EXHIBIT 10.7
ADMINISTRATIVE AND INVESTMENT SERVICES AGREEMENT
between
State Street Bank and Trust Company
and the
American Bar Retirement Association
(As Amended and Restated)
November 9, 1998
TABLE OF CONTENTS
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Page
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ARTICLE I. DEFINITIONS.................................................. 2
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1.01 "ABA"........................................................ 2
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1.02 "ABA Members Collective Trust"............................... 2
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1.03 "ABA Members Pension Plan"................................... 2
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1.04 "ABA Members Plans".......................................... 2
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1.05 "ABA Members Retirement Plan"................................ 2
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1.06 "ABRA"....................................................... 2
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1.07 "ABRA Program Services Unit"................................. 2
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1.08 "Affiliate".................................................. 2
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1.09 "Aggregate Recordkeeping Plan"............................... 2
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1.10 "Annual Marketing Plan"...................................... 2
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1.11 "Board"...................................................... 2
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1.12 "Business Day"............................................... 3
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1.13 "Cause"...................................................... 3
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1.14 "Closed Option".............................................. 3
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1.15 "Code"....................................................... 3
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1.16 "Communications Consultant".................................. 3
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1.17 "Date of Termination"........................................ 3
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1.18 "Effective Date"............................................. 3
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1.19 "Employer"................................................... 3
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1.20 "Employer Plan".............................................. 3
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1.21 "Equitable".................................................. 3
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1.22 "ERISA"...................................................... 3
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1.23 "Extension Period"........................................... 3
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1.24 "Fund"....................................................... 4
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1.25 "Fund Declaration"........................................... 4
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1.26 "Indemnified Person"......................................... 4
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1.27 "Individual Recordkeeping Plan".............................. 4
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1.28 "Individually Designed Plan"................................. 4
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1.29 "Investment Advisor"......................................... 4
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1.30 "Investment Advisor Agreement"............................... 4
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1.31 "Investment Advisor Recommendation".......................... 4
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1.32 "Investment Advisor Removal Recommendation".................. 4
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1.33 "Investment Manager"......................................... 4
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1.34 "Investment Manager Agreement"............................... 4
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1.35 "Investment Option".......................................... 5
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1.36 "Investment Option Termination Notice"....................... 5
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1.37 "Investor"................................................... 5
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1.38 "Major Vendor"............................................... 5
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1.39 "Master Trust"............................................... 5
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1.40 "New Investment Option"...................................... 5
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1.41 "New Investment Option Notice"............................... 5
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1.42 "Non-Collective Trust Investment Option" or
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"NCT Investment Option"...................................... 5
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1.43 "Notice of Termination"...................................... 5
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1.44 "Participant"................................................ 6
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1.45 "Plan"....................................................... 6
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1.46 "Pooled Trust"............................................... 6
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1.47 "Principal Protected Product"................................ 6
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1.48 "Principal Protected Product Standards"...................... 6
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1.49 "Prior Plan Account"......................................... 6
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1.50 "Program".................................................... 6
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1.51 "Program Data and Records"................................... 7
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1.52 "Prospectus"................................................. 7
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1.53 "Qualified Bar Association".................................. 7
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1.54 "Qualified Employer"......................................... 7
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1.55 "Real Estate Option"......................................... 7
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1.56 "Renewal Date"............................................... 7
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1.57 "Self-Managed Option"........................................ 7
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1.58 "Service Standards".......................................... 7
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1.59 "State Street"............................................... 8
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1.60 "State Street Software"...................................... 8
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1.61 "Transfer Completion Date"................................... 8
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1.62 "Trustee".................................................... 8
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1.63 "Trust"...................................................... 8
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ARTICLE II. THE ABA MEMBERS COLLECTIVE TRUST AND INVESTMENT OPTIONS
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UNDER THE ABA MEMBERS COLLECTIVE TRUST..................... 8
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2.01 Establishment and Maintenance................................ 8
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2.02 Investment Advisors.......................................... 8
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2.03 Monitoring of Investment Advisors............................ 9
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2.04 Investment Advisor Recommendation............................ 9
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2.05 Investment Advisor Removal Recommendation by ABRA............ 9
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2.06 Investment Advisor Removal by State Street................... 10
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2.07 Amendments to or Mergers Under ABA Members Collective Trust.. 10
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2.08 Consideration of State Street Regarding Funds................ 11
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ARTICLE III. THE TRUSTS AND NCT INVESTMENT OPTIONS UNDER THE TRUSTS..... 11
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3.01 Trustee of Trusts............................................ 11
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3.02 NCT Investment Options....................................... 11
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3.03 Investment Managers.......................................... 12
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3.04 Required Investment Manager Termination...................... 12
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3.05 Optional Investment Manager Termination...................... 13
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3.06 Requirements................................................. 13
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3.07 Temporary Closure of an NCT Investment Option................ 14
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3.08 Establishment of NCT Investment Options...................... 14
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ARTICLE IV. ALL INVESTMENT OPTIONS..................................... 14
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4.01 New Investment Options....................................... 14
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4.02 Exclusive Management of Principal Protected Products......... 15
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4.03 Consultant................................................... 17
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4.04 Compliance with Laws......................................... 17
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4.05 Termination of Investment Options............................ 17
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4.06 General Considerations of State Street....................... 19
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ARTICLE V. MAINTENANCE OF TRUSTS AND PLANS............................. 19
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5.01 Necessary Amendments to Trusts and ABA Members Plans
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and Trusts................................................... 19
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5.02 Other Amendments to the Trusts and ABA Members Plans......... 19
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5.03 Notice to Employers of Amendments............................ 20
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5.04 Forms........................................................ 20
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5.05 Assistance to Employers...................................... 21
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5.06 Plan Interpretation.......................................... 21
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ARTICLE VI. SERVICES WITH RESPECT TO INVESTMENT OPTIONS................. 21
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6.01 Investment Records........................................... 21
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6.02 Contributions................................................ 21
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6.03 Transfers.................................................... 21
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6.04 Telephone Service............................................ 22
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6.05 Internet Services............................................ 22
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6.06 Assistance with Respect to Investment Options................ 22
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6.07 Recorded Information Concerning Investment Options........... 22
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6.08 Communication with Investors................................. 23
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ARTICLE VII. SERVICES WITH RESPECT TO TRUSTS AND PLANS.................. 23
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7.01 Plan Records................................................. 23
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7.02 Additional Records for Individual Recordkeeping Plans........ 23
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7.03 Additional Records For Plans Under ABA Members Pension Plan.. 23
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7.04 Distributions and Withdrawals................................ 24
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7.05 Tax Penalties on Distributions............................... 24
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7.06 State Street as Payor........................................ 25
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7.07 Account Statements........................................... 25
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7.08 Forms 5500, Annual Reports and Other Information............. 25
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7.09 Section 415 Monitoring....................................... 26
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7.10 Section 401(k) and 401(m) Testing............................ 26
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7.11 Written Communications to Employers and Investors............ 26
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7.12 Inquiries and Complaints..................................... 27
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7.13 Notices and Elections by Participants........................ 27
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7.14 Address for Communications to Participants................... 27
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7.15 Year 2000 Compliance......................................... 27
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7.16 Plan Administrator........................................... 28
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ARTICLE VIII. MARKETING SERVICES TO BE PROVIDED BY STATE STREET......... 29
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8.01 Marketing Requirements....................................... 29
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8.02 Marketing Reports............................................ 29
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8.03 State Bar and Local Endorsement Program...................... 29
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ARTICLE IX. MARKETING SUPPORT TO BE PROVIDED BY ABRA.................. 30
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9.01 Endorsement.................................................. 30
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9.02 Bar Association Meetings..................................... 30
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9.03 Workshops and Seminars....................................... 30
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9.04 Introductions................................................ 30
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9.05 Inclusion in ABA Mailings.................................... 30
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9.06 Access to ABA Research....................................... 30
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9.07 ABA Membership Lists......................................... 30
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9.08 ABA Disclaimer............................................... 31
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9.09 Payment of ABRA's Expenses................................... 31
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ARTICLE X. REPORTS TO ABRA.............................................. 31
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10.01 Investment Option Reports.................................... 31
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10.02 Fee Reports.................................................. 31
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10.03 Trust Participation Reports.................................. 31
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10.04 Transfer Reports............................................. 31
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10.05 Service Reports.............................................. 31
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10.06 Expense Reports.............................................. 32
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10.07 Annual Reports............................................... 32
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10.08 Timing of Reports............................................ 32
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ARTICLE XI. REVIEW OF COMMUNICATIONS MATERIAL
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AND COMMUNICATIONS BY ABRA.................................. 32
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11.01 Communications Consultant.................................... 32
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11.02 ABRA's Review of State Street Communication Material......... 32
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11.03 Communications by ABRA....................................... 33
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ARTICLE XII. ADDITIONAL AGREEMENTS AND COVENANTS OF STATE STREET........ 33
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12.01 ABRA Program Services Unit................................... 33
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12.02 Financial Condition and Organization......................... 33
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12.03 Insurance Certification...................................... 34
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12.04 Approval of Major Vendors.................................... 34
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12.05 Indemnification of ABRA by Major Vendors..................... 34
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12.06 Non-Competition.............................................. 34
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12.07 Confidentiality.............................................. 35
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12.08 Copyright of Trusts and ABA Members Plans.................... 35
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12.09 Maintenance and Disposition of Program Data and Records...... 36
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12.10 Rights to Software Following Termination..................... 36
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12.11 Investment Advisor Agreements................................ 38
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12.12 No Directed Brokerage........................................ 38
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12.13 Notice of Change in Status or Regulatory Action.............. 39
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12.14 Performance by Affiliates.................................... 39
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ARTICLE XIII. FEES AND EXPENSES......................................... 39
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13.01 State Street's Fees.......................................... 39
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13.02 ABRA's Fees.................................................. 40
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13.03 Additional Services.......................................... 40
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13.04 Expenses..................................................... 40
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ARTICLE XIV. LIMITATION OF LIABILITY AND INDEMNIFICATION................ 42
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14.01 Limitation of Liability for Instructions from Participants,
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Employers or Investors....................................... 42
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14.02 Limitation of Liability For Instructions From ABRA........... 42
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14.03 Limitation of Liability for Acts of Third Parties............ 42
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14.04 Indemnification.............................................. 42
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14.05 Counsel for Indemnified Persons.............................. 43
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14.06 Contribution................................................. 43
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14.07 Enforcement of Rights........................................ 43
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14.08 Supplemental Indemnification................................. 43
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14.09 Interests of ABA Members Collective Trust, Trusts and ABA
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Members Plans................................................ 44
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14.10 Payment of Expenses.......................................... 44
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ARTICLE XV. TERMINATION OF AGREEMENT.................................... 45
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15.01 Termination by State Street.................................. 45
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15.02 Termination For Cause........................................ 45
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15.03 Termination by ABRA.......................................... 45
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15.04 Consent to Termination....................................... 45
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15.05 Notice of Termination........................................ 46
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15.06 Extension Period............................................. 46
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15.07 Conversion................................................... 46
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15.08 Transfer to Successor Recordkeeper and Trustee............... 46
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15.09 Transfer of Program Assets................................... 47
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ARTICLE XVI. MISCELLANEOUS.............................................. 47
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16.01 Service Standards............................................ 47
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16.02 Plan Disqualification........................................ 47
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16.03 Agents of ABRA............................................... 47
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16.04 Good Faith................................................... 47
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16.05 Compliance with Laws......................................... 48
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16.06 Audits....................................................... 48
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16.07 Amendment.................................................... 48
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16.08 Assignment................................................... 48
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16.09 Choice of Law................................................ 49
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16.10 Arbitration of Disputes...................................... 49
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16.11 Notice....................................................... 50
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16.12 Severability of Provisions................................... 50
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16.13 Waiver....................................................... 50
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16.14 Captions..................................................... 51
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16.15 Action by ABRA............................................... 51
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16.16 Construction of Terms........................................ 51
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16.17 Execution in Counterparts.................................... 51
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16.18 Entire Agreement............................................. 51
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16.19 Authority.................................................... 51
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THIS ADMINISTRATIVE AND INVESTMENT SERVICES AGREEMENT (the "Agreement") is
effective as of the first day of January, 1999, between STATE STREET BANK AND
TRUST COMPANY ("State Street") and the AMERICAN BAR RETIREMENT ASSOCIATION
("ABRA") as an amendment and restatement of the Administrative and Investment
Services Agreement (the "Original Agreement") dated January 1, ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
W I T N E S S E T H :
WHEREAS, ABRA sponsors the American Bar Association Members Retirement
Program (the "Program") under which it has established the American Bar
Association Members Defined Benefit Pension Plan (the "ABA Members Pension
Plan"), the American Bar Association Members Retirement Plan (the "ABA Members
Retirement Plan"), the American Bar Association Members Retirement Trust (the
"Master Trust") and the American Bar Association Members Pooled Trust for
Retirement Plans (the "Pooled Trust"); and
WHEREAS, the Program has been marketed and administered pursuant to an
Administrative Services Agreement dated January 1, 1992 between ABRA and State
Street; and
WHEREAS, pursuant to the Original Agreement, effective as of January
1, 1992, ABRA amended the ABA Members Pension Plan and the ABA Members
Retirement Plan and amended and restated the Master Trust and the Pooled Trust
to reflect, among other changes, the appointment of State Street as sole
trustee; and
WHEREAS, pursuant to the Original Agreement State Street has
established the American Bar Association Members/State Street Collective Trust
("ABA Members Collective Trust"), consisting of certain Investment Options; and
WHEREAS, pursuant to Section 15.01 of the Original Agreement, ABRA and
State Street each have the right to terminate the Original Agreement as of the
first day of any calendar quarter after December 31, 1998 by notice to the other
party at least one year before the Date of Termination (as defined therein); and
WHEREAS, ABRA and State Street desire to renew their relationship
pursuant to this Agreement as an amendment and restatement of the Original
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and undertakings, and subject to the terms and
conditions, hereinafter set forth, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS
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1.01 "ABA" means the American Bar Association and any successor.
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1.02 "ABA Members Collective Trust" means the American Bar Association
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Members/State Street Collective Trust, a group trust established pursuant to a
Declaration of Trust dated as of August 8, 1991, as amended and restated October
17, 1991 and November 18, 1991, as further amended and in effect from time to
time, and maintained by State Street for the purpose of providing certain
Investment Options to Investors under the Program.
1.03 "ABA Members Pension Plan" means the American Bar Association
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Members Defined Benefit Pension Plan, as amended and in effect from time to
time.
1.04 "ABA Members Plans" means the ABA Members Pension Plan and the
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ABA Members Retirement Plan, collectively.
1.05 "ABA Members Retirement Plan" means the American Bar Association
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Members Retirement Plan, as amended and in effect from time to time.
1.06 "ABRA" means the American Bar Retirement Association, an
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Illinois not-for-profit corporation, and any successor through which qualified
retirement plans are offered to Qualified Employers.
1.07 "ABRA Program Services Unit" means the program services unit of
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State Street described in Section 12.01.
1.08 "Affiliate" means any person or entity, including any general
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partnership, limited partnership, corporation, joint venture, business trust,
limited liability partnership, limited liability company or similar
organization, that, directly or indirectly, controls, is controlled by, or is
under common control with State Street.
1.09 "Aggregate Recordkeeping Plan" means (a) any Employer Plan
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established pursuant to the ABA Members Pension Plan except as to any Prior Plan
Accounts under such Employer Plan or (b) any Individually Designed Plan with
respect to which the Trustee has not agreed to maintain separate accounts for
the Participants.
1.10 "Annual Marketing Plan" means the marketing plan submitted by
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State Street to ABRA pursuant to Section 8.01, as such plan is amended and in
effect from time to time.
1.11 "Board" means the Board of Directors of ABRA, or the comparable
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governing body of any successor thereto.
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1.12 "Business Day" means any day on which the New York Stock
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Exchange is open for trading. Any other reference in this Agreement to a "day,"
"week," "quarter," or "year" shall mean, respectively, a calendar day, a
calendar week, a calendar quarter or a calendar year.
1.13 "Cause" means behavior by either party to this Agreement that is
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described in Section 15.03 which gives the other party certain rights with
respect to this Agreement.
1.14 "Closed Option" means any investment to which Investors are no
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longer permitted to make contributions or transfers (by agreement between ABRA
and State Street), but which continues to constitute an investment under the
Program, including, as of the Renewal Date, the Real Estate Option.
1.15 "Code" means the Internal Revenue Code of 1986, as amended and
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in effect from time to time.
1.16 "Communications Consultant" means a person or organization
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engaged by State Street pursuant to Section 11.01 to provide communications
services and advice regarding the Program services, reports and communications
under this Agreement, including Sections 5.04, 6.07, 6.08,7.04 and 7.11.
1.17 "Date of Termination" means the date specified in the Notice of
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Termination delivered pursuant to Section 15.01 as the date as on which this
Agreement shall terminate.
1.18 "Effective Date" means January 1, 1992.
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1.19 "Employer" means (a) any Qualified Employer that maintains a
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Plan and (b) any successor to any such Qualified Employer that agrees, or is
required by operation of law, to continue the Plan.
1.20 "Employer Plan" means any employee benefit plan established and
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maintained by a Qualified Employer pursuant to either of the ABA Members Plans.
1.21 "Equitable" means The Equitable Life Assurance Society of The
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United States, which is, as of the date of the execution of this Agreement, a
New York life insurance company, and any successor thereto.
1.22 "ERISA" means the Employee Retirement Income Security Act of
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1974, as amended and in effect from time to time.
1.23 "Extension Period" means the period immediately following the
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Date of Termination during which State Street, at the written request of ABRA,
is obligated to perform its obligations and is entitled to exercise its rights
under this Agreement pursuant to Sections 15.05 and 15.06.
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1.24 "Fund" means any Investment Option that is a collective
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investment fund established from time to time under the ABA Members Collective
Trust.
1.25 "Fund Declaration" means any separate declaration executed by
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the Trustee, pursuant to Section 3.01 of the ABA Members Collective Trust, for
the purpose of establishing a Fund thereunder.
1.26 "Indemnified Person" means any person or entity entitled to
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indemnification pursuant to Sections 12.05 and 14.04.
1.27 "Individual Recordkeeping Plan" means (a) any Employer Plan
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established pursuant to the ABA Members Retirement Plan, (b) any Employer Plan
established pursuant to the ABA Members Pension Plan but only with respect to
Prior Plan Accounts and (c) any Individually Designed Plan with respect to which
the Trustee has agreed to maintain separate accounts for Participants.
1.28 "Individually Designed Plan" means any employee benefit plan
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(other than an Employer Plan) that is established and maintained by a Qualified
Employer, and with respect to which the Pooled Trust has been adopted.
