ADMINISTRATIVE AND ACCOUNTING AGENCY AGREEMENT
THIS AGREEMENT is made as of February 27, 1999 by and between XXXXX
BROTHERS XXXXXXXX & CO., a limited partnership organized under the laws of the
State of New York (the "ADMINISTRATOR"), and each of the Funds listed on
Appendix A to this Agreement (each a "FUND" and collectively, the "FUNDS").
WITNESSETH:
WHEREAS, the Funds are registered with the United States Securities and
Exchange Commission as management investment companies under the Investment
Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Funds desire to retain the Administrator to render certain
services to the Funds, and the Administrator is willing to render such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
1. APPOINTMENT OF ADMINISTRATOR. The Funds hereby employ and appoint the
Administrator to act as their administrative and fund accounting agent on the
terms set forth in this Agreement, and the Administrator accepts such
appointment.
2. DELIVERY OF DOCUMENTS. The Funds will:
2.1 Furnish the Administrator with properly certified or authenticated
copies of resolutions of the Funds' Board of Directors or Trustees
authorizing the appointment of the Administrator as administrative and fund
accounting agent of the Funds and approving this Agreement.
2.2 Provide the Administrator with any other documents or resolutions
(including but not limited to directions or resolutions of the Funds' Board
of Directors or Trustees) which relate to or affect the Administrator's
performance of its duties hereunder or which the Administrator may
reasonably request.
2.3 Notify the Administrator promptly of any matter
affecting the performance by the Administrator of its services under this
Agreement.
3. DUTIES AS ADMINISTRATOR. Subject to the supervision and direction of the
Board of Directors or Trustees of the Funds, the Administrator will perform the
following services:
3.1 Provide an Assistant Treasurer to the Fund.
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3.2 Accumulate information for and, subject to approval by the Funds'
Treasurer, prepare reports to the Funds' shareholders of record as set
forth in Rule 30d-1 of the 1940 Act or as agreed upon in writing from time
to time between the parties hereto and file such reports with the
Securities and Exchange Commission.
3.3 Prepare and file the Securities and Exchange Commission's Form N-SAR.
3.4 Consult with the Funds' Treasurer on financial matters relating to the
Funds including without limitation dividend distributions, expense
proformas, expense accruals and other matters, including payment of
expenses, as shall from time to time be agreed upon by the parties.
3.5 Assist the Funds' Treasurer with the Funds' federal, state and
applicable local tax preparation and reporting, including the following:
3.5.1 preparation of fiscal and excise tax distribution
calculations;
3.5.2 preparation and filing of federal, state and any local income
tax returns, including tax return extension requests;
3.5.3 preparation of shareholder year end reporting statements;
3.5.4 provide the appropriate amounts and characterization of
distributions declared during the calendar year for Forms
1099 reporting;
3.5.5 periodically review and determine of distributions to be paid
to shareholders;
3.5.6 consult with the Fund's Treasurer regarding potential passive
foreign investment companies ("PFICs");
3.5.7 consult with the Fund's Treasurer on various tax issues as
they arise and with the Fund's outside auditors when
appropriate;
3.6 Assist the investment adviser for the Fund (the "Adviser"), at the
Adviser's request, in monitoring and developing compliance procedures for
the Fund which will include, among other matters, procedures to assist the
Adviser in monitoring compliance with the Fund's investment objectives,
policies and restrictions, tax matters and applicable laws and regulations
and performing certain monthly compliance tests, to the extent relevant
information is available to the Administrator in the performance of its
functions as the Fund's net asset value calculation agent.
3.7 Assist the Fund's Treasurer in the preparation of quarterly reporting
to the Fund's Board of Directors or Trustees as required by applicable
rules under the 1940 Act and as agreed between the Administrator and the
Funds from time to time.
3.8 Report monthly to the Funds' Treasurer on compliance of the Funds'
fidelity bond coverage with Rule 17g-1 of the 0000 Xxx.
3.9 Report monthly to Treasurer on comparison of the Funds' actual shares
outstanding with its authorized shares.
3.10 Assist the Funds' Treasurer in preparing the Funds' performance
analysis reports (including yield and total return information) calculated
in accordance with applicable U. S. securities laws and in reporting to
external databases such information as may reasonably be
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requested.
3.11 Serve as recordkeeper and net asset value calculation agent
responsible for performing those functions as set forth in Section 4 below
3.12 Create, maintain and retain such records relating to its obligations
under this Agreement as are required under the 1940 Act (including Section
31 thereof and Rules 31a-1 and 31a-2 thereunder).
