Exhibit (k)(ii)
ADMINISTRATION AGREEMENT
Agreement dated as of April __, 2004, by and between State
Street Bank and Trust Company, a Massachusetts trust company (the
"Administrator"), and Lazard Global Total Return and Income Fund, Inc., a
Maryland corporation (the "Fund").
WHEREAS, the Fund is registered as a closed-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Fund desires to retain the Administrator to
furnish certain administrative services to the Fund, and the Administrator is
willing to furnish such services on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto agree as follows:
1. APPOINTMENT OF ADMINISTRATOR
The Fund hereby appoints the Administrator to act as
administrator with respect to the Fund for the purpose of providing certain
administrative services for the period and on the terms set forth in this
Agreement. The Administrator accepts such appointment and agrees to render the
services stated herein.
2. DELIVERY OF DOCUMENTS
The Fund will promptly deliver to the Administrator copies of
each of the following documents and all future amendments and supplements, if
any:
a. The Fund's Articles of Incorporation and by-laws;
b. The Fund's currently effective registration statement
under the Securities Act of 1933, as amended (the "1933
Act"), and the 1940 Act and the Fund's prospectus(es)
and statement(s) of additional information and all
amendments and supplements thereto as in effect from
time to time;
c. Certified copies of the resolutions of the Board of
Directors of the Fund (the "Board") authorizing (1) this
Agreement and (2) certain individuals on behalf of the
Fund to (a) give instructions to the Administrator
pursuant to this Agreement and (b) sign checks and pay
expenses;
d. A copy of the investment advisory agreement between the
Fund and its investment adviser; and
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e. Such other certificates, documents or opinions which the
Administrator may, in its reasonable discretion, deem
necessary or appropriate in the proper performance of
its duties.
3. REPRESENTATIONS AND WARRANTIES OF THE ADMINISTRATOR
The Administrator represents and warrants to the Fund that:
a. It is a Massachusetts trust company, duly organized and
existing under the laws of the Commonwealth of
Massachusetts;
b. It has the corporate power and authority to carry on its
business in the Commonwealth of Massachusetts;
c. All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement;
d. No legal or administrative proceedings have been
instituted or threatened which would impair the
Administrator's ability to perform its duties and
obligations under this Agreement; and
e. Its entrance into this Agreement shall not cause a
material breach or be in material conflict with any
other agreement or obligation of the Administrator or
any law or regulation applicable to it.
4. REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to the Administrator that:
a. It is a corporation, duly organized, existing and in
good standing under the laws of the State of Maryland;
b. It has the corporate power and authority under
applicable laws and by its organizing documents to enter
into and perform this Agreement;
c. All requisite proceedings have been taken to authorize
it to enter into and perform this Agreement;
d. The Fund is an investment company properly registered
under the 1940 Act;
e. The Fund has filed a registration statement under the
1933 Act and the 1940 Act and it will be effective and
remain effective during the term of this Agreement;
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f. All necessary filings under the securities laws of the
states in which the Fund offers or sells its shares have
been made;
g. No legal or administrative proceedings have been
instituted or threatened which would impair the Fund's
ability to perform its duties and obligations under this
Agreement;
h. Its entrance into this Agreement will not cause a
material breach or be in material conflict with any
other agreement or obligation of the Fund or any law or
regulation applicable to it; and
i. As of the close of business on the date of this
Agreement, the Fund is authorized to issue shares of
common stock.
