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conflict with any obligationof BlackRock, whether arising by contract, operation of law, or otherwise, (c) this Agreementconstitutes a valid, and binding obligation, and (d) BlackRock has all rights and power necessaryto provide the Services contemplated herein.4. Fees. (a) Client shall pay BlackRock fees for the Services to be calculated and payablein the manner set forth in Schedule B (the “Fees”).(b) Client agrees to reimburse BlackRock for all fees paid by BlackRock to the National Associationof Insurance Commissioners’ Security Valuation Office (“NAIC-SVO”) to file or register Client’ssecurities with the NAIC-SVO, to the extent applicable.(c) Certain assumptions regarding implementation of BlackRock’s responsibilities under thisAgreement have been made based on information supplied by Client. If after the Amended EffectiveDate the composition of Client’s portfolios materially changes, the parties agree to jointlydetermine in good faith whether a reasonable increase in the amount of the Fees, and/or anyreasonable changes to the Services, is required.5. Confidential Information. (a) All information regarding this Agreement, the parties’business and their subsidiaries and affiliates, any documents exchanged between the parties inconnection with the Services, as well as all technology, processes, trade secrets, contracts,proprietary information, historical or projected financial information, organizational or operatingdata, strategic or management plans, and customer information or lists, whether received before orafter the date hereof (“Confidential Information”), shall be kept in confidence by each of theparties hereto. Notwithstanding the foregoing, (i) Client may disclose Confidential Informationcontained in reports produced by BlackRock hereunder in the ordinary course of Client’s businessand (ii) BlackRock may disclose certain information to third parties in the normal course ofbusiness (e.g., contractors and data vendors), subject to the requirement that such third partiesbe bound by and have agreed to comply with confidentiality obligations substantially equivalent tothe terms of this Agreement.(b) The parties’ obligations concerning Confidential Information shall survive seven years fromtermination or expiration of this Agreement. The term “Confidentiality Information” shall not applyto information that can be demonstrated is (i) publicly available, (ii) lawfully possessed by therecipient before disclosure by the other party, (iii) lawfully disclosed to a party by a thirdparty without obligation of confidentiality, or (iv) independently developed by a party withoutreference to the other party’s Confidential Information.Prior to any disclosure of Confidential Information that becomes necessary pursuant to applicablelaw, regulation, order or requirement or official request issued by a court of competentjurisdiction or by a judicial, administrative, legislative, regulatory or self regulating authorityor entity, the receiving party will, to the extent reasonably possible and permissible: (a)promptly notify in writing the disclosing party thereof; (b) consult with the disclosing party onthe advisability of taking steps to resist or narrow such request; (c) if disclosure is required ordeemed advisable, co-operate with the disclosing party in any attempt that it may make to obtain anorder or other reliable assurance that confidential treatment will be accorded to the ConfidentialInformation or designated portions thereof; and (d) agree with the disclosing party on the timingand content of the disclosure.Both parties acknowledge that the disclosing party’s Confidential Information may contain valuabletrade secrets or business information and that the receiving party’s breach of this Agreement maycause irreparable damage to the disclosing party for which the disclosing party will be entitled toseek injunctive or other equitable relief (without the posting of a bond and without proof ofactual damages) as well as monetary damages.(c) BlackRock shall be permitted to include Client on its list of clients and BlackRock maydescribe the general nature of its work for Client under this Agreement; provided that BlackRockwill not display Client’s name more prominently than its other clients and will obtain Client’sconsent prior to making any other use of Client’s name. BlackRock shall not issue any pressrelease in connection with this Agreement without Client’s prior written consent.6. Limitations on Liability; Indemnity. (a) Subject to the limitations set forth herein andthe provisions of subsection (c) below, (i) BlackRock shall indemnify Client against any and alllosses, damages, costs, expenses (as they are incurred, including reasonable attorney’s fees),liabilities, claims, and demands (“Losses”) by third parties against Client in connection with thisAgreement to the extent such claims arise out of BlackRock’s gross negligence, intentionalmisconduct, fraud, or illegal acts, except to the extent such claims are attributable to Client’sacts or omissions, and (ii) other than for claims that arise out of BlackRock’s gross negligence,intentional misconduct, fraud or illegal acts, BlackRock shall not be liable for any Losses inconnection with this Agreement, even if arising out of its mistake in judgment, acts or omissions,or erroneous data or calculations. In no event shall either party be liable for any consequential,punitive, exemplary, incidental, or other indirect damages.(b) Client shall indemnify BlackRock against Losses suffered by BlackRock in connection with thisAgreement, and Client further agrees to reimburse BlackRock for all reasonable out-of-pocketexpenses incurred by BlackRock in connection with investigating, preparing for or defending anyaction or claim, whether in connection with pending or threatened litigation to