3.13 Assist the Funds' Treasurer, officers and Adviser in such other
matters as the Funds and the Administrator shall from time to time agree.
In performing its duties and obligations hereunder, the Administrator will
act in accordance with the Funds' Articles of Incorporation or Declaration of
Trust, By-laws and Prospectus and Proper Instructions. It is agreed and
understood, however, that the Administrator shall not be responsible for
compliance the Funds' investments with any applicable documents, laws or
regulations, or for losses, costs or expenses arising out of the Funds' failure
to comply with said documents, laws or regulations or the Funds' failure or
inability to correct any non-compliance therewith.
4. DUTIES AS NET ASSET VALUE CALCULATION AGENT. The Administrator shall
compute and determine the net asset value per share of the Funds as of the close
of business on the New York Stock Exchange on each day on which such Exchange is
open, unless otherwise directed by Proper Instruction. Such computation and
determination shall be made in accordance with:
4.1 The provisions of the Funds' Declaration of Trust or Certificate of
Incorporation and By-Laws, as they may from time to time be amended and
delivered to the Administrator.
4.2 The votes of the Board of Directors or Trustees of the Fund at the
time in force and applicable, as they may from time to time be delivered to
the Administrator.
4.3 Proper Instructions, including without limitation any information:
4.3.1 as to accrual of liabilities of the Funds and as to
liabilities of the Funds not appearing on the books of
account kept by the Administrator
4.3.2 as to the existence, status and proper treatment of reserves,
if any, authorized by the Funds
4.3.3 as to the sources of quotations to be used in computing the
net asset value, including those listed in Appendix B hereto
4.3.4 as to the fair value to be assigned to any securities or
other property for which price quotations are not readily
available
4.3.5 as to the sources of information with respect to "corporate
actions" affecting portfolio securities of the Funds,
including those listed in Appendix B. (Information as to
"corporate actions" shall include information as to
dividends, distributions, stock splits, stock dividends,
rights offerings, conversions, exchanges, recapitalizations,
mergers, redemptions, calls, maturity dates and similar
transactions, including the ex- and record dates and the
amounts or other terms thereof.).
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4.3.6 as to the use a particular source for the valuation of a
specific Security or other Property of the Funds.
Notwithstanding anything in this Agreement to the contrary, the
Administrator shall not be responsible for the failure of the Funds or their
Investment Advisers to provide the Administrator with Proper Instructions
regarding liabilities which ought to be included in the calculation of the
Funds' net asset value.
On each day that the Administrator shall compute the net asset value per
share of the Funds, the Administrator shall provide the Investment Advisers of
the Funds with written reports which the Investment Advisers will use to verify
that portfolio transactions have been recorded in accordance with the Funds'
instructions and are reconciled with the Funds' trading records.
In like manner, the Administrator shall compute and determine the net asset
value as of such other times as the Board of Directors or Trustees of the Funds
from time to time may reasonably request.
Notwithstanding any other provisions of this Agreement, the following
provisions shall apply with respect to the Administrator's responsibilities as
net asset valuation calculation agent. The Administrator shall be held to the
exercise of reasonable care in computing and determining net asset value, but
shall not be held accountable or liable for any losses or damages the Funds or
any shareholder or former shareholder of the Funds or any other person may
suffer or incur arising from or based upon errors or delays in the determination
of such net asset value resulting from any event beyond the reasonable control
of the Administrator unless such error or delay was due to the Administrator's
negligence willful misconduct in determination of such net asset value (The
parties hereto acknowledge, however, that the Administrator's causing an error
or delay in the determination of net asset value may, but does not in and of
itself, constitute negligence or reckless or willful misconduct.). In no event
shall the Administrator be liable or responsible to the Funds, any present or
former shareholder of the Funds or any other person for any error or delay which
continued or was undetected after the date of an audit performed by the
certified public accountants employed by the Funds if, in the exercise of
reasonable care in accordance with generally accepted accounting standards, such
accountants should have become aware of such error or delay in the course of
performing such audit. The Administrator's liability for any such negligence or
reckless or willful misconduct which results in an error in determination of
such net asset value shall be limited exclusively to the direct, out-of-pocket
loss the Fund, shall actually incur, measured by the difference between the
actual and the erroneously computed net asset value, and any expenses the Fund
shall incur in connection with correcting the records of the Fund affected by
such error (including charges made by the Fund's registrar and transfer agent
for making such corrections) or communicating with shareholders or former
shareholders of the Fund affected by such error.