1.29 "Investment Advisor" means any person or entity (other than
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State Street) engaged by State Street pursuant to Section 2.02 to make
recommendations regarding the acquisition or disposition of assets held in a
Fund.
1.30 "Investment Advisor Agreement" means any agreement entered into
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pursuant to Section 2.02 between State Street, as trustee of the ABA Members
Collective Trust, and an Investment Advisor.
1.31 "Investment Advisor Recommendation" means any written notice
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delivered by ABRA pursuant to Section 2.04 recommending a new Investment
Advisor, or a reallocation of assets among existing Investment Advisors, with
respect to a Fund.
1.32 "Investment Advisor Removal Recommendation" means any written
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notice delivered by ABRA pursuant to Section 2.05 recommending the removal of an
Investment Advisor.
1.33 "Investment Manager" means any person or entity (which may be
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State Street) engaged to manage the assets of an NCT Investment Option or a
Closed Option pursuant to Section 3.03 and the applicable provisions of the
Trusts.
1.34 "Investment Manager Agreement" means any agreement entered into
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pursuant to Section 3.03 with an Investment Manager.
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1.35 "Investment Option" means any investment offered to, or obtained
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for, Investors under the Program, including, without limitation, the Self-
Managed Option and any other NCT Investment Option established from time to time
pursuant to Section 3.02(b), but excluding the Closed Options.
1.36 "Investment Option Termination Notice" means a written notice
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delivered by ABRA or State Street pursuant to Section 4.05 recommending that (a)
an Investment Option or Closed Option cease to be available under the Program or
(b) an Investment Option become a Closed Option.
1.37 "Investor" means (a) the Participant, in the case of a Plan for
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which the Participant is authorized to direct the investment in, and allocation
among, Investment Options of the amounts attributable to such Participant's
accounts in the Plan (or applicable portion thereof) and (b) in the case of a
Plan (or portion thereof) not described in subsection (a) of this Section, the
person or entity having investment discretion with respect to the investment in,
and allocation among, Investment Options of the assets of such Plan (or
applicable portion thereof).
1.38 "Major Vendor" means any person or entity providing material
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services to the Program that State Street has engaged for the benefit of the
Program to provide customer services, marketing services, Plan or Participant
recordkeeping services, communications services, auditing or accounting
services, legal services or actuarial services.
1.39 "Master Trust" means the trust maintained under the ABA Members
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Plans, known as of the Renewal Date as the American Bar Association Members
Retirement Trust, as amended and in effect from time to time.
1.40 "New Investment Option" means any Investment Option that is not
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available under the Program as of the Renewal Date.
1.41 "New Investment Option Notice" means a written notice delivered
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by ABRA or State Street pursuant to (i) Section 4.01 proposing that a New
Investment Option be provided as (a) an additional Fund established under the
ABA Members Collective Trust or (b) an additional NCT Investment Option
available under the Trusts or (ii) Section 4.05(c) proposing that a Fund become
an NCT Investment Option.
1.42 "Non-Collective Trust Investment Option" or "NCT Investment
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Option" means any Investment Option that is not a Fund and is made available
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under the Program pursuant to Section 3.02.
1.43 "Notice of Termination" means a written notice delivered by
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State Street or by ABRA pursuant to Section 15.01 declaring an intent to
terminate this Agreement.
1.44 "Participant" means any person for whom benefits under a Plan
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are provided under the Trusts including, where the context so requires, (a) a
beneficiary designated under the
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terms of a Plan to receive a benefit after the death of a Participant and (b) a
person designated by an Employer in writing to the Trustee as having been
determined by the Employer to be an alternate payee entitled to benefits under
the Trust in accordance with a qualified domestic relations order as defined in
Section 414(p) of the Code.
1.45 "Plan" means an Employer Plan, an Individually Designed Plan, or
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both, as the case may be.
1.46 "Pooled Trust" means the trust maintained under the Program to
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hold assets of Individually Designed Plans, known as of the Renewal Date as the
American Bar Association Members Pooled Trust for Retirement Plans, as amended
and in effect from time to time.
1.47 "Principal Protected Product" means any Investment Option now or
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hereafter available under the Program (including, as of the Renewal Date, the
Stable Asset Return Fund) that:
(a) is designated as a Principal Protected Product by agreement
between State Street and ABRA; or
(b) (i) is valued based on book value accounting principles,
(ii) provides a guarantee of principal (including, at any time where such
guaranteed principal is or may be withdrawn, a guarantee of remaining
principal), (iii) provides a reasonable expectation to an Investor that
principal will not be impaired or (iv) consists of a pool of assets representing
underlying investments with a weighted average maturity of one year or less.
1.48 "Principal Protected Product Standards" means the investment-
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performance and credit-quality benchmarks established by ABRA and State Street
with respect to each Principal Protected Product offered or made available under
the Program, as set forth in Appendix B, as amended from time to time, pursuant
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to Section 4.02.
1.49 "Prior Plan Account" means any account established and
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maintained for amounts attributable to employer contributions under another
qualified plan and transferred to the Trustee of the Master Trust in accordance
with applicable provisions of an Employer Plan under the ABA Members Pension
Plan.
1.50 "Program" means the program sponsored by ABRA for Qualified
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Employers that provides for administrative, recordkeeping, custodial and
investment services and includes the ABA Members Plans, the Trusts, the
Investment Options and the Closed Options, known as of the Renewal Date as the
American Bar Association Members Retirement Program, as amended from time to
time.
1.51 "Program Data and Records" means (a) all Participant, Plan,
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Employer, Investor and Trust records acquired by, provided to, created by or
maintained by State Street pursuant to this Agreement, (b) all data collected or
compiled by State Street under the Annual
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Marketing Plan, (c) all information made available to State Street pursuant to
Article IX, (d) all reports compiled by State Street pursuant to, or otherwise
in the course of performing its obligations under, this Agreement, (e) all
reports or other information made available to State Street by any party engaged
to provide services to the Program (including the consultant engaged pursuant to
Section 4.03) and (f) all data, records and other information derived from any
of the foregoing.
1.52 "Prospectus" means the prospectus included within the most
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recent registration statement, as amended from time to time, filed by State
Street with the Securities and Exchange Commission with respect to the ABA
Members Collective Trust.
1.53 "Qualified Bar Association" means an organization that is
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represented in the House of Delegates of the ABA.
1.54 "Qualified Employer" means (a) any sole practitioner,
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partnership, corporation, limited liability partnership, limited liability
company or association engaged in the practice of law, provided that the sole
practitioner or at least one partner of the partnership, one shareholder of the
corporation or one member of the limited liability partnership or company is a
member or associate of the ABA or of a Qualified Bar Association, (b) the ABA,
(c) any Qualified Bar Association, and (d) any organization that does not engage
in the practice of law but is closely associated with the legal profession,
which receives the approval of ABRA, and which has as an owner or a member of
its governing board a member or associate of the ABA.
1.55 "Real Estate Option" means the Investment Option held under the
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Equitable Separate Account Number 30 previously made available under the Program
by Equitable under Group Annuity Contract No. AC2550 issued by the Equitable
Life Assurance Society of the United States.
1.56 "Renewal Date" means January 1, 1999.
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1.57 "Self-Managed Option" means the Investment Option available
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under the Trusts and maintained in accordance with Section 3.02(a), pursuant to
which an Investor may designate the investment of assets of a Plan or of a
Participant's account, as the case may be, in securities selected by such
Investor.
1.58 "Service Standards" means those identified minimum performance
-----------------
standards established by agreement between State Street and ABRA and set forth
in Appendix A, as amended from time to time pursuant to Section 16.01.
----------
1.59 "State Street" means State Street Bank and Trust Company, a
------------
trust company organized and existing under the laws of The Commonwealth of
Massachusetts, and any entity that succeeds to State Street's obligations under
this Agreement by operation of law or to which such obligations are otherwise
assigned with the consent of ABRA.
-7-
1.60 "State Street Software" means any and all (i) software systems
---------------------
and enhancements thereto developed and maintained by State Street in connection
with or for use of the Program, and (ii) modifications or enhancements developed
by State Street to software obtained from outside vendors for use in connection
with the Program.
1.61 "Transfer Completion Date" means the date as of which ABRA or a
------------------------
third party designated by it assumes responsibility for State Street's
obligations under this Agreement, which shall be the later of the Date of
Termination or the end of the Extension Period.
1.62 "Trustee" means the trustee of the Master Trust and the Pooled
-------
Trust from time to time.
1.63 "Trust" means the Master Trust, the Pooled Trust, and "Trusts"
----- ------
means both the Master Trust and the Pooled Trust.
ARTICLE II. THE ABA MEMBERS COLLECTIVE TRUST AND INVESTMENT OPTIONS UNDER THE
---------- -----------------------------------------------------------------
ABA MEMBERS COLLECTIVE TRUST
-----------------------------
2.01 Establishment and Maintenance. State Street has established and
-----------------------------
shall maintain in accordance with this Agreement the ABA Members Collective
Trust with exclusive management and control over the assets thereof. The ABA
Members Collective Trust shall include as of the Renewal Date, the Stable Asset
Return Fund, the Index Equity Fund, the Balanced Fund, the Growth Fund, the
Value Fund, the Aggressive Equity Fund, the International Equity Fund and the
Structured Portfolio Service, and shall include such other Funds as may be
established from time to time pursuant to this Article II and Article IV.
2.02 Investment Advisors. State Street may engage one or more
-------------------
Investment Advisors for each of the Funds only in accordance with the following
procedures and subject to the provisions of Section 4.02:
(a) Each Investment Advisor, if any, shall be identified in the
appropriate Fund Declaration or attachment thereto;
(b) State Street shall enter into an Investment Advisor
Agreement with each Investment Advisor, which Investment Advisor Agreement shall
include, among other things (i) representations that the Investment Advisor is
registered or exempt under, or excluded from, the Investment Advisers Act of
1940, as amended, and is in the business of acting as a fiduciary with respect
to assets of various retirement plans and trusts (ii) an acknowledgment in
writing that the Investment Advisor is a fiduciary as defined in ERISA with
respect to the applicable assets of the Plans and the Trusts, and each such
agreement may include supplemental guidelines governing the Investment Advisor's
activities;
(c) If more than one Investment Advisor is engaged to advise
State Street with respect to a single Fund, each applicable Investment Advisor
Agreement shall
-8-
designate the portion of the assets of, contributions and transfers to,
and withdrawals and transfers from, such Fund to be allocated to each such
Investment Advisor; and
(d) An Investment Advisor shall not be permitted to take any
action with respect to any Fund that, in the reasonable opinion of State Street,
would cause the Fund to cease to qualify as a fund maintained by a bank within
the meaning of (i) Section 3(c)(11) of the Investment Company Act of 1940, as
amended, and any successor provision thereto, and (ii) Section 3(a)(2) of the
Securities Act of 1933, as amended, and any successor provision thereto.
2.03 Monitoring of Investment Advisors. As sponsor of the Program
---------------------------------
and on behalf of Participants, Employers and Investors, ABRA shall be entitled
to monitor the performance of each Investment Advisor and the relationship
between State Street and each Investment Advisor.
2.04 Investment Advisor Recommendation. As sponsor of the Program
---------------------------------
and on behalf of Participants, Employers and Investors, ABRA may, at any time
and from time to time, deliver to State Street an Investment Advisor
Recommendation recommending that (a) the assets in a Fund be reallocated among
existing Investment Advisors or (b) subject to Section 4.02, an additional
Investment Advisor or Advisors be appointed with respect to a Fund (in which
case, such Investment Advisor Recommendation shall also indicate the suggested
allocation of assets among the Investment Advisors to such Fund). State Street
shall give full consideration to each Investment Advisor Recommendation from
ABRA and shall respond to ABRA, no later than thirty (30) days after the date of
State Street's receipt of such Investment Advisor Recommendation, as to whether,
in what manner, and on what time frame such appointment or reallocation will be
effected and the reasons for such response.
2.05 Investment Advisor Removal Recommendation by ABRA. As sponsor
-------------------------------------------------
of the Program and on behalf of Participants, Employers and Investors, ABRA may,
at any time and from time to time, deliver to State Street an Investment Advisor
Removal Recommendation with respect to an Investment Advisor. State Street shall
give full consideration to each Investment Advisor Removal Recommendation from
ABRA and shall respond to ABRA, no later than thirty (30) days after the date of
State Street's receipt of such Investment Advisor Removal Recommendation,
indicating whether, in what manner and during what time frame such action will
be taken with respect to such Investment Advisor and the reasons therefor. If
ABRA indicates in such Investment Advisor Removal Recommendation that ABRA
believes such Investment Advisor has engaged in willful misconduct, gross
negligence or a continuing pattern of negligence, then State Street's response
pursuant to the preceding sentence shall be given to ABRA within five (5)
Business Days.
2.06 Investment Advisor Removal by State Street. Subject to
------------------------------------------
applicable laws and regulations, to its reasonable administrative capabilities
and other responsibilities under the Program and to the provisions of the
respective Investment Advisor Agreement, in the absence of an Investment Advisor
Removal Recommendation from ABRA, State Street may remove any
-9-
Investment Advisor thirty (30) days after written notice is received by ABRA
explaining the reasons for the removal; provided, however, that
(a) State Street may remove an Investment Advisor with concurrent
notice to ABRA if State Street reasonably determines that such urgent action is
necessary;
(b) State Street may not remove an Investment Advisor without engaging
a new Investment Advisor or allocating such assets to an existing Investment
Advisor; and
(c) Upon receipt of notice pursuant to this Section, ABRA may make
suggestions or comments regarding State Street's action or proposed action, and
State Street will give full consideration thereto.
2.07 Amendments to or Mergers Under ABA Members Collective Trust.
-----------------------------------------------------------
(a) State Street shall make all amendments to the ABA Members
Collective Trust and agreements thereunder that are necessary to (i) comply with
State Street's reasonable administrative requirements, (ii) permit Funds to be
offered, made available, maintained, merged, divided or terminated, (iii) comply
with changes in the ABA Members Plans, the Trusts and applicable laws and
regulations, and (iv) enable State Street to manage and control the ABA Members
Collective Trust and the Funds established thereunder in accordance with the
terms of this Agreement and the ABA Members Collective Trust. In making any
amendment to the ABA Members Collective Trust, State Street shall exercise its
reasonable judgment as to the content and timing of such amendment.
(b) State Street shall furnish to ABRA thirty (30) days prior to
adoption of any amendment made pursuant to Section 7.01 of the ABA Members
Collective Trust or any amendment to a Fund Declaration made pursuant to Section
3.03(a) of the ABA Members Collective Trust, (i) written notice of the reasons
for any such amendment and (ii) copies of any such amendment; provided, however,
that State Street may make any such amendment, with concurrent notice to ABRA if
State Street reasonably determines that such urgent amendment is necessary or
appropriate. ABRA may make comments and suggestions in connection with any such
amendment, and State Street shall give full consideration thereto. State Street
shall, to the extent necessary, submit such amendments to the Internal Revenue
Service and other governmental agencies for approval and shall provide ABRA with
copies of the submissions at least thirty (30) days prior to submission and
copies of such approvals and other responses promptly after receipt thereof.
ABRA shall offer timely assistance to State Street in making such submissions
and obtaining such approvals and may make comments or suggestions regarding such
submissions, and State Street shall give full consideration thereto.
(c) In the event that State Street exercises its authority to
terminate a Fund, to divide a Fund into multiple Funds or to merge two Funds
pursuant to Sections 7.02 and 7.03, respectively, of the ABA Members Collective
Trust, State Street shall notify ABRA thereof
-10-
pursuant to the notice procedures in Section 2.07(b) for amendments; provided,
however, that sixty (60) days notice shall be substituted for thirty (30) days
notice; and provided, further, that New Investment Options may be made
available, and Investment Options may be terminated, only in accordance with
Article IV. Nothing in this Section shall prevent ABRA from proposing, in
accordance with Section 3.02 and Article IV, that a Fund in the process of
termination or merger become an NCT Investment Option.
2.08 Consideration of State Street Regarding Funds. In considering
---------------------------------------------
an Investment Advisor Recommendation under Section 2.04, an Investment Advisor
Removal Recommendation under Section 2.05 or suggestions or comments under
Section 2.07, or in considering or taking any other action contemplated by
Article II or otherwise with respect to an Investment Advisor, State Street, in
the exercise of its discretion with respect to such action, shall consult with
ABRA as sponsor of the Program and on behalf of Participants, Employers and
Investors, and shall give full consideration to any recommendation delivered
pursuant to Article II, as well as to opinions, information, questions and
concerns presented by ABRA. State Street may also give consideration to, among
other factors, (a) the requirements of the ABA Members Collective Trust, (b)
legal and regulatory matters, (c) State Street's other responsibilities under
the Program in its capacity as trustee of the ABA Members Collective Trust and
as Trustee and (d) State Street's reasonable administrative capabilities.
ARTICLE III. THE TRUSTS AND NCT INVESTMENT OPTIONS UNDER THE TRUSTS
------------ ------------------------------------------------------
3.01 Trustee of Trusts. ABRA shall retain ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
-----------------
▇▇▇▇▇▇ shall serve, as sole Trustee until the Transfer Completion Date.
3.02 NCT Investment Options. NCT Investment Options shall be
----------------------
established or made available as follows:
(a) State Street shall maintain the Self-Managed Option under the
applicable provisions of the Trusts, which shall constitute an Investment Option
under the Program. As soon as practicable after the Renewal Date, the Self-
Managed Option shall be made available to any Investor, except that, with
respect to any Plan maintained under the ABA Members Retirement Plan, each
adopting Employer may elect not to have the Self-Managed Option available with
respect to its Plan . The terms and conditions of the Self-Managed Option,
including without limitation the classes of assets that an Investor may select
under the Self Managed Option and an appropriate fee schedule, shall be
determined by agreement between State Street and ABRA. The Self-Managed Option
shall meet the reasonable objectives established by ABRA, and State Street shall
use all reasonable efforts that are consistent with (i) the provisions of
Section 3.08, (ii) the requirements of the Trusts and legal and regulatory
considerations, (iii) State Street's responsibilities under the Program in its
capacity as Trustee, and (iv) the reasonable costs and expenses of administering
the Self-Managed Option; and
-11-
(b) Subject to the provisions of Section 3.08 and in accordance with
Article IV, State Street shall permit the establishment of NCT Investment
Options not described in Section 3.02(a) and ABRA shall be responsible for
designating or approving the terms and conditions of each such NCT Investment
Option (including the appointment of an Investment Manager pursuant to Section
3.03), provided that:
(i) a fee schedule and a method of payment for the costs and expenses
necessary to establish and maintain such NCT Investment Option has
been or will be established in accordance with Section 13.04;
(ii) ABRA shall not amend, or authorize the amendment of, the
designated terms and conditions of an NCT Investment Option without
reasonable prior written notice to State Street; and
(iii) the requirements set forth in Section 3.06 are met with respect
to such NCT Investment Option.