5. ADMINISTRATION SERVICES
The Administrator shall provide the following services, in
each case subject to the control, supervision and direction of the Fund and the
review and comment by the auditors and legal counsel for the Fund and in
accordance with procedures which may be established from time to time between
the Fund and the Administrator:
a. Oversee the maintenance by the Fund's custodian of
certain books and records of the Fund as required under
Rule 31a-1(b) of the 1940 Act;
b. Prepare the Fund's federal, state and local income tax
returns for review by the Fund's independent accountants
and filing by the Fund's treasurer;
c. Review, calculate, submit for approval by officers of
the Fund and arrange for payment of the Fund's expenses;
d. Prepare for review and approval by officers of the Fund
financial information for the Fund's semi-annual and
annual reports, proxy statements and other
communications with shareholders and arrange for the
printing and dissemination of such reports and
communications with shareholders;
e. Prepare for review by an officer of and legal counsel
for the Fund, the Fund's periodic financial reports
required to be filed with the Securities and Exchange
Commission ("SEC") on Form N-SAR and Form N-Q, financial
information required by Form N-2, and such other
reports, forms or filings as may be mutually agreed
upon;
f. Prepare reports relating to the business and affairs of
the Fund as may be mutually agreed upon and not
otherwise prepared by the Fund's investment advisers,
custodian, legal counsel or independent accountants;
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g. Oversee and review calculations of fees paid to the
Fund's investment adviser, custodian and transfer agent;
h. Consult with the Fund's officers, independent
accountants, legal counsel, custodian and transfer agent
in establishing the accounting policies of the Fund;
i. Respond to or refer to the Fund's officers or transfer
agent, shareholder inquiries relating to the Fund;
j. Provide periodic testing of the Fund's portfolio to
assist the Fund's investment adviser in complying with
Internal Revenue Code mandatory qualification
requirements, the requirements of the 1940 Act and Fund
prospectus limitations as may be mutually agreed upon;
and
k. Review implementation by the Fund of any dividend
reinvestment programs authorized by the Board.
The Administrator shall provide the office facilities and the personnel required
by it to perform the services contemplated herein.
6. FEES; EXPENSES; EXPENSE REIMBURSEMENT
The Administrator shall receive from the Fund such
compensation for the Administrator's services provided pursuant to this
Agreement as may be agreed to from time to time in a written fee schedule
approved by the parties and initially set forth in the Fee Schedule to this
Agreement. The fees are accrued daily and billed monthly and shall be due and
payable upon receipt of the invoice. Upon the termination of this Agreement
before the end of any month, the fee for the part of the month before such
termination shall be prorated according to the proportion which such part bears
to the full monthly period and shall be payable upon the date of termination of
this Agreement. In addition, the Fund shall reimburse the Administrator for its
reasonable out-of-pocket costs incurred in connection with this Agreement.
The Fund agrees promptly to reimburse the Administrator for
any equipment and supplies specially ordered by or for the exclusive use of the
Fund through the Administrator and for any other expenses not contemplated by
this Agreement that the Administrator may incur on the Fund's behalf at the
Fund's request or with the Fund's consent.
The Fund will bear all expenses that are incurred in its
operation and not specifically assumed by the Administrator. Expenses to be
borne by the Fund, include, but are not limited to: organizational expenses;
cost of services of independent accountants and outside legal and tax counsel
(including such counsel's review of the Fund's registration statement, proxy
materials, federal and state tax qualification as a regulated investment company
and any other reports and materials prepared by the Administrator under this
Agreement); cost of any services contracted for by the Fund directly from
parties other than the Administrator; cost of trading
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operations and brokerage fees, commissions and transfer taxes in connection with
the purchase and sale of securities for the Fund; investment advisory fees;
taxes, insurance premiums and other fees and expenses applicable to the Fund's
operation; costs incidental to any meetings of shareholders including, but not
limited to, legal and accounting fees, proxy filing fees and the costs of
preparation, printing and mailing of any proxy materials; costs incidental to
Board meetings, including fees and expenses of Board members; the salary and
expenses of any officer, director or employee of the Fund; costs incidental to
the preparation, printing and distribution of the Fund's registration statements
and any amendments thereto and shareholder reports; cost of typesetting and
printing of prospectuses; cost of preparation and filing of the Fund's tax
returns, Form N-2 and Form N-SAR, and all notices, registrations and amendments
associated with applicable federal and state tax and securities laws; all
applicable registration fees and filing fees required under federal and state
securities laws; fidelity bond and directors' and officers' liability insurance;
and cost of independent pricing services used in computing the Fund's net asset
value.