Without limiting the foregoing, the Administrator shall not be held
accountable or liable to the Funds, any shareholder or former shareholder
thereof or any other person for any delays or losses, damages or expenses any of
them may suffer or incur resulting from (i) the Administrator's failure to
receive timely and suitable notification concerning quotations or corporate
actions relating to or affecting portfolio securities of the Funds or (ii) any
errors in the computation of the net asset value based upon or arising out of
quotations or information as to corporate
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actions if received by the Administrator either (a) from a source which the
Administrator was authorized to rely upon (including those sources listed on
Appendix B), (b) from a source which in the Administrator's reasonable judgment
was as reliable a source for such quotations or information as such authorized
sources, or (c) relevant information known to the Fund or the Investment Adviser
which would impact the calculation of net asset value but which is not
communicated by the Fund or the Investment Adviser to the Administrator.
In the event of any error or delay in the determination of such net asset
value for which the Administrator may be liable, the Funds and the Administrator
will consult and make good faith efforts to reach agreement on what actions
should be taken in order to mitigate any loss suffered by the Fund or its
present or former shareholders, in order that the Administrator's exposure to
liability shall be reduced to the extent possible after taking into account all
relevant factors and alternatives. It is understood that in attempting to reach
agreement on the actions to be taken or the amount of the loss which should
appropriately be borne by the Administrator, the Fund and the Administrator will
consider such relevant factors as the amount of the loss involved, the Fund's
desire to avoid loss of shareholder good will, the fact that other persons or
entities could have been reasonably expected to have detected the error sooner
than the time it was actually discovered, the appropriateness of limiting or
eliminating the benefit which shareholders or former shareholders might have
obtained by reason of the error, and the possibility that other parties
providing services to the Fund might be induced to absorb a portion of the loss
incurred.
The Administrator shall in no event be liable or responsible to the Fund,
any present or former shareholder of the Fund or any other person for any error
or delay which continued or was undetected after the date of an audit performed
by the certified public accountants employed by the Fund if, in the exercise of
reasonable care in accordance with generally accepted accounting standards, such
accountants should have become aware of such error or delay in the course of
performing such audit.
Notwithstanding anything else in this Agreement to the contrary, the
Administrator's entire liability to the Fund for any loss or damage arising or
resulting from its performance hereunder or for any other cause whatsoever, and
regardless of the form of action, shall be limited to the Fund's actual and
direct out-of-pocket expenses and losses which are reasonably incurred by the
Fund. In no event and under no circumstances shall the Administrator or a Fund
be held liable to the other party for consequential or indirect damages, loss of
profits, damage to reputation or business or any other special damages arising
under or by reason of any provision of this Agreement or for any act or omission
hereunder.
5. EXPENSES AND COMPENSATION. For the services to be rendered and the
facilities to be furnished by the Administrator as provided for in this
Agreement, the Funds shall pay the Administrator for its services rendered
pursuant to this Agreement a fee based on such fee schedule as may from time to
time be agreed upon in writing by the Funds and the Administrator. In addition
to such fee, the Administrator shall xxxx the Funds separately for any
out-of-pocket disbursements of the Administrator. Out-of-pocket disbursements
shall include, but shall not be
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limited to, postage, including courier services; telephone; telecommunications;
printing, duplicating and photocopying charges; forms and supplies; filing fees;
legal expenses; and travel expenses. The foregoing fees and disbursements shall
be billed to the Fund by the Administrator and shall be paid promptly by wire
transfer or other appropriate means to the Administrator.
6. STANDARD OF CARE. The Administrator shall be held only to the exercise of
reasonable care and diligence in carrying out the provisions of this Agreement,
provided that the Administrator shall not thereby be required to take any action
which is in contravention of any applicable law, rule or regulation or any order
or judgment of any court of competent jurisdiction.
7. LIMITATION OF LIABILITY. The Administrator shall incur no liability with
respect to any telecommunications, equipment or power failures, or any failures
to perform or delays in performance by postal or courier services or third-party
information providers (including without limitation those listed on Appendix B).
The Administrator shall also incur no liability under this Agreement if the
Administrator or any agent or entity utilized by the Administrator shall be
prevented, forbidden or delayed from performing, or omits to perform, any act or
thing which this Agreement provides shall be performed or omitted to be
performed, by reason of causes or events beyond its control, including but not
limited to:
7.1 any Sovereign Event. A "Sovereign Event" shall mean any
nationalization; expropriation; devaluation; revaluation; confiscation;
seizure; cancellation; destruction; strike; act of war, terrorism,
insurrection or revolution; or any other act or event beyond the
Administrator's control.