3.03 Investment Managers. Subject to Sections 3.02 and 4.02, ABRA
-------------------
shall (a) appoint one or more Investment Managers for each NCT Investment Option
(other than the Self-Managed Option) and each Closed Option that would be an NCT
Investment Option if it were not closed, in either case the assets of which are
"plan assets" subject to Part 4 of Title I of ERISA, and (b) enter into an
Investment Manager Agreement with each such Investment Manager, which State
Street shall acknowledge. ABRA shall be the sole appointing fiduciary of any
Investment Manager appointed pursuant to Article III, and State Street shall
have no responsibility or liability for the acts or omissions of such Investment
Manager other than as provided in Section 11.03 of the Master Trust and Section
11.03 of the Pooled Trust. ABRA may (with State Street's consent) appoint State
Street as an Investment Manager, in which case State Street shall enter into an
Investment Manager Agreement with ABRA pursuant to this Section, and the terms
of such Investment Manager Agreement regarding State Street's liabilities shall
supersede the provisions of this Section 3.03.
3.04 Required Investment Manager Termination. Pursuant to the
---------------------------------------
reasonable written request of either ABRA or State Street, as the case may be,
and in accordance with the applicable Investment Manager Agreement, ABRA shall
terminate an Investment Manager if such Investment Manager (a) fails to satisfy
the requirements of Section 3.06, (b) in the reasonable judgment of State
Street, as part of a continuing pattern of negligence, directs or fails to
direct State Street to act, or to refrain from acting, under the Trusts, and
State Street knows that by such action or failure to act it would be
participating in a breach of fiduciary duty by the Investment Manager or (c) in
the reasonable judgment of ABRA or State Street, breaches its fiduciary duty or
the applicable Investment Manager Agreement in a manner that is (i) willful,
(ii) knowing, or (iii) grossly negligent. Any Investment Manager Agreement
entered into pursuant to Section 3.03 shall include a provision to permit
immediate termination pursuant to this Section 3.04.
-12-
3.05 Optional Investment Manager Termination. ABRA, at any time and
---------------------------------------
from time to time, may terminate any Investment Manager appointed pursuant to
Section 3.03, subject to (a) the terms of the respective Investment Manager
Agreement, (b) the reasonable administrative requirements of State Street and
(c) the terms of the Trusts. Unless the NCT Investment Option or Closed Option
to which the Investment Manager provides services is in the process of
termination in accordance with Section 4.05, such termination shall not be
effective until such time as a successor Investment Manager has been appointed
in accordance with Section 3.03.
3.06 Requirements. State Street shall not establish, or permit the
------------
establishment of, any NCT Investment Option unless such NCT Investment Option is
registered under, or qualifies for an exemption in accordance with, applicable
securities laws (including state securities laws) or unless such NCT Investment
Option is otherwise not subject to such laws, as determined in the reasonable
judgment of State Street, based on written advice of outside counsel reasonably
acceptable to ABRA. Each NCT Investment Option, and each Closed Option that
would be an NCT Investment Option if it were not closed (as of the Renewal Date,
the Real Estate Option), shall be maintained in accordance with all applicable
employee benefits, securities, banking and insurance laws and regulations by the
Investment Manager, the issuer of such NCT Investment Option or Closed Option,
or other appropriate party responsible for, or involved in, the offering or
maintaining of such NCT Investment Option or Closed Option. Each Investment
Manager appointed pursuant to Section 3.03 shall (a) be qualified at all times
under the terms of the Trusts to serve as an Investment Manager, (b) be deemed
an investment manager under Section 3(38) of ERISA, (c) be a "qualified
professional asset manager" as described in Prohibited Transaction Class
Exemption 84-14 issued by the United States Department of Labor, (d) acknowledge
in writing that it is a fiduciary with respect to the Plans and Trusts within
the meaning of Section 3(21)(A) of ERISA, (e) agree to conform and have the
capability to conform to State Street's reasonable administrative standards
regarding the operation of the Trusts, reporting, withdrawals, payment of
benefits and other similar matters and (f) agree to indemnify ABRA and State
Street (to the reasonable satisfaction of each party) for losses, damages and
expenses (including attorneys' fees) incurred in connection with a claim or
proceeding resulting from or arising out of the Investment Manager's (i)
negligence, (ii) reckless or intentional act or omission, (iii) violation of
applicable law, (iv) violation of fiduciary duty (including fiduciary duty under
ERISA) and (v) violation of the Investment Manager Agreement.
3.07 Temporary Closure of an NCT Investment Option. At any time that
---------------------------------------------
an NCT Investment Option is not offered or maintained in accordance with the
requirements set forth in Section 3.06 (as determined in the reasonable judgment
of State Street), State Street shall have the right (a) to temporarily prevent
such NCT Investment Option from receiving or accepting contributions or
transfers and (b) to otherwise treat such NCT Investment Option as a Closed
Option under this Agreement, pending (y) termination of the NCT Investment
Option in accordance with Section 4.05 or (z) agreement with ABRA regarding
other action to be taken with respect to such NCT Investment Option.
-13-
3.08 Establishment of NCT Investment Options. NCT Investment Options
---------------------------------------
shall be established pursuant to Section 3.02 and in accordance with Article IV,
provided that the requirements of Section 3.06 are satisfied, unless State
Street demonstrates to the reasonable satisfaction of ABRA that the
establishment and administration of an NCT Investment Option are beyond its
reasonable administrative capabilities.
ARTICLE IV. ALL INVESTMENT OPTIONS.
---------- ----------------------
4.01 New Investment Options. ABRA, as sponsor of the Program and on
----------------------
behalf of Participants, Employees and Investors, and State Street shall each
have the right, at any time and from time to time, to deliver to the other a New
Investment Option Notice.
(a) With respect to a New Investment Option Notice delivered by
ABRA, State Street shall respond to ABRA as follows:
(i) If the proposed New Investment Option is to be established
as a Fund, State Street's response to ABRA shall indicate
whether, upon consideration pursuant to ▇▇▇▇▇▇▇ ▇.▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ will establish the New Investment Option proposed in such
New Investment Option Notice as a Fund, and
(A) if State Street determines to establish such
New Investment Option as a Fund, its response to ABRA
shall include a proposed fee schedule for the Fund and
state the date by which such option is to be
established; or
(B) if State Street determines not to establish
such New Investment Option as a Fund, its response to
ABRA shall include the reasons for such determination,
and State Street shall treat such New Investment Option
as an NCT Investment Option in accordance with Section
4.01(a)(ii).
(ii) If a New Investment Option is to be an NCT Investment
Option, State Street shall establish such proposed New
Investment Option as an NCT Option, subject to Section 3.08 and
the provisions referenced therein, according to the following
procedures:
(A) if State Street determines to establish such
New Investment Option as an NCT Investment Option, its
notification to ABRA shall include a proposed fee
schedule and a date by which such New Investment Option
shall be established; or
-14-
(B) if State Street determines not to establish
such New Investment Option as an NCT Investment Option,
its notification to ABRA shall include the reasons why
such New Investment Option cannot be established in
accordance with Section 3.08 and the provisions
referenced therein.
(iii) State Street's response to an ABRA New Investment Option
Notice under this Section 4.01(a) shall be delivered to ABRA
within 30 days after receipt thereof, except that the response
required under Section 4.2(a)(ii) by reason of State Street's
determination not to establish a New Investment Option as a Fund
(as described in Section 4.2(a)(i)(B)), shall be delivered no
later than forty-five days after State Street's initial receipt
of such New Investment Option Notice from ABRA.
(b) With respect to a New Investment Option Notice delivered
by State Street (which shall include a proposed fee schedule), no later than
thirty (30) days after the date of ABRA's receipt of such New Investment Option
Notice, ABRA shall either accept or reject the proposal.
4.02 Exclusive Management of Principal Protected Products. With
----------------------------------------------------
respect to any Principal Protected Product, including any New Investment Option
that is a Principal Protected Product:
(a) Except as provided below, ABRA shall not (i) request that
State Street engage an Investment Advisor, (ii) engage any Investment Manager
(other than State Street) or (iii) accept proposals or bids from any party
(other than State Street).
(b) If a New Investment Option Notice is delivered pursuant to
Section 4.01 with respect to a Principal Protected Product and is accepted by
the party to whom it is delivered, then prior to the establishment of such New
Investment Option, State Street and ABRA shall agree on appropriate Principal
Protected Product Standards for such New Investment Option, which standards
shall then be included in Appendix B. If ABRA and State Street are unable to
----------
agree on Principal Protected Product Standards with respect to such New
Investment Option, ABRA shall direct the consultant engaged pursuant to Section
4.03 to designate appropriate Principal Protected Product Standards by reference
to comparable investment products. If State Street does not accept such
Principal Protected Product Standards, then State Street and ABRA shall submit
to arbitration in accordance with Section 16.10 for the purpose of establishing
Principal Protected Product Standards for such New Investment Option. State
Street may, in its discretion, accept or reject any Principal Protected Product
Standards determined in accordance with Section 16.10. If State Street rejects
such Principal Protected Product Standards for a New Investment Option, State
Street shall be deemed to have waived its rights under Section 4.02(a) to the
exclusive management of that Principal Protected Product and ABRA may, with
respect to that Principal Protected Product, (i) generally solicit and accept
bids
-15-
and proposals from, and negotiate with, other parties, (ii) request that State
Street engage an Investment Advisor for a Fund and (iii) negotiate with and
engage an Investment Manager for an NCT Investment Option; provided, however,
that if a Principal Protected Product is established with an Investment Advisor
or Investment Manager that is not State Street, such Investment Advisor or
Investment Manager shall agree to meet the same Principal Protected Product
Standards that were rejected by State Street for the period of time specified
therein.
(c) If State Street fails both (i) to meet any one of the
Principal Protected Product Standards for the specified time period, as set
forth in Appendix B, as amended from time, to time, and (ii) to meet such
----------
Principal Protected Product Standards for both of the next two (2) consecutive
calendar quarters following the end of such specified time period, then State
Street shall be deemed to have waived its rights under Section 4.02(a) to the
exclusive management of that Principal Protected Product and ABRA may deliver an
Investment Advisor Recommendation pursuant to Section 2.04 (if such Principal
Protected Product is a Fund) or appoint a new Investment Manager pursuant to
Section 3.03 (if such Principal Protected Product is an NCT Investment Option)
with respect to that Principal Protected Product; provided that such Investment
Advisor or Investment Manager shall agree to meet the Principal Protected
Product Standards set forth in Appendix B, as amended from time to time, for
----------
such Principal Protected Product.
(d) If (i) ABRA makes one or more reductions that are material
in the aggregate (including adjustments regarding performance, credit quality or
measurement period) with respect to any Principal Protected Product Standard
(which changed Principal Protected Product Standard shall be included in
Appendix B) for a Principal Protected Product with an Investment Advisor or
----------
Investment Manager that is not State Street, or (ii) an Investment Advisor or
Investment Manager that is not State Street fails both to meet the Principal
Protected Product Standards for a Principal Protected Product set forth in
Appendix B, as amended from time to time, (including any time period specified
----------
therein) and to meet such Principal Protected Product Standards for a period
negotiated with such Investment Advisor or Investment Manager (not in excess of
two (2) consecutive quarters following the end of the time period specified in
Appendix B), then ABRA shall provide prompt notice to State Street. Within
----------
thirty (30) days of State Street's receipt of such notice, State Street shall
have the right, as applicable, (1) to accept such changed or new Principal
Protected Product Standards with respect to such Principal Protected Product or
(2) to commence negotiations with ABRA to establish new Principal Protected
Product Standards for that Principal Protected Product in accordance with the
procedures set forth in Section 4.02(b) and may, in either case, if it accepts
such Principal Protected Product Standards, (A) remove such Investment Advisor
(without regard to Sections 2.05 and 2.06) or (B) remove, or require ABRA to
remove, such Investment Manager pursuant to Section 3.04, as applicable.
(e) Each of State Street and ABRA shall have the right to
require the other to commence negotiations to establish a new Principal
Protected Product Standard for any Principal Protected Product (treated in the
same manner as a new Investment Option Notice in accordance with the procedures
set forth in Section 4.02(b)) to reflect changes in the financial
-16-
marketplace with respect to comparable investment products, provided that each
party may exercise such right with respect to each Principal Protected Product
only one time during each successive eighteen month period.
4.03 Consultant. ABRA may from time to time hire a consultant to
----------
assist ABRA in (a) making recommendations to State Street regarding the
appointment of Investment Advisors, (b) monitoring the performance of Investment
Advisors, (c) recommending and engaging Investment Managers, (d) monitoring the
performance of Investment Managers, (e) monitoring the performance of State
Street and (f) monitoring the relationship between State Street and the
Investment Advisors and Investment Managers. ABRA shall direct such consultant
to meet with, make presentations to, provide information to and otherwise be
available to State Street pursuant to State Street's reasonable request.
Nothing in this Section shall prevent ABRA or State Street from hiring for its
own exclusive benefit and at its own expense one or more additional consultants
to perform the services enumerated in this Section.
4.04 Compliance with Laws. State Street shall be responsible for
--------------------
determining that, and shall take any and all action as shall be necessary so
that, the offering, providing and maintaining of all Investment Options and
Closed Options at all times prior to the Transfer Completion Date shall comply
with all applicable employee benefit, securities, banking and insurance laws and
regulations. Any person or entity that provides investment advisory, investment
management or other services under the Trusts or the ABA Members Collective
Trust shall be required (a) to conform to State Street's reasonable
administrative standards regarding frequency of valuation, transfer of funds,
withdrawals, payment of benefits and other similar matters and (b) to comply
with all applicable employee benefit, securities, banking and insurance laws and
regulations.
4.05 Termination of Investment Options. ABRA, as sponsor of the
---------------------------------
Program and on behalf of Participants, Employers and Investors, and State Street
shall each have the right, at any time and from time to time, to deliver to the
other an Investment Option Termination Notice with respect to any Investment
Option or Closed Option. An Investment Option Termination Notice shall specify
an effective date for the proposed action and may request that an Investment
Option be terminated, an Investment Option be designated a Closed Option or a
Closed Option be terminated; provided, however, that
(a) With respect to an Investment Option Termination Notice
delivered by ABRA to State Street regarding a Closed Option (that was a Fund
when it was closed), State Street shall respond to ABRA no later than thirty
(30) days after State Street's receipt of such Investment Option Termination
Notice to indicate (i) whether, (ii) in what manner and (iii) on what time frame
such Investment Option or Closed Option will be terminated or closed, in the
reasonable discretion of State Street, in accordance with the ABA Members
Collective Trust.
(b) With respect to an Investment Option Termination Notice
delivered by ABRA to State Street regarding an NCT Investment Option (or a
Closed Option
-17-
that was an NCT Investment Option when it was closed), State Street shall
respond to ABRA no later than thirty (30) days after State Street's receipt of
such Investment Option Termination Notice to indicate (i) in what manner and
(ii) on what time frame such Investment Option or Closed Option will be
terminated or closed, in accordance with the Trusts.
(c) With respect to an Investment Option Termination Notice
delivered by State Street to ABRA (which shall include a proposed manner and
time frame for termination or closure) regarding a Fund (or Closed Option that
was a Fund when it was closed), no later than thirty (30) days after ABRA's
receipt of such Investment Option Termination Notice, ABRA shall accept the
proposal or deliver a New Investment Option Notice proposing that the Fund
become an NCT Investment Option; provided, however, that State Street retains
reasonable discretion to terminate or close the Investment Option or Closed
Option without the consent of ABRA, subject to the considerations set forth in
Section 2.08, upon sixty (60) days' prior written notice to ABRA, or if State
Street reasonably believes that urgency is necessary, upon concurrent notice to
ABRA.
(d) With respect to an Investment Option Termination Notice
delivered by State Street to ABRA (which shall include a proposed manner and
time frame for termination or closure and the reasons (including as provided in
Sections 3.06 and 3.08) for such proposal) regarding an NCT Investment Option
(or a Closed Option that was an NCT Investment Option when it was closed), no
later than sixty (60) days after ABRA's receipt of such Investment Option
Termination Notice, ABRA shall either accept or reject the proposal; provided,
however, that if State Street reasonably determines that urgency is necessary
and so notifies ABRA, ABRA shall respond to State Street within five (5)
Business Days of ABRA's receipt of such notice. If ABRA rejects such proposal,
the NCT Investment Option shall remain an Investment Option or a Closed Option
as long as it is offered and maintained in accordance with the requirements set
forth in Sections 3.06 and 3.08 (as determined in the reasonable judgment of
State Street), unless ABRA and State Street otherwise agree in accordance with
the procedures set forth in Articles III and IV.
4.06 General Considerations of State Street. In conducting its role
--------------------------------------
under Article IV with respect to (a) a Fund, (b) a New Investment Option
proposed to be a Fund, or (c) a Closed Option that had been a Fund when it was
closed, State Street shall act in accordance with Section 2.08. In conducting
its role under Article IV with respect to (w) an NCT Investment Option, (x) a
New Investment Option proposed to be an NCT Investment Option, (y) a Fund
proposed to be changed to an NCT Investment Option, or (z) a Closed Option that
had been an NCT Investment Option when it was closed, State Street shall act in
accordance with Section 3.08.
ARTICLE V. MAINTENANCE OF TRUSTS AND PLANS
--------- -------------------------------
5.01 Necessary Amendments to Trusts and ABA Members Plans and Trusts.
---------------------------------------------------------------
ABRA, as sponsor of the ABA Members Plans, shall make all amendments to the ABA
Members Plans and any form of participation agreement or other agreements
thereunder and to
-18-
the Trusts that are necessary to comply with State Street's reasonable
administrative requirements, to permit Investment Options and Closed Options to
be offered, made available, maintained or terminated under the Program, or to
comply with applicable laws, regulations, revenue rulings, revenue procedures,
advisory opinions or other governmental pronouncements. All such amendments
shall be made in accordance with the following procedures:
(a) If ABRA has prepared a necessary amendment to the ABA
Members Plans or any form of participation agreement or other agreement
thereunder or to the Trusts, it shall provide such amendment to State Street for
review; and State Street shall be entitled to make comments and suggestions with
respect thereto (to which ABRA shall give full consideration), and shall conduct
its reviews under this Section in accordance with a reasonable schedule
specified by ABRA or, if none is specified, within a reasonable period of time.
