will be deemed an
original, but all of which taken together will constitute one
single agreement between the Parties.
Master Services Agreement 56 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
[Signature Page Follows]
Master Services Agreement 57 BGI | State Street CONFIDENTIAL
Portions of this agreement have been omitted pursuant to a request for
confidential treatment request by BlackRock Institutional Trust Company, N.A.
and have been filed separately with the Securities Exchange Commission.
IN WITNESS WHEREOF, each of BGI and State Street have executed or caused this
Master Services Agreement to be executed as of the date set forth above by its
duly authorized representative.
BARCLAYS GLOBAL INVESTORS, N.A. acting STATE STREET BANK AND TRUST
in its capacity as investment advisor, trustee, COMPANY
custodian and/or agent with respect to the
Institutional Accounts listed on Exhibit A
--------------------------------- ---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director, Title: Vice Chairman
Chief Operating Officer
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Managing Director,
Global Head of Operations
Master Services Agreement 58 BGI | State Street CONFIDENTIAL