7.2 any provision of any present or future law, regulation or order of the
United States or any state thereof, or of any foreign country or political
subdivision thereof, or of any securities depository or clearing agency,
7.3 any provision of any order or judgment of any court of competent
jurisdiction.
Notwithstanding any other provision of this Agreement, the Administrator
shall not be held accountable or liable for any losses, damages or expenses the
Funds or any shareholder or former shareholder of the Funds or any other person
may suffer or incur arising from acts, omissions, errors or delays of the
Administrator in the performance of its obligations and duties hereunder,
including without limitation any error of judgment or mistake of law, except a
damage, loss or expense resulting from the Administrator's willful malfeasance,
bad faith or negligence in the performance of such obligations and duties. The
Administrator shall in no event be required to take any action, which is in
contravention of any applicable law, rule or regulation or any order or judgment
of any court of competent jurisdiction.
The Fund hereby agrees to indemnify the Administrator against and hold it
harmless from any and all
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losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from any act, omission, error or delay
or any claim, demand, action or suit, in connection with or arising out of
performance of its obligations and duties under this Agreement, not resulting
from the willful malfeasance, bad faith or negligence of the Administrator in
the performance of such obligations and duties.
8. RELIANCE BY THE ADMINISTRATOR ON PROPER INSTRUCTIONS AND OPINIONS OF COUNSEL
AND OPINIONS OF CERTIFIED PUBLIC ACCOUNTANTS. The Administrator shall not be
liable for, and shall be indemnified by the Funds against any and all losses,
costs, damages or expenses arising from or as a result of, any action taken or
omitted in reliance upon Proper Instructions or upon any other written notice,
request, direction, instruction, certificate or other instrument believed by it
to be genuine and signed or authorized by the proper party or parties.
Proper Instructions shall include a written request, direction, instruction
or certification signed or initialed on behalf of the Fund by one or more
persons as the Board of Directors or Trustees of the Fund shall have from time
to time authorized. Those persons authorized to give Proper Instructions may be
identified by the Board of Directors or Trustees by name, title or position and
will include at least one officer empowered by the Board to name other
individuals who are authorized to give Proper Instructions on behalf of the
Fund.
Telephonic or other oral instructions or instructions given by telefax
transmission may be given by any one of the above persons and will also be
considered Proper Instructions if the Administrator believes them to have been
given by a person authorized to give such instructions with respect to the
transaction involved.
With respect to telefax transmissions, the Fund hereby acknowledges that
(i) receipt of legible instructions cannot be assured, (ii) the Administrator
cannot verify that authorized signatures on telefax instructions are original,
and (iii) the Administrator shall not be responsible for losses or expenses
incurred through actions taken in reliance on such telefax instructions. The
Fund agrees that such telefax instructions shall be conclusive evidence of the
Fund's Proper Instruction to the Administrator to act or to omit to act.
Proper Instructions given orally will be confirmed by written instructions
in the manner set forth above, including by telefax, but the lack of such
confirmation shall in no way affect any action taken by the Administrator in
reliance upon such oral instructions. The Fund authorizes the Administrator to
tape record any and all telephonic or other oral instructions given to the
Administrator by or on behalf of the Fund (including any of its officers,
Directors, Trustees, employees or agents or any investment manager or adviser or
person or entity with similar responsibilities which is authorized to give
Proper Instructions on behalf of the Fund to the Administrator.)
The Administrator may consult with its counsel or the Fund's counsel in any
case where so doing appears to the Administrator to be necessary or desirable.
The Administrator shall not be considered to have engaged in any misconduct or
to have acted negligently and shall be without liability in acting upon the
advice of its counsel or of the Fund's counsel.
The Administrator may consult with a certified public accountant or the
Fund's Treasurer in any case where so doing appears to the Administrator to be
necessary or desirable. The Administrator shall not be
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considered to have engaged in any misconduct or to have acted negligently and
shall be without liability in acting upon the advice of such certified public
accountant or of the Fund's Treasurer.
9. TERMINATION OF AGREEMENT. This Agreement shall continue in full force and
effect until terminated by the Administrator or the Fund by an instrument in
writing delivered or mailed, postage prepaid, to the other party, such
termination to take effect not sooner than ninety (90) days after the date of
such delivery or mailing. In the event a termination notice is given by a party
hereto, all expenses associated with the movement of records and materials and
the conversion thereof shall be paid by the Fund for which services shall cease
to be performed hereunder.
Notwithstanding anything in the foregoing provisions of this clause, if it
appears impracticable in the circumstances to effect an orderly delivery of the
necessary and appropriate records of the Administrator to a successor within the
time specified in the notice of termination as aforesaid, the Administrator and
the Fund agree that this Agreement shall remain in full force and effect for
such reasonable period as may be required to complete necessary arrangements
with a successor.