(b) ABRA shall, to the extent necessary, submit such necessary
amendments to the Internal Revenue Service for approval. ABRA shall provide
copies of such submissions to State Street for review prior to submission and
State Street shall (i) be entitled to make comments and suggestions (to which
ABRA shall give full consideration), (ii) conduct such reviews in accordance
with a reasonable schedule specified by ABRA or, if none is specified, within a
reasonable period of time, and (iii) offer timely assistance to ABRA in making
such submissions and obtaining approvals thereof.
(c) Outside legal expenses incurred by either ABRA or State
Street pursuant to this Section shall be paid by such party incurring such
expense, but may be reimbursed by the Trusts or the ABA Members Collective Trust
to the extent permitted by Section 13.04.
5.02 Other Amendments to the Trusts and ABA Members Plans. From time
----------------------------------------------------
to time, ABRA and State Street may each notify the other of proposed amendments
or changes to the Trusts, the ABA Members Plans and any form of participation
agreement or other agreement thereunder that such party believes are appropriate
or desirable in connection with the Program, but not required under Section
5.01, in accordance with the following procedures:
(a) ABRA, as sponsor of the ABA Members Plans, shall be
responsible for making any amendment to the ABA Members Plans and any form of
participation agreement or other agreement thereunder and to the Trusts;
provided that State Street, together with ABRA, may make amendments to the
Trusts.
(b) Each party shall cooperate with the other to make such
amendments as both parties agree are reasonable and practicable, subject to the
terms of this Agreement.
(c) Each party shall be entitled to make comments and
suggestions on such amendments, to which the other party shall give full
consideration .
-19-
(d) ABRA shall, to the extent necessary, submit such
amendments to the Internal Revenue Service and other governmental agencies for
approval and shall provide State Street with copies of the submissions prior to
submission for review.
(e) State Street shall offer timely assistance to ABRA in
making such submissions and obtaining such approvals as may be necessary or
advisable, including by conducting its reviews under this Section in accordance
with a reasonable schedule specified by ABRA or, if none is specified, within a
reasonable period of time.
(f) Outside legal expenses incurred by either ABRA or State
Street pursuant to this Section shall be paid by such party incurring such
expense and shall not be an expense chargeable against the Trusts or the ABA
Members Collective Trust.
5.03 Notice to Employers of Amendments. State Street shall promptly
---------------------------------
notify each affected Employer of (a) any amendments to the Trusts, the ABA
Members Plans and any form of participation agreement or other agreement
thereunder, including amendments required to comply with applicable laws or
regulations, and (b) any actions the Employer must take to conform to such
amendments.
5.04 Forms. Subject to ▇▇▇▇▇▇▇ ▇▇.▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ shall design,
-----
maintain and provide to Employers, Investors and Participants, as the case may
be, such forms as are necessary under the ABA Members Plans and the Trusts in
order to make contributions, to request distributions and withdrawals, to
designate beneficiaries and to make elections in accordance with the applicable
provisions of the Code and ERISA regarding survivor benefits, and such other
forms as are or may become necessary for the administration of the Plans and
Trusts. Any changes to existing forms and any new forms shall be furnished to
ABRA as provided in Section 11.02.
5.05 Assistance to Employers. State Street shall provide technical,
-----------------------
operational and other appropriate assistance to each Employer that adopts one or
both of the ABA Members Plans as to (a) the design, operation and interpretation
of the Employer Plan, (b) the procedures to be used in making elections under
the Employer Plan, (c) the annual reports required to be filed with the Internal
Revenue Service and other federal agencies, (d) the application for Internal
Revenue Service approval of the Employer Plan and (e) the distribution options
available from time to time under the ABA Members Plans. In order to provide
assistance to the Employers, State Street shall maintain one or more toll-free
telephone numbers and employ an adequate number of customer service
representatives, each as are required to respond to Employers' inquiries on a
timely and responsive basis, in accordance with the applicable Service
Standards.
5.06 Plan Interpretation. ABRA, as sponsor of the Program, may
-------------------
provide any legal or other technical assistance as it may, from time to time,
determine is necessary or appropriate to assist with the proper interpretation
and operation of the Employer Plans with respect to issues brought to ABRA's
attention by State Street or otherwise. Outside legal and
-20-
other expenses incurred by ABRA pursuant to this Section shall be paid by ABRA,
but may be reimbursed by the Trusts or the ABA Members Collective Trust to the
extent permitted by Section 13.04.
ARTICLE VI. SERVICES WITH RESPECT TO INVESTMENT OPTIONS
---------- -------------------------------------------
6.01 Investment Records. State Street shall maintain records of each
------------------
Plan's interest in each Investment Option and Closed Option and shall maintain
such records on an individual basis with respect to each Participant's interest
in each Investment Option and Closed Option for each Individual Recordkeeping
Plan.
6.02 Contributions. State Street shall allocate all contributions
-------------
among the Investment Options in accordance with the applicable terms of the
Plans and the Trusts and the most recent written or recorded telephonic
instructions of the appropriate Investor. In the event that State Street has
received a contribution from an Employer that State Street believes to be
incorrect or investment instructions from an Investor that are invalid on their
face, it shall use its best efforts to contact the Employer or the Investor, as
the case may be, to clarify or correct such contribution amount or instructions.
State Street shall establish standard procedures (with reasonable notice to ABRA
and, if necessary or appropriate, to the Investors) regarding the action to be
taken by State Street in the interim, in accordance with the applicable Service
Standards.
6.03 Transfers. State Street shall transfer amounts among Investment
---------
Options or to one or more Investment Options from a Closed Option in accordance
with the applicable terms of the Plans and Trusts and the written, recorded
telephonic or electronic instructions (subject to Section 6.05) of the
appropriate Investor. To the extent that State Street has received no
instructions or such instructions are invalid on their face, State Street shall
use its best efforts to contact the Investor or the applicable Employer, as the
case may be, in order to obtain, clarify or correct such investment
instructions. If State Street receives invalid instructions, the affected assets
will not be transferred until valid instructions are received; provided, that if
State Street receives invalid instructions or no instructions where instructions
are required because assets must be transferred, the transfer will be promptly
made to the Stable Asset Return Fund or to such other Fund as is designated by
the Employer in the participation agreement, subject to applicable laws and
regulations. State Street shall send a written confirmation of each transfer to
the Investor with the authority to direct such transfer, in accordance with the
applicable Service Standards.
6.04 Telephone Service. State Street shall make available to
-----------------
Investors a telephone service using customer service representatives and a voice
response system through which an Investor may authorize and direct State Street
(i) to change the manner in which future contributions will be allocated among
the Investment Options and (ii) to make transfers between Investment Options or
to an Investment Option from a Closed Option. The use of such telephone service
shall be subject to applicable laws and regulations and to such reasonable
requirements and procedures as State Street may establish from time to time, a
copy of which
-▇▇-
▇▇▇▇▇ ▇▇▇▇▇▇ shall provide to ABRA; provided, however, that all authorizations
and directions made through such telephone service using customer service
representatives shall be recorded. State Street shall carry out the transactions
authorized by telephone in accordance with Section 6.03
6.05 Internet Services. State Street shall make available to
-----------------
Investors an internet accessible service at a date to be agreed upon by State
Street and ABRA during 1999 with features and functions suitable for the
Program, including the ability of Investors to (i) obtain account balance
information, (ii) change the manner in which future contributions will be
allocated among the Investment Options and (iii) to make transfers between
Investment Options or to an Investment Option from a Closed Option.
6.06 Assistance with Respect to Investment Options. State Street
---------------------------------------------
shall provide assistance to each Investor in connection with the procedures
applicable to making investment elections and allocations among Investment
Options in accordance with the applicable Service Standards; provided, however,
that State Street shall not recommend any Investment Option or attempt in any
way to influence an Investor's selection of any Investment Option. State Street
shall maintain one or more toll-free telephone numbers and internet access
pursuant to Section 6.05 and employ an adequate number of customer service
representatives, each as reasonably required to respond to Investors' inquiries
on a timely and responsive basis.
6.07 Recorded Information Concerning Investment Options. State
--------------------------------------------------
Street shall, to the extent permitted by applicable laws and regulations,
subject to Section 11.01, and in accordance with the applicable Service
Standards, maintain one or more toll-free numbers from which Investors may
obtain current information regarding interest rates available for unit values of
Funds (as determined under the ABA Members Collective Trust) and other
appropriate performance information relating to the Funds and, to the extent
such information has been provided to State Street, the NCT Investment Options
and the Closed Options. State Street shall use its best efforts to obtain on a
timely basis such information regarding the NCT Investment Options and Closed
Options of which State Street is not the Investment Manager.
6.08 Communication with Investors. State Street shall, subject to
----------------------------
Section 11.01, provide to each Investor all information and forms necessary to
effect an allocation of contributions among the Investment Options and transfers
between the Investment Options or from a Closed Option to an Investment Option,
(a) at the time of such Investor's initial investment, (b) upon request by the
Investor, (c) upon any termination of, or material change in the Program with
respect to, an Investment Option, Closed Option, Investment Advisor or
Investment Manager, (d) upon the establishment of a New Investment Option and
(e) at such other times as State Street may, upon consultation with ABRA,
determine to be appropriate, consistent with applicable Service Standards.
-22-
ARTICLE VII. SERVICES WITH RESPECT TO TRUSTS AND PLANS
----------- -----------------------------------------
7.01 Plan Records. State Street shall maintain records for all
------------
Plans. To the extent that Equitable or any other financial institution or third
party (other than an Employer, Participant or Investor) provides information to
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ may rely on the information so furnished. To the
extent an Employer, Participant or Investor provides information to ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ may rely on the information so furnished, unless on its
face, such information appears to be incorrect or invalid.
7.02 Additional Records for Individual Recordkeeping Plans. For
-----------------------------------------------------
Individual Recordkeeping Plans, State Street shall maintain records, including
but not limited to account balance, vested percentage, retirement date and
designated beneficiaries of each Participant, as provided under the applicable
Plan and Trust. The records of each account shall reflect separately amounts
attributable to Employer contributions, Participant after-tax contributions,
Employer matching contributions, pre-tax contributions under a cash or deferred
arrangement established pursuant to Section 401(k) of the Code, and amounts
transferred or rolled over from the plan of the Participant's previous employer
either directly or indirectly through an individual retirement account or
individual retirement annuity established pursuant to Section 408 of the Code.
To the extent that Equitable or any other financial institution or third party
(other than an Employer, Participant or Investor) provides information to ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ may rely on the information so furnished. To the extent an
Employer, Participant or Investor provides information to ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ may rely on the information so furnished, unless on its face such
information appears to be incorrect or invalid.
7.03 Additional Records For Plans Under ABA Members Pension Plan.
-----------------------------------------------------------
For Plans that have adopted the ABA Members Pension Plan, State Street shall (a)
maintain records of the accrued benefit, vested percentage, retirement date and
designated beneficiaries of each Participant under the ABA Members Pension Plan,
as provided in the ABA Members Pension Plan and the Master Trust, and (b)
provide, directly or through an independent actuarial firm, all actuarial
services required under the ABA Members Pension Plan. If State Street retains
an independent actuarial firm, (x) such services shall be performed under the
supervision of State Street and State Street shall remain responsible for such
performance, (y) any contract between State Street and an independent actuarial
firm shall provide that upon termination of such contract, all records (in their
then current format and structure) that were created or maintained in connection
with the ABA Members Plans shall be transferred to State Street or its
designated agent or, if on or after the Date of Termination, to ABRA or its
designated agent, and (z) State Street shall use all reasonable efforts either
to include a provision in any contract to the effect that, or otherwise to cause
the result that, such transfer be made without additional cost to the Program or
State Street or ABRA (including their designated agents). To the extent that
Equitable or any other financial institution or third party (other than an
Employer, Participant or Investor) provides information to State Street or such
independent actuarial firm, State Street and such independent actuarial firm may
rely on the information so furnished. To the extent an Employer, Participant or
Investor provides information to ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ may rely on the
information so furnished, unless on its face such information appears to be
incorrect or invalid.
-23-
7.04 Distributions and Withdrawals. Subject to applicable laws and
-----------------------------
regulations and upon the direction of the Employer or Participant, as the case
may be, State Street shall in accordance with the terms, as applicable, of the
ABA Members Plans, Individually Designed Plans that are Individual Recordkeeping
Plans and the Trusts, distribute the account balance or accrued benefit of each
Participant. State Street shall make available to each Participant such
arrangements as are necessary for the payment of benefits in accordance with
applicable law and with the terms, as applicable, of the ABA Members Plans,
Individually Designed Plans that are Individual Recordkeeping Plans, and the
Trusts. In the case of an Individually Designed Plan that is an Aggregate
Recordkeeping Plan, State Street shall make all payments to the trustee of such
Plan. In accordance with the applicable Service Standards, State Street shall,
subject to Section 11.01, provide each Investor under an Individual
Recordkeeping Plan with a written confirmation of each distribution and any
withdrawal from the assets for which such Investor is responsible.
7.05 Tax Penalties on Distributions. Subject to applicable laws and
------------------------------
regulations, State Street shall inform each Participant at the time of
distribution (or prior to the time of distribution if required by laws or
regulations) of any tax penalties that may apply to such distribution and of any
applicable requirement that distributions commence no later than the dates
specified in the Code. All forms provided by State Street pursuant to Section
5.04 that are necessary to effect such distributions shall include notice that
tax penalties may apply. State Street shall make distributions no later than
the time, and in an amount no less than, required by Section 401(a)(9) of the
Code and any successor provision thereto. To the extent that Equitable or any
other financial institution or third party (other than a Participant, Employer
or Investor) provides information to ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ may rely upon
the information furnished to perform its obligations under this Section. To the
extent that a Participant, Employer or Investor provides information to State
Street, State Street may rely upon the information furnished to perform its
obligations under this Section, unless on its face such information appears to
be incorrect or invalid.
▇.▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ as Payor. (a) Federal Tax Requirements. State
--------------------- ------------------------
Street shall be the "payor" (within the meaning of such term as used in Section
3405 of the Code) of benefits under the Employer Plans and under any other
Individual Recordkeeping Plan except as otherwise provided in this Section. As
payor, State Street shall perform any required withholding of income tax from
distributions and withdrawals. Prior to the distribution of each Participant's
benefits and in accordance with the applicable Service Standards, State Street
shall provide appropriate notice of withholding and any applicable withholding
election forms to such Participant. State Street shall provide to the
Participant copies of any notice required by Section 402(f) of the Code in
connection with the payment of all amounts as to which it is the payor.
Notwithstanding the foregoing, State Street shall not be the payor of benefits
under a Plan to the extent that such benefits are paid by the issuer of an
annuity contract that is purchased by the Trustee in accordance with a
Participant's election pursuant to the applicable Plan. In such event, the
issuer of such annuity contract shall be the payor (within the meaning of the
Code).
-24-
(b) Distribution Procedures. Immediately prior to the time when a
-----------------------
distribution is to be made pursuant to ▇▇▇▇▇▇▇ ▇.▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ shall transfer
the amount thereof to a demand deposit account maintained by State Street for
this purpose. Upon such transfer, the appropriate Trust shall be relieved of,
and State Street shall assume, the liability to pay such distribution. Any
earnings attributable to Trust assets transferred to such account shall accrue
to the benefit of State Street, and in consideration thereof, the fees payable
to State Street pursuant to Section 13.01 shall be reduced by $300,000 per year.
7.07 Account Statements. In accordance with and not in addition to
------------------
the provisions of the Trusts and in accordance with the applicable Service
Standards, State Street shall provide (a) each Participant under an Individual
Recordkeeping Plan with statements of such Participant's account and (b) the
trustee of each Aggregate Recordkeeping Plan with statements of such Plan's
account.
7.08 Forms 5500, Annual Reports and Other Information. State Street
------------------------------------------------
shall provide the following to each Employer, as appropriate, each in accordance
with the applicable Service Standards, provided that, to the extent that
Equitable or any other financial institution or third party (other than an
Employer, Participant or Investor) provides information to ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ may rely on the most recent information so furnished. To the extent that
an Employer, Participant or Investor provides information to ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ may rely on the most recent information so furnished, unless on its face
such information appears to be incorrect or invalid:
(a) a Form 5500, completed to the extent possible with
information available to State Street, for each Employer Plan and for each
Individual Recordkeeping Plan that is required to file a Form 5500;
(b) all of the information available to State Street necessary
to complete a Form 5500 for each Aggregate Recordkeeping Plan that is required
to file a Form 5500;
(c) all schedules required to be filed with a Plan's annual
report, to the extent the schedule or required information is available to
State Street;
(d) a summary plan description for each Employer Plan;
(e) a form of summary annual report; and
(f) instructions and financial information that is available
to State Street to aid each such Employer in filing its Internal Revenue Service
applications and other forms needed by such Employer to assist it in complying
with laws and regulations applicable to the Trusts and the ABA Members Plans.
-25-
7.09 Section 415 Monitoring. In accordance with the applicable
----------------------
Service Standards, State Street shall (a) monitor each Employer Plan's
compliance with Section 415 of the Code based on the employee compensation and
other relevant data supplied to State Street by the Employer, and (b) provide
each Employer that maintains an Individually Designed Plan with the data
available to State Street for purposes of the Employer's monitoring of its
Plan's compliance with Section 415 of the Code. State Street shall timely
request compensation information and other relevant data from those Employers
who have not otherwise provided such information to State Street, and State
Street shall not be required to monitor compliance with Section 415 of the Code
for any Employers who fail to provide such information after such request.
7.10 Section 401(k) and 401(m) Testing. In accordance with the
---------------------------------
applicable Service Standards, State Street shall perform the average deferral
percentage testing required by Section 401(k) of the Code and the average
contribution percentage testing required by Section 401(m) of the Code for each
Individual Recordkeeping Plan that contains a cash or deferred arrangement based
on the employee compensation and other relevant data supplied to it by the
Employer. State Street shall timely request compensation information and other
relevant data from Employers who have not otherwise provided such information
and data, and State Street shall not be required to perform such average
deferral percentage and average contribution percentage testing for any
Employers who fail to provide such information and data after such request.
7.11 Written Communications to Employers and Investors. State Street
-------------------------------------------------
shall, subject to Section 11.01, send written communications to each Employer
and Investor no less frequently than quarterly, including but not limited to
communications containing information (to the extent permitted by applicable
laws and regulations) regarding (a) interest rates and investment performance of
the Investment Options and Closed Options offered or made available by State
Street and, (b) to the extent appropriate, changes in the Program, the ABA
Members Plans or the Trusts. State Street may use such communications to
provide any or all of the statements, forms, procedures and information that may
be required or appropriate to be provided to each Employer and Investor except
communications or information required by Sections 6.07, 7.07, 7.08, 7.09 and
7.10 and the confirmations provided under Sections 6.03 and 7.04.
Notwithstanding the foregoing, such excepted communications or information may
be included in the same package for mailing as any other communication provided
that such inclusion does not result in a delay in sending such excepted
communications or information to the Employers or Investors, as the case may be.