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which BlackRock isa party, in each case, as such expenses are incurred or paid. Client, however, will not beresponsible for any Losses that are finally judicially determined by a court of competentjurisdiction to have resulted from the gross negligence, intentional misconduct, fraud, or illegalacts of BlackRock.(c) Other than with respect to claims for breach of confidentiality, BlackRock’s liability, in theaggregate, shall not exceed the fees payable by Client hereunder during the twelve (12) monthsimmediately preceding the event giving rise to the liability. BlackRock’s entire liability toClient is set forth in this Section 6.7. Force Majeure. Neither BlackRock nor Client shall be responsible for any delay orfailure of performance resulting from causes beyond its reasonable control and without its fault ornegligence. Notwithstanding the foregoing, if any event lasts for more than sixty days, Client mayterminate without cost or obligation and Client shall be entitled to an appropriate refund.8. Term. (a) The initial term of this Agreement will be extended for a 36-month periodfrom the Amended Effective Date. Thereafter, this Agreement will renew for 12-month terms unlesseither party provides written notice to the other party of its desire not to renew at least 60 daysin advance of the expiration of the then-current term.(b) On the written request of Client, BlackRock will use reasonable efforts to make available anextract of all of Client’s data on BlackRock’s automated systems in ASCII File format or hard copy.Upon termination of this Agreement (and for the period specified by the Investment Advisers Act of1940 (the “Act”) and regulations promulgated thereunder), BlackRock shall provide copies of suchrecords at Client’s expense as Client may request, to the extent required to be maintained by theAct.(c) In addition to the termination right described in Section 7 above, either party shall have theright to terminate this Agreement before its scheduled expiration date if the other party commits amaterial breach of its obligations that remains uncured more than 30 days after a written noticespecifying in detail the nature of such breach. In the event that any third parties upon whomBlackRock relies in the provision of the Services are no longer able or willing to provide therequisite services to BlackRock or will only provide such services on commercially unreasonableterms, then BlackRock will use commercially reasonable efforts to provide alternatives to suchservices. If BlackRock is unable to provide alternatives to any such terminated services, then itmay terminate this Agreement upon prior written notice to Client.9. Auditing. Client shall have the reasonable right to audit all BlackRock’s books andrecords directly pertaining to the performance of the Services, and to obtain such copies of suchbooks and records as its auditors may reasonably request in connection with such audit, providedthat Client gives reasonable notice of the audit, and reviews the books and records duringBlackRock’s normal business hours, and promptly reimburses BlackRock for any reasonable costs ofphotocopying such books and records. BlackRock also shall provide to Client a copy of its annual“SAS 70” report pertaining to the provision of the Services.10.10. Applicable Law. This Agreement shall be construed pursuant to, and shall be governedby, the laws of the state of New York without regard to its conflicts of laws principles. Theparties agree that all disputes arising under this Agreement shall be resolved in the state orfederal courts in New York County, New York. Each party consents to jurisdiction and venue in suchcourts.11. Assignment. Neither party may assign this Agreement without the other party’s priorwritten consent, which shall not be unreasonably withheld or delayed; provided, that either partymay assign this Agreement without consent to an affiliate or in connection with a sale ofsubstantially all of its assets or a merger or acquisition transaction. Subject to the foregoing,this Agreement shall be for the benefit of and binding upon the parties, their successors andpermitted assigns.12. Notices. Any notice given hereunder shall be in writing and delivered by hand,facsimile, or by first class mail, addressed as follows:**If to Client**:Joan H. Dillard