If a party hereto shall fail to perform its duties and obligations
hereunder (a "Defaulting Party") resulting in material loss to another party
("the "Non-Defaulting Party"), the Non-Defaulting Party may give written notice
thereof to the Defaulting Party, and if such material breach shall not have been
remedied within thirty (30) days after such written notice is given, then the
Non-Defaulting Party may terminate this Agreement by giving thirty (30) days'
written notice of such termination to the Defaulting Party. If the Administrator
is the Non-Defaulting Party, its termination of this Agreement shall not
constitute a waiver of any other rights or remedies of the Administrator with
respect to payment for services performed prior to such termination or rights of
the Administrator to be reimbursed for out-of-pocket expenses. In all cases,
termination by the Non-Defaulting Party shall not constitute a waiver by the
Non-Defaulting Party of any other rights it might have under this Agreement or
otherwise against the Defaulting Party.
This Section 9 shall survive any termination of this Agreement, whether for
cause or not for cause.
10. AMENDMENT OF THIS AGREEMENT. This Agreement constitutes the entire
understanding and agreement of the parties hereto with respect to the subject
matter hereof. No provision of this Agreement may be amended or terminated
except by a statement in writing signed by the party against which enforcement
of the amendment or termination is sought.
In connection with the operation of this Agreement, the Fund and the
Administrator may agree in writing from time to time on such provisions
interpretive of or in addition to the provisions of this Agreement as may in
their joint opinion be consistent with the general tenor of this Agreement. No
interpretive or additional provisions made as provided in the preceding sentence
shall be deemed to be an amendment of this Agreement.
In the event any provision of this Agreement is determined to be void or
unenforceable, such determination shall not affect the remainder of this
Agreement, which shall continue to be in force.
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The section headings and the use of defined terms in the singular or plural
tenses in this Agreement are for the convenience of the parties and in no way
alter, amend, limit or restrict the contractual obligations of the parties set
forth in this Agreement.
11. GOVERNING LAW. This Agreement shall be governed by and construed according
to the laws of the Commonwealth of Massachusetts without giving effect to
conflicts of laws principles.
12. NOTICES. Notices and other writings delivered or mailed postage prepaid to
the Fund addressed to the Fund at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
or to such other address as the Fund may have designated to the Administrator in
writing, or to the Administrator at 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000,
Attention: Manager, Fund Administration Department, or to such other address as
the Administrator may have designated to the Fund in writing, shall be deemed to
have been properly delivered or given hereunder to the respective addressee.
13. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the Fund and the Administrator and their respective successors and
assigns, provided that no party hereto may assign this Agreement or any of its
rights or obligations hereunder without the written consent of the other party.
14. COUNTERPARTS. This Agreement may be executed in any number of counterparts
each of which shall be deemed to be an original and which collectively shall be
deemed to constitute only one instrument. This Agreement shall become effective
when one or more counterparts have been signed and delivered by each of the
parties.
15. EXCLUSIVITY. The services furnished by the Administrator hereunder are not
to be deemed exclusive, and the Administrator shall be free to furnish similar
services to others.
16. AUTHORIZATION. The Fund hereby represents and warrants that the
execution and delivery of this Agreement have been authorized by the
Fund's Board of Directors or Trustees and that this Agreement has been
signed by an authorized officer of the Fund.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their duly authorized officers as of the date
first written above.
XXXXX BROTHERS XXXXXXXX & CO. each of the Management Investment
Companies listed on the attached
Appendix A
By: /s/ Illegible By: /s/ Xxx Xxxxxx
---------------------------- ----------------------------
Name: Name: Xxx Xxxxxx
Title: Title: Senior Vice President
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APPENDIX A
TO
ADMINISTRATIVE AND ACCOUNTING AGENCY AGREEMENT
Dated as of February 27, 1999
The following is a list of Investment Companies for which the Administrator
shall serve under a Administrative and Accounting Agency Agreement dated as of
February 27, 1999 (the "Agreement"):
BEA INCOME FUND, INC.
BEA STRATEGIC GLOBAL INCOME FUND, INC.
IN WITNESS WHEREOF, each of the parties hereto has caused this Schedule to be
executed in its name and on behalf of each such Investment Company.
each of the Investment Companies XXXXX BROTHERS XXXXXXXX & CO.
listed above
By: /s/ Xxx Xxxxxx By: /s/ Illegible
------------------------ ------------------------
Name: Xxx Xxxxxx Name:
Title: Senior Vice President Title:
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