Delivery of such statements, forms, procedures and information shall be made as
required by applicable laws and regulations. ABRA shall be entitled to review
and comment on such communications, statements, forms, procedures and
information to the extent provided in Section 11.02.
7.12 Inquiries and Complaints. In accordance with the applicable
------------------------
Service Standards, State Street shall respond to inquiries and complaints from
Participants, Employers and Investors. State Street shall furnish to ABRA copies
of all written complaints it receives and written descriptions or copies of
State Street's responses thereto. Such copies shall be provided
-26-
as soon as practicable after receipt or response, as the case may be, but no
later than at the next following meeting of the Board.
7.13 Notices and Elections by Participants. No notice or election
-------------------------------------
that a Participant is required to provide to State Street under this Agreement
(excluding any telephonic authorization or direction provided by the Participant
in the capacity of an Investor in accordance with requirements and procedures
established pursuant to Section 6.04, any authorization or direction under
Section 6.05 or as otherwise provided in the applicable Employer Plan) shall be
effective unless submitted to State Street by the Participant's Employer. State
Street may accept such notices and elections directly from the Participant in
those cases where it is impractical or impossible for the Employer to submit
such notices and elections and State Street receives notice of such
impracticality or impossibility from the Participant or the Employer that is
reasonably satisfactory to State Street. Except for telephonic authorizations
or directions described in Section 6.04 or any authorization or direction under
Section 6.05, no notice or election shall be effective until State Street
receives a properly completed form at the address provided to the Employers.
7.14 Address for Communications to Participants. State Street shall
------------------------------------------
mail any communication that it is required to provide to a Participant to such
Participant at the address of such Participant's Employer. After the
Participant or Employer notifies State Street that the Participant is no longer
employed by the Employer and provides State Street with a new address, State
Street shall mail all communications to such new address.
7.15 Year 2000 Compliance. (a) Year ▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------- --------------
represents that:
1. It has developed a detailed, comprehensive and adequate plan
(such plan, as in effect on the date hereof, is herein referred to as the "year
2000 plan," a copy of which will be made available on the premises of State
Street, from time to time, at ABRA's reasonable request to ABRA and its
consultant, to achieve "year 2000 compliance" (as defined below) for all
programs, software and systems used in connection with the Program;
2. It has committed sufficient financial and personnel resources to
complete the year 2000 plan as of the dates set forth herein;
3. State Street knows of no fact, circumstances or reason why the
year 2000 plan will not be successfully implemented in accordance with its terms
and this Agreement.
For purposes of this Section 7.15, "year 2000 compliance" means the capability
to perform all date dependent and date related functions and to record, store,
process and present date information and date dependent information without
error or interruption and with the same degree of timeliness, efficiency and
accuracy as on the date hereof, so that ABRA, the Employers, the Investors and
the Participants can use such information on or after January 1, 2000 in the
same manner as of the date hereof.
-▇▇-
(▇) ▇▇▇▇▇▇▇▇▇▇▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ shall use reasonable and
--------------
comprehensive efforts as are required by its fiduciary duties under ERISA and
are consistent with industry standards to successfully carry out the tasks
described in State Street's year 2000 plan in connection with the Program in
accordance with the time schedule set forth in such plan and this Agreement and
shall make available the financial and personnel resources necessary to do so.
Notwithstanding the foregoing, if State Street shall have an agreement entered
into after March 31, 1998 with any other customer providing for a higher
standard of performance with respect to year 2000 compliance than that set forth
above, such higher standard shall automatically be applicable under this
Agreement.
(c) Reports. At each meeting of the Board occurring between
-------
the date of this Agreement and March 31, ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ shall deliver a
written report confirming the representations contained in paragraphs (a) and
(b) above as of the date of such meeting. Such report shall include sufficient
details so that an independent person familiar with such matters could form a
reasonable judgment regarding the adequacy of the year 2000 plan and State
Street's timely completion thereof.
(d) Consultants. State Street agrees to reimburse ABRA for any
-----------
expenses paid to a consultant to review year 2000 compliance up to but not
exceeding $100,000.
(e) No Effect on Duties. Nothing in this Section 7.15 shall be
-------------------
interpreted as affecting State Street's obligations under other Sections of this
Agreement.
7.16 Plan Administrator. State Street shall not be the plan
------------------
administrator (as defined in Section 3(16) of ERISA) with respect to any Plan.
-28-
ARTICLE VII. MARKETING SERVICES TO BE PROVIDED BY STATE STREET
----------- -------------------------------------------------
8.01 Marketing Requirements. Establishment of Annual Marketing Plan
---------------------- --------------------------------------
and Goals. State Street shall market the Program to Qualified Employers through
---------
the ABRA Program Services Unit, and shall incur direct costs in so doing of not
less than $1,050,000 during each year during the term of this Agreement. No
later than the Board meeting during the third calendar quarter of 1998 and of
each year thereafter until the Transfer Completion Date, State Street shall
deliver to ABRA a proposed Annual Marketing Plan for the next succeeding
calendar year. The proposed Annual Marketing Plan shall be presented in
sufficient detail to enable ABRA to evaluate the level and type of effort to be
expended. Each proposed Annual Marketing Plan shall contain goals for the
number of additional new Plans, net additional Participants and new assets for
the year derived from contributions and conversions less assets associated with
Plans that cease participation in the Program (excluding assets withdrawn from
the Program due to distributions to individual Participants on account of
termination of employment, hardship withdrawal or similar events) to be added to
the Program, provided that such goals shall include an increase of 11,500 net
additional Participants by December 31, 2002 over the number of Participants as
of December 31, 1998. Each proposed Annual Marketing Plan shall contain a
description of the information (including demographic and other data as may be
reasonably requested by ABRA) relied upon and the methodology used by State
Street to develop such plan and goals. ABRA shall review each such proposed
Annual Marketing Plan, and shall be entitled to make recommendations to State
Street regarding such Plan and the various goals set forth therein. ABRA and
State Street shall consult with each other in good faith for the purpose of
agreeing to such Annual Marketing Plan and the goals set forth therein, prior to
the meeting of the Board during the fourth calendar quarter during the year
preceding the year covered by such Annual Marketing Plan. State Street shall
carry out the Annual Marketing Plan as so agreed upon and shall use its best
efforts to achieve the annual goals established thereby.
8.02 Marketing Reports. At each meeting of the Board during 1999 and
-----------------
each calendar year thereafter beginning prior to the Transfer Completion Date,
State Street shall provide to ABRA a written report showing the progress of the
Annual Marketing Plan up to the last day of the preceding calendar quarter. No
later than the meeting of the Board that occurs during the first calendar
quarter of 2000 and each calendar year thereafter prior to the Transfer
Completion Date, State Street shall provide to ABRA a report showing the actual
result of the marketing activities for the preceding calendar year as compared
to the marketing goals for such year as expressed in the Annual Marketing Plan.
8.03 State Bar and Local Endorsement Program. State Street will
---------------------------------------
continue to seek state and local bar endorsements that will provide value to the
Program in light of time and costs associated with obtaining such endorsements
and shall maintain and renew existing endorsements at the time they may
contractually be renewed when the marketing advantages of such relationships
provide a value to the Program in light of the time and costs associated with
maintaining such endorsements.
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ARTICLE IX. MARKETING SUPPORT TO BE PROVIDED BY ABRA
----------- ----------------------------------------
9.01 Endorsement. ABRA shall provide the Program with its
-----------
endorsement at all times during the term of this Agreement.
9.02 Bar Association Meetings. At the request of State Street, ABRA
------------------------
shall, to the extent practicable, use reasonable efforts to arrange for State
Street to appear at such meetings and conventions held by the ABA, its sections
and affiliates as are provided for in the Annual Marketing Plan.
9.03 Workshops and Seminars. At the request of State Street, ABRA
----------------------
shall, subject to applicable laws and regulations, assist State Street in
arranging for State Street to publicize such workshops and seminars as may be
provided for in the Annual Marketing Plan. ABRA shall, subject to applicable
laws and regulations, to the extent practicable, provide volunteer speakers for
such workshops and seminars or assist State Street in finding suitable speakers.
ABRA shall be under no obligation to incur any expense in connection with such
workshops and seminars.
9.04 Introductions. At the request of State Street, ABRA shall
-------------
use reasonable efforts to introduce State Street representatives to (a) officers
and staff members of state and local bar associations and (b) appropriate ABA
officers and staff members.
9.05 Inclusion in ABA Mailings. At the request of State Street, ABRA
-------------------------
shall use reasonable efforts to arrange for ABA membership materials to include
such information about the Program as State Street determines to be appropriate
in accordance with the Annual Marketing Plan. At the request of State Street,
ABRA may request, on behalf of State Street, that the ABA include in mailings to
its members and non-members promotional material prepared by State Street
relating to the Program. State Street may select, subject to the consent of
ABRA and the ABA, the mailings in which such material are to be included.
9.06 Access to ABA Research. At the request of State Street, ABRA
----------------------
shall use reasonable efforts to obtain from the ABA and provide to State Street
any market research conducted by or on behalf of the ABA that the ABA will make
available to ABRA at the lowest price available to ABRA and that would assist
State Street in marketing the Program.
9.07 ABA Membership Lists. At the request of State Street, based on
--------------------
State Street's reasonable specifications, ABRA shall use reasonable efforts to
obtain from the ABA and provide to State Street, at the lowest price available
to ABRA, lists of ABA members to be used by State Street solely for purposes of
marketing the Program.
9.08 ABA Disclaimer. State Street acknowledges that ABRA has no
--------------
control, directly or indirectly, over the ABA and cannot cause the ABA to carry
out any of the activities described in Sections 9.04 through 9.07.
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9.09 Payment of ABRA's Expenses. State Street and ABRA shall pay
--------------------------
from their own funds all expenses incurred by ABRA or State Street, as the case
may be, pursuant to this Article IX.
ARTICLE X. REPORTS TO ABRA
--------- ---------------
10.01 Investment Option Reports. State Street shall provide ABRA
-------------------------
with quarterly reports (including year-to-date information) setting forth (a)
the aggregate account balances in each Investment Option and Closed Option at
the beginning of the calendar quarter, (b) a summary of the aggregate
transactions affecting those account balances during the calendar quarter,
including the aggregate amount contributed and transferred to, and withdrawn and
transferred from, each Investment Option and Closed Option and (c) the aggregate
account balance in each Investment Option and Closed Option at the end of the
calendar quarter. State Street shall provide such other aggregate reports with
respect to the Investment Options as are reasonably requested by ABRA.
10.02 Fee Reports. State Street shall provide ABRA with quarterly
-----------
reports (including year-to-date information) setting forth the fees paid by
Participants, Employers and Investors (including trusts) under the Program
pursuant to Article XIII.
10.03 Trust Participation Reports. State Street shall provide ABRA
---------------------------
with quarterly reports (including year-to-date information) setting forth (a)
the number of Participants, Employers and Plans participating in, and the assets
held thereby, each Trust at the beginning of the calendar year, (b) the number
of Participants, Employers and Plans (and total assets attributable thereto)
that commenced or ceased to participate in each Trust during the period covered
by the report as a result of enrollments, withdrawals, death or retirement, (c)
the number of Participants, Employers and Plans participating in such Trust (and
total assets attributable thereto) at the end of the period covered by the
report, and (d) such other reports with respect to Trust participation as are
reasonably requested by ABRA. State Street will not be required to provide
Participant information with respect to Aggregate Recordkeeping Plans.
10.04 Transfer Reports. State Street shall provide ABRA with
----------------
quarterly reports (including year-to-date information) setting forth the level
of transfer activity pursuant to Section 6.03.
10.05 Service Reports. Quarterly, State Street shall provide ABRA
---------------
with reports setting forth (a) the frequency and nature of technical,
operational and other appropriate assistance provided pursuant to Section 5.05,
(b) the frequency and nature of investment election assistance provided pursuant
to Section 6.06, and (c) such other information as is reasonably necessary for
ABRA to determine the nature and extent of State Street's compliance with the
applicable Service Standards.
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10.06 Expense Reports. Quarterly, State Street shall provide ABRA
---------------
with a report setting forth the amount and a description of the various
categories of expenses assessed or charged pursuant to Section 13.04.
10.07 Annual Reports. State Street shall provide or make available
--------------
to ABRA such annual reports as are required by Section 6.02 of the ABA Members
Collective Trust, Sections 6.06 and 6.07 of the Master Trust and Sections 6.06
and 6.07 of the Pooled Trust.
10.08 Timing of Reports. Unless otherwise provided in this Article,
-----------------
all reports pursuant to this Article shall be delivered within such time frame
as is set forth in the applicable Service Standards.
ARTICLE XI. REVIEW OF COMMUNICATIONS MATERIAL AND COMMUNICATIONS BY ABRA
---------- ------------------------------------------------------------
11.01 Communications Consultant. State Street shall engage a
-------------------------
Communications Consultant who shall prepare, in consultation with State Street,
an annual communications plan which shall include recommendations regarding
forms, performance information, technical bulletins, newsletters and other
similar communication materials for participants and employers. A copy of the
annual communications plan shall be delivered to State Street, with a copy to
ABRA, during the first quarter of each calendar year during the term of this
Agreement or at such other time or times as shall be agreed upon by the parties.
State Street shall consult with ABRA regarding the recommendations contained in
the annual communications plan and State Street shall give full consideration
thereto.
11.02 ABRA's Review of State Street Communication Material. Certain
----------------------------------------------------
communications in connection with the Program, as determined by agreement
between State Street and ABRA from time to time will be furnished, on a timely
basis, by State Street to ABRA for prompt review. Such communications shall
include the Prospectus and, unless otherwise agreed, (a) all items described in
Section 11.01, (b) promotional materials, (c) proposed scripts for any outbound
telemarketing campaign, (d) outlines of programs, workshops or seminars and (e)
the format for any publications. Such review shall be conducted in accordance
with a reasonable schedule specified by State Street or, if none is specified,
within a reasonable period of time. State Street shall, subject to Section
11.01, make all final decisions regarding the form and content of
communications, subject to approval by any applicable regulatory authorities and
giving full consideration to any comments or suggestions made by ABRA in
connection with its review (except that any reference to ABRA or the ABA that is
objectionable to ABRA shall be revised to ABRA's satisfaction or shall not be
included). Within a reasonable period after such communications have been
provided to ABRA, State Street may use, distribute or otherwise make available
such communications at such time as it deems necessary or appropriate, provided
that final copies of such communications shall be provided to ABRA.
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11.03 Communications by ABRA. Subject to applicable laws and
----------------------
regulations, ABRA, as sponsor of the Program and not as an agent of State
Street, shall have the right to communicate with Participants and Employers from
time to time in connection with the Program. State Street shall make available
to ABRA, without cost, for such purpose any mailing list used by State Street
for general communication with Participants and Employers. From time to time
and as is reasonable, State Street shall, at ABRA's request, assist ABRA in
effecting communications pursuant to this Section and not otherwise in conflict
with State Street's responsibilities, duties and obligations under this
Agreement, provided that State Street shall receive reasonable compensation
and/or reimbursement for such services.
ARTICLE XII. ADDITIONAL AGREEMENTS AND COVENANTS OF STATE STREET
----------- ---------------------------------------------------
12.01 ABRA Program Services Unit. (a) State Street has established
--------------------------
and shall, as long as it is obligated to provide services hereunder, maintain
the ABRA Program Services Unit. The ABRA Program Services Unit shall be a
separate client services unit within State Street exclusively dedicated to and
having capabilities sufficient to provide the functions necessary (i) for the
effective and efficient operation of the Program, (ii) to meet the requirements
set forth in the Service Standards, the Annual Marketing Plan and the annual
communications plan described in Section 11.01 and (iii) to otherwise meet State
Street's obligations under this Agreement. As of the Renewal Date, State Street
shall provide ABRA with an annual staffing plan for the ABRA Program Services
Unit. Such plan will be updated and provided to ABRA at least annually at the
first Board meeting following the completion of State Street's internal annual
budget review/approval cycle, but no later than the meeting that occurs in the
third calendar quarter of each year.
The ABRA annual staffing plan shall include the following:
A. An organizational chart for the ABRA Program Services Unit,
displaying the reporting for each job.
B. State Street shall provide to ABRA an annual human resources
report that will include the number of current staff, job descriptions,
training programs, turnover rates, recruiting activities and similar information
related to personnel matters for the ABRA Program Services Unit.
(b) The expenses incurred by State Street for the ABRA Program
Services Unit shall not be charged to the Trusts or the ABA Members Collective
Trust.
12.02 Financial Condition and Organization. As promptly as
------------------------------------
practicable after such information either becomes legally available for
dissemination or is released to the public, State Street shall notify ABRA of
any change or pending change to the ownership, legal structure or organization
of State Street or any Affiliate or division thereof that provides any services
to or in connection with the Program.
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12.03 Insurance Certification. State Street shall provide to ABRA
-----------------------
within thirty (30) days of the Renewal Date a certificate of coverage with
respect to all insurance policies (including fiduciary and errors and omissions)
of State Street that could reasonably cover or relate to the Trusts, the ABA
Members Collective Trust or the Program, and will notify ABRA of any changes in
such coverage within thirty (30) days after the earlier of when the change is
made or when it becomes effective. From time to time ABRA may reasonably
request that State Street provide a copy of the applicable insurance policy.
State Street, its officers, directors and employees are exempt from the fidelity
bond requirements of Section 412 of ERISA, and nothing in this Agreement shall
be construed to require State Street to maintain such a fidelity bond for
itself, its officers, directors or employees.
12.04 Approval of Major Vendors. Within a reasonable period of time,
-------------------------
not less than fifteen (15) Business Days, prior to the hiring of a Major Vendor,
State Street shall submit to ABRA for ABRA's approval a summary of the proposed
terms for the hiring of such Major Vendor; provided, however, that if ABRA does
not approve such Major Vendor or the proposed terms of the arrangement, State
Street may engage such Major Vendor to provide services for the benefit of any
other client of State Street regardless of whether such Major Vendor will
continue to be available to provide services to the Program on the proposed
terms. The terms of State Street's contracts with Major Vendors shall be
consistent with State Street's responsibilities, duties and obligations under,
and not in conflict with the terms and conditions of, this Agreement, the Trusts
and the ABA Members Collective Trust, including, without limitation, Section
12.07. State Street shall provide to ABRA copies of such contracts when
executed. Notwithstanding the foregoing, ABRA's approval under this Section
shall not be required for the renewal or reengagement of a Major Vendor
previously approved by ABRA, provided that the terms of such renewal or
reengagement (other than fees) are not materially different than those
previously approved by ABRA.