The Administrator is authorized to and may employ or associate with
such person or persons as the Administrator may deem desirable to assist it in
performing its duties under this Agreement; provided, however, that the
compensation of such person or persons shall be paid by the Administrator and
that the Administrator shall be as fully responsible to the Fund for the acts
and omissions of any such person or persons as it is for its own acts and
omissions.
7. INSTRUCTIONS AND ADVICE
At any time, the Administrator may apply to any officer of the
Fund for instructions and may consult with its own legal counsel or outside
counsel for the Fund or the independent accountants for the Fund at the expense
of the Fund, with respect to any matter arising in connection with the services
to be performed by the Administrator under this Agreement. The Administrator
shall not be liable, and shall be indemnified by the Fund, for any action taken
or omitted by it in good faith in reliance upon any such instructions or advice
or upon any paper or document reasonably believed by it to be genuine and to
have been signed by the proper person or persons. The Administrator shall not be
held to have notice of any change of authority of any person until receipt of
written notice thereof from the Fund. Nothing in this paragraph shall be
construed as imposing upon the Administrator any obligation to seek such
instructions or advice, or to act in accordance with such advice when received.
8. LIMITATION OF LIABILITY AND INDEMNIFICATION
The Administrator shall be responsible for the performance of
only such duties as are set forth in this Agreement and, except as otherwise
provided under Section 6, shall have no responsibility for the actions or
activities of any other party, including other service providers. The
Administrator shall have no liability for any error of judgment or mistake of
law or for any loss or damage resulting from the performance or nonperformance
of its duties hereunder unless solely caused by or resulting from the negligence
or willful misconduct of the Administrator, its officers or employees. The
Administrator shall not be liable for consequential damages under any provision
of this Agreement or for any consequential damages arising out of any act or
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failure to act hereunder. In any event, the Administrator's liability under this
Agreement shall be limited to its total annual compensation earned with respect
to the Fund and fees payable hereunder during the preceding eighteen months for
any liability or loss suffered by the Fund including, but not limited to, any
liability relating to qualification of the Fund as a regulated investment
company or any liability relating to the Fund's compliance with any federal or
state tax or securities statute, regulation or ruling.
The Administrator shall not be responsible or liable for any
failure or delay in performance of its obligations under this Agreement arising
out of or caused, directly or indirectly, by circumstances beyond its control,
including without limitation, work stoppage, power or other mechanical failure,
computer virus, natural disaster, governmental action or communication
disruption.
The Fund shall indemnify and hold the Administrator harmless
from all loss, cost, damage and expense, including reasonable fees and expenses
for counsel, incurred by the Administrator resulting from any claim, demand,
action or suit in connection with the Administrator's acceptance of this
Agreement, any action or omission by it in the performance of its duties
hereunder, or as a result of acting upon any instructions reasonably believed by
it to have been duly authorized by the Fund, provided that this indemnification
shall not apply to actions or omissions of the Administrator, its officers or
employees in cases of its or their own negligence or willful misconduct.
The Fund will be entitled to participate in its own defense,
or, if it so elects, to assume the defense of any suit brought to enforce any
liability subject to the indemnification provided above. In the event the Fund
elects to assume the defense of any such suit and retain counsel, the
Administrator or any of its affiliated persons, named as defendant or defendants
in the suit, may retain additional counsel but shall bear the fees and expenses
of such counsel unless (i) the Fund shall have specifically authorized the
retaining of such counsel or (ii) the Administrator shall have determined in
good faith that the retention of such counsel is required as a result of a
conflict of interest.
The indemnification contained herein shall survive the
termination of this Agreement.
9. CONFIDENTIALITY
The Administrator agrees that, except as otherwise required by
law or in connection with any required disclosure to a banking or other
regulatory authority, it will keep confidential all records and information in
its possession relating to the Fund or its shareholders or shareholder accounts
and will not disclose the same to any person except at the request or with the
written consent of the Fund.
10. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS; RECORDS
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The Fund assumes full responsibility for complying with all
securities, tax, commodities and other laws, rules and regulations applicable to
it provided, however, that the foregoing does not limit the Administrator's
responsibility to the Fund for the performance of its duties under this
Agreement as determined in accordance with Section 8 of this Agreement.
In compliance with the requirements of Rule 31a-3 under the
1940 Act, the Administrator agrees that all records which it maintains for the
Fund shall at all times remain the property of the Fund, shall be readily
accessible during normal business hours, and shall be promptly surrendered upon
the termination of the Agreement or otherwise on written request. The
Administrator further agrees that all records which it maintains for the Fund
pursuant to Rule 31a-1 under the 1940 Act will be preserved for the periods
prescribed by Rule 31a-2 under the 1940 Act unless any such records are earlier
surrendered as provided above. Records shall be surrendered in usable
machine-readable form.
11. SERVICES NOT EXCLUSIVE
The services of the Administrator to the Fund are not to be
deemed exclusive, and the Administrator shall be free to render similar services
to others. The Administrator shall be deemed to be an independent contractor and
shall, unless otherwise expressly provided herein or authorized by the Fund from
time to time, have no authority to act or represent the Fund in any way or
otherwise be deemed an agent of the Fund.
12. TERM, TERMINATION AND AMENDMENT
This Agreement shall become effective as of the date of its
execution and shall remain in full force and effect for a period of one year
from the effective date, and shall automatically renew thereafter for periods of
one year unless terminated in writing by either party at the end of such period
or thereafter on sixty (60) days' prior written notice. Upon termination of this
Agreement, the Fund shall pay to the Administrator such compensation and any
reimbursable expenses as may be due under the terms hereof as of the date of
such termination, including reasonable out-of-pocket expenses associated with
such termination. This Agreement may be modified or amended from time to time by
mutual written agreement of the parties hereto.
13. NOTICES
Any notice or other communication authorized or required by
this Agreement to be given to either party shall be in writing and deemed to
have been given when delivered in person or by confirmed facsimile, or posted by
certified mail, return receipt requested, to the following address (or such
other address as a party may specify by written notice to the other): if to the
Fund: Lazard Global Total Return and Income Fund, Inc., c/o Lazard Asset
Management LLC, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, XX 00000, Attn: General Counsel;
if to the Administrator: State Street Bank and Trust Company, Xxx Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxxxxx, XX 00000, Attn: Fund Administration Legal Department,
fax: 000-000-0000.
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14. NON-ASSIGNABILITY
This Agreement shall not be assigned by either party hereto
without the prior consent in writing of the other party, except that either
party may assign this Agreement to a successor of all or a substantial portion
of its business, or to a party controlling, controlled by or under common
control with the party.
15. SUCCESSORS
This Agreement shall be binding on and shall inure to the
benefit of the Fund and the Administrator and their respective successors and
permitted assigns.
16. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the
parties hereto with respect to the subject matter hereof and supersedes all
previous representations, warranties or commitments regarding the services to be
performed hereunder whether oral or in writing.
17. WAIVER
The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver nor
shall it deprive such party of the right thereafter to insist upon strict
adherence to that term or any term of this Agreement. Any waiver must be in
writing signed by the waiving party.
18. SEVERABILITY
If any provision of this Agreement is invalid or
unenforceable, the balance of the Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance it shall nevertheless
remain applicable to all other persons and circumstances.
19. GOVERNING LAW
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
20. REPRODUCTION OF DOCUMENTS
This Agreement and all schedules, exhibits, attachments and
amendments hereto may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties hereto
each agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was made by a
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party in the regular course of business, and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the date first written above.
LAZARD GLOBAL TOTAL RETURN AND INCOME FUND, INC.
By:
--------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By:
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Name: Xxxx X. Xxxxxx
Title: Senior Vice President
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