12.05 Indemnification of ABRA by Major Vendors. State Street shall
----------------------------------------
use its best efforts to obtain from Major Vendors engaged primarily for the
benefit of the Program indemnification of the Indemnified Persons (as defined in
Section 14.04) for any act or omission of such Major Vendors, with provisions
similar to the provisions of Article XIV.
12.06 Non-Competition. During the term of this Agreement or any
---------------
successor agreement hereto and for two years following the Transfer Completion
Date, State Street shall not either directly or indirectly, alone or with
others, knowingly interfere with ABRA's relationships with Qualified Employers
including, but not limited to, contacting past, present or prospective Employers
for the purpose of offering them competing or alternative investment
opportunities as part of a marketing effort focused primarily on a sector of or
the entire legal community. ABRA hereby acknowledges that State Street is
currently and may in the future be engaged in marketing activities involving
competing or alternative investment opportunities for qualified retirement plans
of the type maintained under the Program that may reach sectors of the legal
community in a coincidental manner and that such activities are not prohibited
by this Section. This Section shall survive termination of this Agreement.
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12.07 Confidentiality. Except as provided below, State Street shall
---------------
hold in strict confidence all Program Data and Records and shall use such
Program Data and Records only to perform its obligations under this Agreement
and to fulfill its obligations in connection with the Program. State Street
acknowledges that State Street has no right or title in or to (including without
limitation copyright rights in) the Program Data and Records and collections or
compilations of such Program Data and Records. To the extent State Street would
have any right or title in or to the Program Data and Records and collections or
compilations of such Program Data and Records, it hereby assigns to ABRA all of
such rights (including without limitation copyright rights). State Street may
disclose Program Data and Records as necessary for State Street to perform its
obligations under this Agreement, but wherever possible, State Street shall
disclose Program Data and Records only to ABRA, individuals within the State
Street organization and third parties engaged by State Street who have a need to
know such information in order for State Street to perform its obligations under
this Agreement and to fulfill its obligations in connection with the Program;
provided, however, that State Street shall use its best efforts to cause third
parties who have access to Program Data and Records to enter into a
confidentiality agreement with respect to such Program Data and Records. State
Street acknowledges that the foregoing obligations include the obligation of
State Street not to reveal (a) any such Program Data and Records regarding
individual Participants, Employers or Investors or (b) any Program Data or
Records that could be used directly or indirectly to identify an individual
Participant, Employer or Investor except when the Participant, Employer or
Investor so requests. The foregoing obligations shall not apply to any of the
following: (w) information rightfully known to State Street, without continuing
restrictions on disclosure, prior to being supplied to State Street as part of
the Program Data and Records, (x) information that is or becomes generally known
to the public or in the trade other than through a failure on the part of State
Street to observe its obligations hereunder, (y) information that is
independently developed or rightfully obtained without continuing restrictions
on disclosures from third parties by State street otherwise than under the
Program or (z) information that State Street must disclose to comply with
federal or state statutory or regulatory requirements or pursuant to a judicial
or administrative order; provided that State Street shall consult with ABRA
prior to making any such disclosure to the extent possible and shall provide
ABRA reasonable notice to enable ABRA to resist any disclosure pursuant to
12.07(z). This Section shall survive termination of this Agreement. If
requested by ABRA, State Street shall include a copyright notice or other
proprietary rights legend on all human and machine readable copies of the
Program Data and Records, including any electronic data files containing the
Program Data and Records and the media for such data files. The form and
content of any such notice or legend shall be determined by ABRA.
12.08 Copyright of Trusts and ABA Members Plans. State Street shall
-----------------------------------------
not interfere with or otherwise impede ABRA's efforts to protect the Trusts and
the ABA Members Plans by copyright and State Street shall not infringe on any
such copyrights. State Street shall have the right and license to reproduce and
distribute the Trusts and ABA Members Plans to the extent necessary or
appropriate in connection with the performance of its duties under this
Agreement. If requested by ABRA, State Street shall include a copyright notice
or other proprietary rights legend on all human and machine readable copies of
the Trust and ABA
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Member Plans, including any electronic data files containing the Trust and ABA
Members Plans and the media for such data files. The form and content of any
such notice or legend shall be determined by ABRA.
12.09 Maintenance and Disposition of Program Data and Records. For
-------------------------------------------------------
one year following the Transfer Completion Date, State Street shall maintain one
copy of all Program Data and Records that are maintained electronically on
magnetic tape for the last accounting period for which State Street was
responsible under this Agreement and that are Participant, Plan, Employer or
Investor records. At the end of such one year period, to the extent permitted
by applicable law and the customary practices of State Street with respect to
such matters, State Street shall destroy all copies of Program Data and Records
in its possession and control, unless ABRA and State Street shall otherwise
agree in writing. This Section shall survive termination of the Agreement.
Prior to any such destruction, State Street shall provide to ABRA a copy of any
such Program Data and Records to be destroyed by State Street. The copy shall
be in electronic or such other form as may be reasonably requested by ABRA;
provided, however, that ABRA shall pay the reasonable expenses associated with
-------- -------
making such copy if the format requested is not the standard format in which
State Street maintains such Program Data and Records. Upon request by ABRA,
State Street shall provide a description or samples of such standard format.
12.10 Rights to Software Following Termination. Following any
----------------------------------------
termination of this Agreement, State Street shall provide ABRA with access to
computer software used in connection with the Program as follows:
(a) Subject to Section 12.10(e), State Street shall actively
cooperate with and assist ABRA in obtaining licenses for software systems used
in connection with the Program from outside vendors from whom State Street has
licensed such software (including but not limited to Dyatron Omni Plan DPR and
National FSI Plus System Software); provided, however, that any costs in
connection with such action incurred by State Street shall be reimbursed by ABRA
or any successor trustee or successor recordkeeper for the Program.
(b) In accordance with this Section, State Street shall
grant to ABRA, without charge, a perpetual, non-exclusive, non-transferable
license to use State Street Software solely in connection with the
administration of the Program. Such State Street Software shall be provided in
object code form only. Upon ABRA's written request in accordance with Section
15.05, State Street and ABRA shall negotiate the terms of such license generally
on the terms set forth in this Section:
(i) such license may not be assigned to any third
party, but may be sublicensed by ABRA to a third party
exclusively for use in connection with the administration of
the Program, provided that such third party shall enter into
a written agreement (which is reasonably satisfactory to
State Street) for the benefit of State Street, pursuant to
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which such party agrees to the terms and conditions
substantially as set forth in this Section in connection
with its use of the State Street Software;
(ii) any State Street Software licensed pursuant to
this Section shall be licensed on an "AS IS" basis;
(iii) State Street shall make no warranties, express
or implied, including warranties of merchantability and
fitness for a particular purpose with respect to such State
Street Software;
(iv) State Street shall not be liable for any damages,
including incidental or consequential damages, arising out
of the use and performance of such State Street Software
other than those portions of such damages resulting from
State Street's intentional wrongdoing, and except to the
extent provided in clause (v) hereof;
(v) State Street shall make no representations and
shall provide no indemnification regarding infringement of
patents, copyrights, trademarks, trade secrets or other
proprietary rights except that State Street shall indemnify
ABRA against any liability to third parties resulting from
any infringement of such rights of which State Street has
actual knowledge; provided that State Street shall receive
both prompt notice of any claim of such infringement and the
opportunity to assume and continue the defense of any such
claim at its own expense, and shall not be liable under any
settlement agreement entered into without its prior written
consent and provided, further, that ABRA acknowledges that
the provisions of Article XIV do not apply with respect to
any indemnification pursuant to this Section;
(vi) ABRA shall acknowledge that, except for the
license pursuant to this Section, ABRA has no right or title
in or to any proprietary rights (including without
limitation copyright rights) in such State Street Software
or any of its component parts and ABRA shall further
acknowledge that all State Street Software is proprietary to
State Street; and
(vii) ABRA shall agree not to sell, transfer,
disclose, display or otherwise make available such State
Street Software or any copies (other than a reasonable
number of copies for back-up and archival purposes only) or
portions thereof to any person without the prior written
consent of State Street and not to use such State Street
Software, or permit its use by any person, for any purpose
other than in connection with the administration of the
Program. State Street and ABRA may negotiate a
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reasonable fee payable to State Street and may agree that
State Street will provide to ABRA in connection with such
State Street Software maintenance, additional support, and
any subsequent enhancements that State Street develops and
makes generally available to its clients for whom such State
Street Software is used.
(c) In connection with any State Street Software licensed
pursuant to Section 12.10(b), State Street shall agree to provide to ABRA copies
of all operator and user manuals and training materials then in existence for
use in conjunction with such State Street Software. ABRA shall agree not to
sell, transfer, disclose, display or otherwise make available such operator and
user manuals and training materials to any person except in connection with a
sublicense granted pursuant to Section 12.10(b)(i).
(d) ABRA acknowledges that it has no rights to State Street's
systems that are not developed, acquired, used or enhanced in connection with
the Program, including, but not limited to, the asset custody reporting and
accounting systems and securities clearance systems and any enhancements to such
systems (without regard to whether such enhancements were developed for the
purposes of the Program), whether developed by State Street or licensed or
acquired from third parties and whether existing at the time of execution of
this Agreement or at any time thereafter.
(e) Following any termination of this Agreement, State Street
shall grant to ABRA, subject to payment of the royalty fee described below, a
perpetual, non-exclusive, non-transferrable license to use such modification and
enhancements to the State Street Software created by State Street after the
Renewal Date and the terms of such license shall include the terms and
conditions of subsection 12.10(b)(i)-(vii); provided that such license will
contain a reasonable royalty fee payable to State Street, which shall be reduced
in proportion to the percentage of total development costs for such State Street
Software that have been amortized by State Street during the term of this
Agreement.
12.11 Investment Advisor Agreements. State Street shall provide ABRA
-----------------------------
with copies of all (a) Investment Advisor Agreements, (b) notices required under
the Investment Advisor Agreements, and (c) reports required under the Investment
Advisor Agreements.
12.12 No Directed Brokerage. In selecting brokers or dealers for the
---------------------
execution of transactions effected directly for the Funds, State Street shall
not consider the availability and value of research that may be provided to
State Street by such broker or dealer. The ability to direct brokerage when
research may be provided to any Investment Advisor or State Street shall be
negotiated by State Street and ABRA with respect to any New Investment Option
offered or managed by State Street.
12.13 Notice of Change in Status or Regulatory Action. Subject to
-----------------------------------------------
applicable laws and regulations, State Street shall promptly notify ABRA of (a)
any change in its status as a bank, (b) any notice by any governmental agency of
the intent to place material limitation on the
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activities of State Street that relate to or affect the Program, or (c) the
receipt of formal notice of the commencement of any proceedings by any
governmental agency to take any action that would change State Street's status
or the status of the Program under the Investment Company Act of 1940, as
amended. State Street shall notify ABRA of such information as soon as such
information is available for public disclosure.
12.14 Performance by Affiliates. The parties acknowledge that State
-------------------------
Street may cause one or more of its Affiliates, including State Street Global
Advisors to perform services in satisfaction of State Street's obligations under
this Agreement. State Street hereby guarantees the performance of such
Affiliates and shall be liable therefor to the same extent as if State Street
had directly performed such obligations. State Street further agrees, and it
shall take any and all action as shall be necessary to require, that any
obligation imposed on it hereunder shall also be assumed by any Affiliate it
designates to perform any activity hereunder, and to the extent of such
designation, ABRA shall have the same rights with respect to such Affiliate as
ABRA has with respect to State Street. In furtherance thereof, but not as a
limitation, State Street agrees each such Affiliate shall be subject to, and
that it shall take any and all action as shall be necessary to cause each such
Affiliate to be subject to all the provisions of this Article XII and Sections
14.04, 14.05, 14.06, 14.07, 14.10, 16.06, 16.08 and 16.09, as if such Affiliate
were a party to this Agreement.
ARTICLE XII. FEES AND EXPENSES
----------- -----------------
13.01 State Street's Fees. State Street shall be compensated under
-------------------
the Program by payment of the program expense fee and the trust, management and
administration fee in accordance with the terms contained in Appendix C hereto,
----------
which fees as of the Renewal Date shall relate only to the Investment Options
and Closed Options, services and obligations of State Street under this
Agreement as of the Renewal Date. The program expense fee shall be in
consideration of State Street's recordkeeping, administration, enrollment,
marketing, client retention and similar services required hereunder. The trust
management and administration fee shall be in consideration of State Street's
fiduciary (including investment management), trustee, custodial and similar
services rendered hereunder. Appendix C shall set forth all of the fees payable
----------
to State Street in connection with the Program as of the Renewal Date and no
provision of the ABA Members Collective Trust or the Trusts shall entitle State
Street to additional compensation. Nothing in this Section shall preclude the
payment of expenses of the Program or Plans to the extent permitted by Section
13.04.
13.02 ABRA's Fees. ABRA shall be compensated under the Program in
-----------
accordance with the terms contained in Appendix D hereto, which fees as of the
----------
Renewal Date shall relate only to the Investment Options and Closed Options,
services and obligations of ABRA under the Employer Plans and under this
Agreement as of the Renewal Date. The fee schedule set forth in Appendix D may
----------
be increased only by written notification of such increase to all Employers, and
shall not be effective less than 60 days after such notification.
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13.03 Additional Services. State Street's obligations to perform
-------------------
services not required or agreed to under this Agreement shall be conditioned on
ABRA's agreement to allow State Street to charge a reasonable fee for such
services. If the cost to State Street to provide additional services is minimal
both individually and in the aggregate (from the Renewal Date through the date
such services are contemplated) then State Street shall be deemed to have waived
its right to an additional reasonable fee pursuant to this Section. If ABRA and
State Street are unable to reach agreement under this Section within ninety (90)
days of commencing negotiations, they shall submit the fee for such services to
arbitration in accordance with Section 16.10 and State Street shall provide such
services, pending the results of arbitration, for the last fee it proposed for
such services prior to submitting to arbitration, subject to retroactive
adjustments based upon the fee as determined by arbitration.
13.04 Expenses. (a) General. Expenses of operation of the Program,
-------- -------
the Plans, the Trusts and the ABA Members Collective Trust, as are permitted by
applicable laws and regulations and this Agreement, shall be charged to and paid
from the assets of the Trusts or the ABA Members Collective Trust (and charged
to each Investment Option, Closed Option, Participant or Plan account, as
applicable), for which such expenses are incurred. Except as otherwise provided
in this Agreement, such expenses shall include but are not limited to (i)
brokers' fees and commissions, (ii) transfer and other taxes, (iii) custodians'
fees (including without limitation custodians' fees paid to State Street and its
Affiliates, to the extent permitted by applicable law, including without
limitation, the prohibitions of Part 4 of Title I of ERISA), (iv) Securities and
Exchange Commission fees, (v) state securities registration fees, (vi) Internal
Revenue Service user fees, (vii) fees and expenses paid pursuant to any
Investment Advisor Agreement or any Investment Manager Agreement, (viii) fees
paid to a consultant engaged pursuant to the first sentence of Section 4.03,
(ix) other reasonable independent legal, independent auditing, printing and
mailing expenses incurred in the preparation of Securities and Exchange
Commission and state securities filings, no-action letters or reports , (x)
printing and mailing costs incurred in connection with providing the Prospectus
and related materials to Investors and prospective Investors who have
communicated indications of interest in the Program, and (xi) expenses as
permitted under Section 14.10. To the extent that State Street pays any expenses
with respect to a particular Investment Option, Closed Option, Participant
account or Plan account which are properly chargeable pursuant to this Section
to a Trust or the ABA Members Collective Trust, as the case may be, it shall be
entitled to reimbursement therefrom.
(b) Budgets. Not later than the meeting of the Board held in
-------
the fourth quarter of the preceding year, State Street shall present ABRA a
detailed budget of each of the categories of expenses, including without
limitation, the categories listed in subsection (a) above, to be charged to the
ABA Members Collective Trust or the Trusts for the next calendar year. At each
meeting of the Board during such calendar year, State Street shall deliver a
status report listing the categories of expense and expenses incurred to date as
compared to such budget. ABRA may make comments and recommendations with respect
to such budgets and status reports, and State Street shall give full
consideration thereto. Any item of expense properly chargeable to the Trusts or
the ABA Members Collective Trust under Section 13.04 may be so charged even if
State Street fails to include an item of expense in such Budget or if such
expense items exceed such budget; provided that, such expenses are approved by
ABRA in accordance with Section 13.04(d) below.
-40-
(c) Amortization Schedules. If State Street shall determine
----------------------
that any expenses otherwise chargeable to the ABA Members Collective Trust or
the Trusts are to be amortized over a period of months or years, State Street
shall prior to the commencement of such amortization provide to ABRA a detailed
schedule of such expenses, the period of amortization and the reasons therefor.
ABRA may make comments and suggestions with respect to the need for and the
structure of any such amortization schedule, and State Street shall give full
consideration thereto. If an unknown item of expense or an adjustment of any
expense is uncovered after such amortization schedule has been approved by ABRA,
then State Street shall provide ABRA with a detailed schedule of such expenses
and adjustments and the period of amortization and the reasons therefor.
(d) Approval of Certain Expenses. State Street shall not
----------------------------
charge any item of expense in excess of $10,000 against the Trusts or the ABA
Members Collective Trust not described in clauses (i) through (vii) of Section
13.04 (a) above (or seek reimbursement thereof) without providing to ABRA
written notice thereof setting forth a description of such expense and the
reason State Street believes such expense should be paid by the Trusts or the
ABA Members Collective Trust, as the case may be, unless such expense is
included in and not in excess of the appropriate amount budgeted pursuant to
Section 13.04 (b) above. If ABRA and State Street shall be unable to agree
regarding the propriety or amount of any such expense to be charged to the ABA
Members Collective Trust or the Trusts, as the case may be, ABRA and State
Street shall submit the issue to arbitration in accordance with Section 16.10.
(e) Certain Expenses not Chargeable. For purposes of this
-------------------------------
Section 13.04, expenses of operation of the Program, the Plans, the Trusts and
the ABA Members Collective Trust shall not include (a) marketing expenditures
incurred pursuant to Article VIII, (b) the fees charged and expenses incurred by
any Communications Consultant or (c) salaries, fringe benefits, taxes and
overhead attributable to the ABRA Program Services Unit or other personnel or
operations of State Street or its Affiliates, or travel expenses of any such
personnel.
ARTICLE XIV. LIMITATION OF LIABILITY AND INDEMNIFICATION
----------- -------------------------------------------
14.01 Limitation of Liability for Instructions from Participants,
-----------------------------------------------------------
Employers or Investors. Except as otherwise provided by laws or regulations,
----------------------
neither ABRA nor State Street (in each of its various capacities under the
Program) shall be liable for any act or omission made in accordance with its
obligations under this Agreement, the ABA Members Collective Trust, the ABA
Members Plans or the Trusts to the extent that such act or omission was made in
good faith, without negligence, and in accordance with an instruction or
information provided by a Participant, Employer or Investor, where the party in
question had no reason to believe that such instruction or such information was
unauthorized or incorrect.
-41-
14.02 Limitation of Liability For Instructions From ABRA. Except as
--------------------------------------------------
otherwise provided by laws or regulations, State Street (in each of its various
capacities under the Program) shall not be liable to ABRA (or other Indemnified
Persons) for any act or omission made in good faith, without negligence, and in
accordance with the express advance written approval or instructions of ABRA
under this Agreement (including any approval or instructions with respect to an
Investment Manager that has not been recommended by, and is not, ▇▇▇▇▇ ▇▇▇▇▇▇).
▇▇.▇▇ ▇▇▇▇▇▇▇▇▇▇ of Liability for Acts of Third Parties. Except as
-------------------------------------------------
otherwise provided by laws or regulations, neither ABRA nor State Street (in
each of its various capacities under the Program) shall be liable for any act or
omission of any person or entity (other than an affiliate of ABRA, in the case
of ABRA, or an Affiliate, in the case of State Street), that acts or has acted
as a fiduciary or service provider to a Plan, a Trust or the ABA Members
Collective Trust pursuant to delegation of fiduciary responsibility under such
Plan or trust, this Agreement or the Investment Manager Agreements. State
Street shall not be liable for any act or omission of Equitable.
14.04 Indemnification. State Street agrees to defend, indemnify and
---------------
hold harmless ABRA, its then-present and former officers, directors, advisory
directors, employees, the ABA, and its then present and former officers, and the
Board of Governors (the "Indemnified Persons") against any and all expenses
(including attorneys' fees, subject to Section 14.05), judgments, fines,
penalties (including any civil penalties assessed under Section 502(1) of ERISA)
and amounts paid in settlement, actually and reasonably incurred in connection
with any threatened, pending or current action, suit, proceeding or claim,
whether civil, criminal, administrative or otherwise, and the amount of any
adverse judgment entered against any of them and reasonable expenses attendant
thereto by reason of any of State Street's acts or omissions in connection with
the Program, subject to the limitations of Sections 14.01, 14.02 and 14.03. For
the above defense, indemnity and hold harmless provision to apply (a) the
Indemnified Persons shall inform State Street promptly of any claims threatened
or made against any Indemnified Person, (b) the Indemnified Persons shall
cooperate fully with State Street in responding to such threatened or actual
claims, and (c) any settlement agreement shall require the written approval of
State Street, which consent shall not be unreasonably withheld or delayed. This
Section shall survive termination of this Agreement.
14.05 Counsel for Indemnified Persons. State Street agrees to
-------------------------------
cooperate fully with the Indemnified Persons in responding to any threatened or
actual claims. Each Indemnified Person shall have the right to employ counsel
in its, his or her sole discretion. However, none of State Street, the Trusts
nor the ABA Members Collective Trust shall be liable (a) for any legal or other
expenses incurred in connection with any such threatened, pending or current
actions, suit, proceeding or claim (whether civil, criminal, administrative or
otherwise), or defense to any of the foregoing, that were not specifically
authorized by State Street or (b) for reasonable attorneys' fees for the
Indemnified Persons unless State Street shall have received a written opinion
reasonably acceptable in form and substance to State Street of counsel
reasonably acceptable to State Street (and which counsel shall not represent or
otherwise be affiliated with any of the Indemnified Persons) that there exists a
material conflict of interest
-42-
either (y) between such (i) Indemnified Persons and (ii) State Street or (z)
among such Indemnified Persons, each in the conduct of the response to a
threatened claim or in the conduct of the defense of an actual claim in which
event State Street shall be liable for the reasonable legal expenses of each
counsel whose appointment is necessary to resolve such conflict; provided,
however, that if any threatened, pending or current actions, suit, proceeding or
claim, or defense to any of the foregoing, is civil in nature, State Street, the
Trusts and the ABA Members Trusts, collectively, shall not be responsible for
the reasonable attorneys' fees with respect to more than one (1) counsel for all
Indemnified Persons, collectively.
14.06 Contribution. In order to provide for just and equitable
------------
contribution in circumstances in which the terms of Section 14.04 are
applicable, but the indemnification provided for therein is held for any reason
to be unavailable or unenforceable, the Indemnified Persons shall contribute to
the aggregate expenses (including attorneys' fees, subject to Section 14.05),
judgments, fines, penalties (including any civil penalties assessed under
Section 502(l) of ERISA) and amounts paid in settlement, actually and reasonably
incurred in connection with any threatened, pending or current action, suit,
proceeding or claim, whether civil, criminal, administrative or otherwise, which
such Indemnified Persons and State Street may be subject to or liable for in the
following proportions: the Indemnified Persons collectively shall contribute
one-one thousandth of one percent (0.001%) of such losses, claims, damages,
expenses and liabilities, and State Street shall contribute the balance thereof.
State Street shall have no other right of contribution from any of the
Indemnified Persons.
14.07 Enforcement of Rights. If an Indemnified Person is reasonably
---------------------
required to bring any action to enforce rights or collect monies due under this
Article and is successful in such action, State Street shall reimburse such
Indemnified Person or its subrogee for reasonable fees (including attorneys'
fees in accordance with Section 14.05) and expenses incurred in bringing and
pursuing such action.
14.08 Supplemental Indemnification. Indemnification pursuant to this
----------------------------
Article is intended to be supplemental to any other rights to indemnification
available to the Indemnified Persons. Nothing herein shall be deemed to
diminish or otherwise restrict the Indemnified Persons' rights to
indemnification under applicable laws.
14.09 Interests of ABA Members Collective Trust, Trusts and ABA
---------------------------------------------------------
Members Plans. In accordance with the ABA Members Collective Trust and the
-------------
Trusts, State Street shall, whenever in its judgment any interest of the Program
so requires, acting on behalf of the ABA Members Collective Trust or the Trusts,
(a) settle, compromise, abandon or submit to arbitration any claim or demand, or
(b) commence or defend any suit or legal proceeding. State Street shall
represent the ABA Members Collective Trust and the Trusts in any arbitration,
suit or legal proceeding in any court or before any other body or tribunal.
ABRA, as sponsor of the ABA Members Plans, shall represent the ABA Members Plans
in any arbitration, suit or legal proceeding in any court or before any other
body or tribunal; provided, however, that if State Street, the Trusts or the ABA
Members Collective Trust is also involved in such arbitration, suit, or legal
proceeding, State Street shall control the arbitration, suit or legal proceeding
on behalf of
-43-
the Program (except to the extent provided in 14.04 and 14.05), including but
not limited to selecting counsel, determining the appropriate litigation
strategy, and determining (to the extent possible) the forum for such
arbitration, suit or proceeding, provided that State Street shall from time to
time (not less than quarterly) inform ABRA of the progress of such litigation
and ABRA shall have the right to make suggestions and comments regarding State
Street's control of such litigation.
14.10 Payment of Expenses. Expenses (including attorneys' fees)
-------------------
specifically authorized by State Street pursuant to Section 14.05 and actually
and reasonably incurred by the Indemnified Persons in defending against or
responding to such threatened or actual claims shall be paid by State Street as
they are incurred. State Street may charge such expenses and any expenses
pursuant to Section 14.09, each to the extent appropriate, as expenses of the
Trusts and the ABA Members Collective Trust (to the extent provided in Section
13.04); provided however, that State Street may do so only (a) if the gravamen
of the action, suit, proceeding or claim is principally the result of State
Street, the Program, the Trusts, the Plans or the Collective Trust being a
stakeholder or (b) in any other case in which a gravamen of the complaint is not
an alleged breach of this Agreement or duty by State Street; provided, further,
that to the extent appropriate, such expenses shall be charged to the particular
Plan or affected Participant's account involved in the action, suit, proceeding
or claim. Notwithstanding the foregoing, expenses resulting from any
threatened, pending or current action, suit, proceeding or claim, or defense to
any of the foregoing, relating principally to an act or omission of Equitable,
to the extent that they are not covered by and paid under the Administrative
Services Agreement between Equitable and ABRA dated October 4, 1985, shall be
charged as expenses of the Trusts and the ABA Collective Trust.
-44-
ARTICLE XV. TERMINATION OF AGREEMENT
---------- ------------------------
15.01 Termination by ▇▇▇▇▇ ▇▇▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ may not terminate
---------------------------
this Agreement prior to the close of business on December 31, 2002, except that
State Street may terminate this Agreement for Cause at any time, upon six (6)
months prior delivery of a Notice of Termination, which Notice may be delivered
only at or after the end of any correction or cure period provided in Section
15.02. State Street may terminate this Agreement effective at the end of any
quarter after the close of business on or after December 31, 2002 by delivering
Notice of Termination to ABRA at least twelve (12) months prior to the Date of
Termination specified therein.
15.02 Termination For Cause. The following behavior shall constitute
---------------------
Cause under this Agreement:
(a) the offering directly or indirectly to Qualified
Employers by ABRA of any investment product that is not offered pursuant to the
terms of this Agreement and is marketed for use in qualified retirement plans;
or
(b) the offering directly or indirectly to Qualified
Employers by the ABA or its agents (other than any plan offered to employees of
the ABA) of any investment product that is not offered pursuant to the terms of
this Agreement and is marketed principally for use in qualified retirement
plans, if within sixty (60) days of the date on which ABRA becomes aware of such
offering or a proposal to commence such offering, the ABA or its agents or
affiliates have not ceased such offering or ABRA has not reached an agreement
with State Street as to the conduct of the offering; provided that if ABRA or
State Street becomes aware of such an offering or proposal, it shall give prompt
written notice to the other and ABRA shall be deemed aware of such offering on
the date on which it gives or receives such notice, as applicable; or
(c) the removal of State Street as Trustee or other material
change in the rights, responsibilities or obligations of State Street as
Trustee, except if such removal or change is the result of ABRA's exercise of
its rights in accordance with Section 4.02; or
(d) any material violation of this Agreement or the Trusts
that ABRA fails, within thirty (30) days of receipt of written notice thereof
from State Street to correct, or as to which ABRA fails to reach a written
agreement with State Street, as to an appropriate time frame for correction or
other resolution and which is not corrected or otherwise resolved within such
appropriate time frame.
15.03 Termination by ABRA. ABRA may terminate this Agreement at any
-------------------
time by delivery to State Street of a Notice of Termination at least six (6)
months prior to the Date of Termination specified therein.
-45-
15.04 Consent to Termination. All Participants, Investors and
----------------------
Employers shall be deemed to have consented to such termination and shall have
no right to withhold such consent.
15.05 Notice of Termination. If ABRA terminates this Agreement, its
---------------------
Notice of Termination shall specify (a) whether an Extension Period is required,
(b) the length of any such Extension Period and (c) whether ABRA is requesting
to commence negotiations for a license to State Street Software pursuant to
Section 12.10(b). If State Street terminates this Agreement, ABRA may require
an Extension Period by furnishing State Street, within forty-five (45) days
following ABRA's receipt of State Street's Notice of Termination, with a written
notice specifying the length of any such Extension Period. ABRA may request to
commence negotiations for a license to State Street Software pursuant to Section
12.10(b) by furnishing State Street with written notice of such request either
within thirty (30) days following ABRA's receipt of State Street's Notice of
Termination or as part of ABRA's Notice of Termination, as applicable. After
any such Notice of Termination is given, regardless of whether an Extension
Period is required, State Street shall continue to provide all services
(including marketing services as described in the then-current Annual Marketing
Plan) under this Agreement through the Transfer Completion Date.
15.06 Extension Period. Any Extension Period shall be a sufficient
----------------
period of time after the Date of Termination to permit an orderly transfer of
its responsibilities to a successor recordkeeper and successor Trustee, which
Extension Period shall not exceed one (1) year from the Date of Termination,
unless ABRA and State Street otherwise agree in writing. If an Extension Period
is required pursuant to Section 15.05, the Transfer Completion Date shall be the
end of such Extension Period. State Street shall continue to serve as Trustee
during the Extension Period, and all fees and expenses shall continue to be paid
as in effect immediately prior to the Extension Period.
15.07 Conversion. No later than the Transfer Completion Date, State
----------
Street shall provide ABRA with Program Data and Records pursuant to Section
15.08. ABRA may require that, from the date Notice of Termination is given
until the Transfer Completion Date, State Street cooperate with a successor
recordkeeper and assist in such recordkeeper's development and implementation of
a conversion program by furnishing such assistance as is reasonably necessary
for the development and implementation of a conversion program, provided that
State Street shall receive reasonable compensation for such services. In any
event, State Street shall not be responsible or liable for the development or
implementation of a conversion program or the results of any attempt to develop
or implement a conversion program, whether or not successful.
15.08 Transfer to Successor Recordkeeper and Trustee. After the date
----------------------------------------------
Notice of Termination is given and as promptly as practicable after State Street
receives a written request from ABRA and no later than the Transfer Completion
Date, State Street shall provide to a successor recordkeeper and successor
Trustee, (a) two (2) copies of all Program Data and
-46-
Records maintained electronically on magnetic tape and established and
maintained pursuant to this Agreement in their then-current form and (b) the
then-current Program Data and Records. Such Program Data and Records shall be
timely and accurate and shall be provided in the format and layout used by State
Street, with complete and accurate descriptions and explanations of the fields,
formats and layouts of the computerized Program Data and Records.
15.09 Transfer of Program Assets. State Street shall arrange for the
--------------------------
transfer, no later than the Transfer Completion Date, of the assets of the
Trusts and, to the extent applicable, the ABA Members Collective Trust in
accordance with the terms of the Trusts, the ABA Members Collective Trust and
the ABA Members Plans to any person permissible under applicable laws and
regulations and designated in writing by ABRA.
ARTICLE XVI. MISCELLANEOUS
----------- -------------
16.01 Service Standards. State Street shall perform each and every of
-----------------
its duties and responsibilities hereunder in accordance with the highest
standard of care applicable to persons performing services of the type required
hereunder and shall always apply the best practices reasonably available to it
when carrying out such duties and responsibilities. State Street and ABRA shall
identify certain of the services to be performed by State Street pursuant to
this Agreement, the performance of which shall be governed by the Service
Standards set forth on Appendix A and incorporated as part of this Agreement as
----------
the Service Standards. From time to time, State Street and ABRA may agree in
writing to amend the Service Standards. If State Street shall in any agreement
with another client of comparable size (as measured by assets or number of
participants) agree to comply with a higher standard of performance than that
required by Appendix A, State Street shall promptly notify ABRA of such event
and Appendix A shall be deemed to have been automatically amended to include
such higher standard of performance.
16.02 Plan Disqualification. If it is determined that a Plan does not
---------------------
meet the requirements for qualification under the Code, State Street may
withdraw from the Funds any or all amounts attributable to that Plan and pay
such amounts as required by the Plans and Trusts and in accordance with
applicable law.
16.03 Agents of ABRA. With respect to any provision of this
--------------
Agreement, but subject to applicable laws and regulations, the Board may
designate in writing to State Street one or more authorized representatives to
act on behalf of ABRA, in which case State Street shall be entitled to
communicate with such representatives, until such time as ABRA provides written
notice to the contrary, and actions by such representatives shall be binding on
all parties.
16.04 Good Faith. Both ABRA and State Street shall have an obligation
----------
to consent, respond, agree, provide notice, give and consider comments or
recommendations, negotiate, approve, cooperate and otherwise act in good faith
and on a reasonably timely basis with respect to each provision of this
Agreement, the ABA Members Collective Trust and the
-47-
Trusts. Even if not expressly stated herein, no consent, approval or endorsement
of ABRA or State Street under this Agreement shall be unreasonably withheld or
delayed.
16.05 Compliance with Laws. State Street shall comply, shall cause
--------------------
the ABA Members Collective Trust and the Trusts to comply and shall cooperate in
assisting ABRA and any other person or entity providing such services in
complying, with all applicable employee benefit, securities, banking and
insurance laws and regulations. ABRA shall comply, shall cause the ABA Members
Plans and the Trusts to comply and shall cooperate in assisting State Street and
any other person or entity providing such services in complying, with all
applicable employee benefit, securities, banking and insurance laws and
regulations, including without limitation by providing any information
reasonably available to ABRA that is reasonably requested by State Street and by
assisting State Street in obtaining such other information as may be reasonably
requested by State Street, each in connection with action taken by State Street
under this Agreement or to obtain any opinion letter, ruling, no-action letter
or interpretive request filed with or requested from the Internal Revenue
Service, the Department of Labor, the Securities and Exchange Commission or any
similar state securities regulatory authority.
16.06 Audits. As sponsor of the ABA Members Plans and on behalf of
------
Participants, Employers and Investors, ABRA may, for the purpose of providing
assurance that State Street is fulfilling its obligations under this Agreement,
the ABA Members Collective Trust and the Trusts, at any time and from time to
time, audit (either by itself or through auditors it may appoint), the
facilities, operations and Plan records of State Street that relate to State
Street's fulfillment of its duties, responsibilities and obligations under this
Agreement, the ABA Members Collective Trust and the Trusts. State Street shall
cooperate with ABRA or auditors appointed by ABRA for such purpose. The cost of
such audit shall be paid from ABRA's own funds unless such audit discloses an
error in Program accounting or records that requires an adjustment to
Participants' accounts, a change in State Street's internal accounting
procedures or discloses State Street's failure to comply with Service Standards,
in which case State Street shall pay such cost. Nothing in this Section shall
give ABRA the right to a financial audit of State Street.
16.07 Amendment. This Agreement and Section 6.08 of the ABA Members
---------
Collective Trust may be amended only by a written instrument executed by ABRA
and State Street. All Participants, Employers and Investors shall be deemed to
have consented to any such amendment and shall have no right to withhold such
consent.
16.08 Assignment. Neither ABRA nor State Street may assign its rights
----------
or obligations under this Agreement, any Investment Advisor Agreement or any
Investment Manager Agreement without the other's prior written consent. For
purposes of this Section, a merger, reorganization or transfer of substantially
all of the assets of ABRA to a successor organization shall not constitute an
"assignment" of this Agreement, but (i) a merger, consolidation or
reorganization of State Street or the transfer of substantially all its assets
to a successor organization, shall constitute an "assignment" of this Agreement,
unless State Street is the survivor in any such transaction and after such
transaction, State Street is controlled by State
-48-
Street Corporation, (ii) a merger, consolidation or reorganization of State
Street Corporation or the transfer of substantially all its assets to a
successor organization shall constitute an "assignment" of this Agreement unless
State Street Corporation is the survivor in any such transaction and it is not
controlled by another organization and (iii) any spin-off, split-up or other
corporate separation pursuant to which State Street is no longer controlled by
State Street Corporation shall constitute an "assignment" of this Agreement.
16.09 Choice of Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of Illinois applicable to agreements to
be performed in that state; provided however, that (a) the ABA Members
Collective Trust and the Trusts shall be governed by and construed in accordance
with the applicable laws of The Commonwealth of Massachusetts, (b) the ABA
Members Plans shall be governed by and construed in accordance with the
applicable laws of the State of Illinois and (c) in the event of a conflict of
laws in any dispute between (i) this Agreement and (ii) any of the ABA Members
Collective Trust, the Trusts or the ABA Members Plans, the laws of The
Commonwealth of Massachusetts shall govern (without regard to choice of law
principles thereunder).
16.10 Arbitration of Disputes. Any dispute or controversy between ABRA
-----------------------
and State Street arising under, out of, or in connection with or in relation to
this Agreement (whether or not arising under provisions specifically referring
to this Section), the ABA Members Collective Trust, the Trusts or the ABA
Members Plans, and any amendments thereof, other than any such dispute or
controversy arising in connection with any third party claim, or the breach
thereof, shall be determined and settled by arbitration to be held in a location
agreeable to State Street and ABRA (or, if no location is agreed upon, in
Chicago, Illinois) in accordance with the rules then in effect for commercial
disputes according to the commercial rules of the American Arbitration
Association; provided, however, that in the discretion of the arbitrator,
hearings may be held at such locations as are convenient for the witnesses. In
connection with any such arbitration, if State Street and ABRA are unable to
agree on a single arbitrator, then State Street and ABRA shall each appoint one
arbitrator and the two arbitrators so appointed shall appoint a third
arbitrator. If either State Street or ABRA fails to appoint an arbitrator, or
if the two arbitrators fail to appoint a third arbitrator, then the American
Arbitration Association (or a similar organization agreeable to ABRA and State
Street) shall appoint such arbitrator or arbitrators. Any award rendered by
such arbitration or arbitrators may include an assessment of expenses (including
attorneys' fees and arbitration fees) and shall be conclusive and binding on
each and all of the parties, and judgment may be entered thereon by a court of
competent jurisdiction. Nothing herein shall preclude either party from
obtaining injunctive relief in appropriate circumstances, provided that after
any grant of such relief, the dispute shall be resolved in accordance with the
procedures set forth in this Section.
-49-
16.11 Notice. All notices, requests or other communications to be
------
given by ABRA or State Street to the other under this Agreement shall be
considered properly given if (a) delivered in person, (b) delivered by overnight
courier (with signed acknowledgment or receipt) or (c) sent by telecopier,
confirmed by telephone by the sender, each at the following address:
State Street Bank and Trust Company
Batterymarch Park III
Three ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ABRA Department Head
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
American Bar Retirement Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Executive Director
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
or mailed by first-class United States mail, postage prepaid, registered or
certified with return receipt requested to ABRA at the above address or to State
Street at the following address:
State Street Bank and Trust Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ABRA Department Head
All notices, requests or communications shall be deemed given (y) upon the
expiration of five (5) Business Days after deposit if mailed or (z) upon receipt
by the addressee if given in person, by courier or by telecopier. If any
communication is tendered to a party and the delivery thereof is refused by such
party, such communication shall be effective upon the tender. Either State
Street or ABRA may change the address to which notices are to be delivered by
written notice to the other party as provided in this Section. All notices,
accountings, reports and other communications by State Street to Participants,
Employers and Investors shall be delivered in accordance with and otherwise
governed by the applicable provisions of the Trusts and the ABA Members
Collective Trust.
16.12 Severability of Provisions. If any provision of this Agreement
--------------------------
is found to be unenforceable, the other provisions shall remain in effect.
16.13 Waiver. Any agreement by ABRA or State Street to an extension
------
or waiver of any provision of this Agreement shall be valid only if set forth in
an instrument in writing signed by such party, but such waiver or failure to
insist on strict compliance with such
-50-
provision shall not operate as a waiver or estoppel with respect to any
subsequent or other failure.
16.14 Captions. The captions or headings in this Agreement are for
--------
convenience only and in no way define, limit or describe the scope or intent of
any provisions or sections of this Agreement.
16.15 Action by ABRA. Any action required or permitted to be taken
--------------
hereunder by ABRA may be taken by resolution of the Board, by resolution of any
duly authorized committee of, or appointed by the Board or by any officer or
agent duly authorized to take such action by the Board or such a committee.
16.16 Construction of Terms. The singular may include the plural and
---------------------
vice versa, unless the context clearly indicates to the contrary. Unless
otherwise stated, all references to Sections and Articles are to Sections and
Articles of this Agreement.
16.17 Execution in Counterparts. This Agreement may be executed in
-------------------------
counterparts, and all the counterparts together shall be considered an original.
16.18 Entire Agreement. This Agreement (including the Appendices
----------------
hereto and the Annual Marketing Plan), together with the Trusts and the ABA
Members Collective Trust and, to the extent applicable, the ABA Members Plans,
contains the entire agreement between the parties, and supersedes all prior
agreements, arrangements and understandings between State Street and ABRA,
relating to the subject matter contained herein.
16.19 Authority. The parties to this Agreement represent,
---------
respectively, that they have duly authorized the execution, delivery and
performance of this Agreement and that neither such execution and delivery nor
the performance of their obligations hereunder conflict with or violate any
provision of law, rule or regulation, or any instrument to which either is a
party or to which any of their respective properties are subject and that this
Agreement is a valid and binding obligation.
-51-
IN WITNESS WHEREOF, this Agreement has been signed on behalf of each
of the parties hereto on this _______________ day of November, 1998 with an
effective date as of January 1, 1999 (except to the extent the parties are
obligated hereunder to take any action prior to such date).
STATE STREET BANK AND TRUST COMPANY
By:
-------------------------------------
Title:
----------------------------------
THE AMERICAN BAR RETIREMENT ASSOCIATION
By:
-------------------------------------
President
-52-
APPENDIX A
----------
SERVICE STANDARDS
-----------------
The standards of accuracy that govern all of the services performed by State
Street under this Agreement are as follows:
TIME-BASED
ACTIVITY/FUNCTION STANDARDS
--------------------------------------------------------------------------------
FINANCIAL
TRANSACTIONS - All financial transactions wherever
------------ occurring in the Program shall be
processed at the times required by this
Agreement and without error caused by
State Street for no less than 99% of
all financial transactions processed.
"Financial transactions" means
transactions resulting in contributions
to the Program, participant loans (and
repayments thereof), change of
investment allocations, and transfers
of assets among Investment Options.
ADMINISTRATIVE
INFORMATION - Indicative and related data (such as
----------- names, dates and addresses) shall be
maintained without error caused by
State Street for no less than 99% of
all Participant records unless such
information has not been provided to
State Street.
TIME
REQUIREMENTS - All transactions shall be processed in
------------ accordance with the Service
Standards for timeliness and
responsiveness provided
below.
-53-
APPENDIX A
----------
TIME-BASED
ACTIVITY/FUNCTION STANDARDS
--------------------------------------------------------------------------------
TRANSACTION PROCESSING - All transaction requests including for
---------------------- example, posting of contributions,
allocation of contributions, and
transfers among Investment Options will
be date/time stamped at time of
receipt.
- Transaction requests that are received in
writing or by telephone (under the Program's
telephone transfer feature) or by internet
(under the internet service to be established
for the Program) by 4:00 p.m. Eastern Time on
a Business Day will be processed utilizing
unit values and related information determined
at the close of business that day, provided
that properly completed forms required for
such transactions, if any, are received before
4:00 p.m. Eastern Time. Transaction requests
received after 4:00 p.m. Eastern Time will be
processed in the same manner on the next
Business Day.
TRANSACTION CONFIRMATION NOTICE - Upon completion of the financial
------------------------------- transaction processing, a confirmation
notice will be mailed to affected
Participant/Employer within 3
Business Days following execution.
- In the event of a major market event (e.g.
market crash of 1987) confirmation notices
will be sent 10 Business Days following
execution until trading volumes return to
average level for the 90 day period prior to
the event.
-54-
APPENDIX A
----------
TIME-BASED
ACTIVITY/FUNCTION STANDARDS
--------------------------------------------------------------------------------
PARTICIPANT STATEMENTS - Cumulative reporting of all account
---------------------- activities for the quarter will be
mailed to affected Participants/Employers
within 15 Business Days following the end
of each calendar quarter. However, when
settlement Friday is within 3 Business
Days of a calendar quarter month end,
Participant Statements will be mailed to
affected Participants/Employers within 20
Business Days following the end of such
quarter.
DISBURSEMENTS - Properly completed and documented
------------- requests for all types of Participant
benefit payments, received before 4:00
p.m. Eastern Time on a Business Day
including the following:
o Death.
o Disability.
o Retirement.
o Termination of Employment.
o Installments.
o In-service distributions under Article
XI of the ABA Members Retirement Plan.
o Plan termination.
will be processed and checks mailed within
three Business Days after receipt.
-55-
APPENDIX A
----------
ACTIVITY/FUNCTION TIME-BASED
STANDARDS
--------------------------------------------------------------------------------
- In the case of Qualified Domestic
Relations Orders ("QDRO's") this standard
will apply only after the QDRO has been
established on the recordkeeping system.
- The above guidelines do not apply to
transactions in connection with
Individually Designed Plans, initial
annuity payments, Real Estate Fund and
the Self-Managed Account.
SUMMARY PLAN DESCRIPTIONS - A Summary Plan Description will be
------------------------- provided to each Employer to be
distributed to eligible Employees (i)
within 90 days after the Employer
adopts a Plan, and (ii) thereafter,
within the time required by law. A
Summary of Material Modifications
will be provided to each Employer
within the time required by law.
ANNUAL PLAN SUMMARY - Sent to Employers and Participants
------------------- within 90 days following end of
Plan Year.
FORMS 5500 - Census Data Request to gather
---------- information necessary for the
automated preparation of the 5500
Form Series sent to Employers no
later than the first day of the
fourth month following end of Plan
Year.
- State Street will make at least one
follow-up request for census data from
Employers not responding within 30 days.
-56-
APPENDIX A
----------
ACTIVITY/FUNCTION TIME-BASED
STANDARDS
--------------------------------------------------------------------------------
- State Street's response will be based up
on census data returned to State Street
by the Employer within 30 days. If census
data is not returned, State Street's
response will be based on the census data
contained in the Census Data Request.
- Production and distribution of Form 5500
in appropriate format and with applicable
schedules with completed form (based on
information that is maintained by State
Street) returned to the Employer by the
1st day of the 6th month following end of
Plan Year.
DISCRIMINATION TESTING
----------------------
(401(k) & 401(m)) - ADP/ACP testing will be performed
----------------- semi-annually, and the year-end
testing will be completed and
provided to the Employer no later
than 2 1/2 months following the plan
year end subject to the Employer's
submission of complete and accurate
data 20 Business Days prior to such
date. Any such testing otherwise
requested by an Employer will be
completed and results returned to
Employer ten (10) Business Days after
receipt of completed request form.
Each Employer will be limited to a
total of 3 tests per year including
semi-annual tests.
-57-
APPENDIX A
----------
ACTIVITY/FUNCTION TIME-BASED
STANDARDS
--------------------------------------------------------------------------------
DISCRIMINATION TESTING
----------------------
SECTION ▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇▇ will monitor compliance
------------ with IRC 415 during each plan's
limitation year and will take such
steps as allowed for under the plan
document to ensure compliance with
IRC 415 within the time frame allowed
for under the Plan and the
regulations issued under IRC 415.
- For Employers which maintain plans
in addition to plans sponsored under the
ABRA Program, State Street will provide
such information as may be reasonably
requested by such Employer to maintain
compliance with IRC 415.
COMMUNICATIONS
--------------
- Correspondence - All correspondence date/time
stamped upon receipt
o from Participants/Employers - Acknowledged or answered within 3
Business Days of receipt: if only
acknowledged, then answered within
10 Business Days of receipt.
o from non-Participants
Program inquiries - Acknowledged or answered same
day received if before 4:00 p.m.
Eastern Time, otherwise next
Business Day.
o Other - Acknowledged or answered within 3
Business Days of receipt.
- Telephone
o Participants/Employers - Inquiries answered on telephone if
possible; requests for information
handled same day if received before
4:00 p.m. Eastern Time; otherwise
next Business Day.
-58-
APPENDIX A
----------
ACTIVITY/FUNCTION TIME-BASED
STANDARDS
--------------------------------------------------------------------------------
o Non-Participants - Inquiries answered on telephone if
possible; requests for information
handled same day if received before
4:00 p.m. Eastern Time otherwise, next
Business Day.
During normal business period telephone calls to staffed lines answered within
five rings either personally or by automated hold/queue system (with appropriate
hold background). Call abandon rate will be under 3% of calls placed.
STANDARDS COMPLIANCE PROCEDURE:
------------------------------
In the event that a standard established for a function, activity or service is
not met for a calendar quarter, ABRA shall be promptly notified. ABRA may
request the activation of an internal State Street quality standards task force
if compliance is not restored by the end of the second consecutive quarter.
The task force, if activated, will review all work procedures and processes in
the functional area which is below standard, and develop a comprehensive
analysis of the deficiencies causing the failure to meet standards, along with
suggested corrective actions. The task force review and report will be
completed no later than 90 days after ABRA requests activation.
ABRA reserves the right at the end of the quarter following the task force
review to convene its own task force for the purpose of reviewing the below-
standards service or activity process or to otherwise conduct an independent
audit as provided in Section 16.06. Activating its own task force will not
prevent ABRA from pursuing other remedies.
Compliance with all the standards indicated is to be measured and reported upon
to ABRA at each regular meeting of the Board in a separate Standards Compliance
Report.
Where actual data are available for the full universe of activity, the actual
data will be measured. Otherwise, each quarter State Street shall evaluate a
random 2% sample of each transaction type to determine whether performance has
satisfied such standards and present the results to ABRA at least quarterly.
Samples of actual output from the respective activity/functions reviewed for
compliance with the respective timeliness standards shall also be examined for
financial and administrative accuracy.
-59-
APPENDIX A
----------
ACTIVITY/FUNCTION TIME-BASED
STANDARDS
--------------------------------------------------------------------------------
State Street will not be deemed to have committed an error hereunder to the
extent that it acts in reliance on information furnished by, or at proper
direction of, ABRA, or an Employer,
Participant or Investor, as applicable. Nor will State Street be deemed to have
committed an error hereunder to the extent that it relies on information
furnished by Equitable, any financial institution or third party.
Additionally, at least annually State Street shall engage a professional
consulting firm experienced in conducting surveys with respect to financial
products to conduct a comprehensive, professional client service survey. The
content of such survey shall be subject to review by ABRA. The results of the
survey, among other considerations, will be evaluated by ABRA and State Street
in the fourth quarter of each year. Such survey information will not be
considered in measuring performance against the above-stated standards except
the Participation Satisfaction Standard.
In the event of any major employee benefit or tax reform legislation (similar in
scope and impact to the Tax Reform Act of 1986) during the term of this
Agreement, these standards will be reevaluated).
-▇▇-
▇▇▇▇▇▇▇▇ ▇
----------
STATE STREET GLOBAL ADVISORS INVESTMENT OPTION STANDARDS
STANDARD
--------------------------------------------------------------------------------
STABLE ASSET RETURN FUND The primary investment objective of
------------------------ the portfolio is to meet or exceed
net of investment management fees and
over reasonable measurement periods,
the rate of return of the EK&A STIF
Funds Index plus 0.50 percentage points
(50 basis points).
INDEX EQUITY FUND The primary investment objective of
----------------- the portfolio is to track over
reasonable measurement periods, the
rate of return of the ▇▇▇▇▇▇▇ 3000
Stock Index.
-▇▇-
▇▇▇▇▇▇▇▇ ▇
----------
FEES PAID TO STATE STREET
I. PROGRAM EXPENSE:
---------------
(a) For the first year of the contract (January 1, 1999 through December 31,
1999), the program expense fee shall be $7,750,000.
(b) The program expense fee for each calendar month during calendar year 2000
and each calendar year thereafter during the term of this Agreement shall be
one-twelfth (1/12) of the sum of (i) $1,050,000, plus (ii) the number of
Participants of Individual Recordkeeping Plans (in categories described below,
but not including active participants without account balances) as of the last
Business Day of the immediately preceding calendar month multiplied by $191,
plus (iii) the excess, if any, of the number of active Participants of
Individual Recordkeeping Plans without account balances as of the end of the
last Business Day of the immediately preceding calendar month over the number of
such Participants as of December 31, 1998, multiplied by $191.
Participants: Active, with balance
Active, without balance
Ineligible, with balance
Suspended, with balance
Receiving installment payments
Terminated, deferring payout
Terminated, being paid out (with balance)
(c) As of the first day of each calendar month, State Street shall convert the
amount of the Program Expense Fee payable for such month into a daily asset
charge. Such daily charge shall be accrued each day as a charge against all
Program assets other than those held under Self-Managed Option accounts. Such
accrued daily charges shall be paid to State Street at the end of each month.
Notwithstanding the foregoing, if as of the end of any calendar year during the
term of this Agreement, the aggregate assets held under Self-Managed Option
accounts, expressed as a percentage of total Program assets (including those
held under Self-Managed Option accounts) shall increase by four percentage
points or more over such percentage determined as of the end of the preceding
year or exceed 20% of such aggregate Program assets, and the Program expense
charge (expressed as a percentage of assets) shall have increased during such
period, State Street and ABRA shall negotiate in good faith to determine whether
such increase in the assets held by the Self-Managed Option accounts should
affect the appropriateness of the allocation of the Program Expense Fee for the
succeeding years of this Agreement.
-62-
APPENDIX C
----------
FEES PAID TO STATE STREET
II. TRUST, MANAGEMENT AND ADMINISTRATION:
------------------------------------
The trust, management and administration fee shall be calculated according to
the following schedule as applied to the aggregate value of assets held in
Stable Asset Return, Growth Equity, Aggressive Equity, Balanced, Value Equity,
International Equity, Index Equity and Intermediate Bond Funds.
First $1.0 billion .15%
Next $1.8 billion .058%
Over $2.8 billion .025%
Such fee shall accrue daily and paid to State Street at the end of each month.
-▇▇-
▇▇▇▇▇▇▇▇ ▇
----------
FEES PAID TO ABRA
ABRA's fee shall be calculated according to the following schedule based on
the aggregate value of assets held in the Program as of the end of the last
Business Day of the preceding month.
First $500 Million .075%
Next $850 Million .065%
Next $1.15 Billion .035%
Next $1.5 Billion .025%
Over $4.0 Billion .015%
Fees will be charged pro rata against all Program assets other than those held
--------
under Self-Managed Option accounts and paid to ABRA within 10 Business Days
following the end of each month.
-64-