SUB-ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made as of February 4, 1997 by and between
Bear Xxxxxxx Funds Management Inc., a Delaware corporation ("Bear
Xxxxxxx"), and PFPC, Inc., a Delaware corporation ("PFPC"),
which is an indirect wholly owned subsidiary of PNC Bank Corp.
W I T N E S S E T H :
WHEREAS, Managed Income Securities Plus Fund, Inc. (the
"Company") is registered as a closed-end management investment
company under the Investment Company Act of 1940, as amended (the
"1940 Act");
WHEREAS, Bear Xxxxxxx has entered into an Administration
Agreement dated February 4, 1997 with the Company (the
"Administration Agreement"), concerning provisions of
administrative services to the Company; and
WHEREAS, Bear Xxxxxxx wishes to retain PFPC to provide sub-
administration and accounting services, and PFPC wishes to
furnish such services.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, and intending to be legally
bound hereby the parties hereto agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 Act" means the Securities Act of 1933, as
amended.
(b) "1934 Act" means the Securities Exchange Act of
1934, as amended.
(c) "Authorized Person" means any officer of the
Company and any other person duly authorized by the Company's
Board of Directors to give Oral Instructions and Written
Instructions on behalf of the Company and listed on the
Authorized Persons Appendix attached hereto and made a part
hereof or any amendment thereto as may be received by PFPC. An
Authorized Person's scope of authority may be limited by the
Company by setting forth such limitation in the Authorized
Persons Appendix.
(d) "CEA" means the Commodities Exchange Act, as
amended.
(e) "Oral Instructions" mean oral instructions
received by PFPC from an Authorized Person or from a person
reasonably believed by PFPC to be an Authorized Person.
(f) "SEC" means the Securities and Exchange
Commission.
(g) "Securities Laws" means the 1933 Act, the 1934
Act, the 1940 Act and the CEA.
(h) "Shares" mean the shares of beneficial interest
of any series or class of the Company.
(i) "Written Instructions" mean written instructions
signed by an Authorized Person and received by PFPC. The
instructions may be delivered by hand, mail, tested telegram,
cable, telex or facsimile sending device.
2. APPOINTMENT. Bear Xxxxxxx hereby appoints PFPC to
provide sub-administration and accounting services to the
Company, in accordance with the terms set forth in this
Agreement. PFPC accepts such appointment and agrees to furnish
such services.
3. DELIVERY OF DOCUMENTS. The Company has provided or,
where applicable, will provide PFPC with the following:
(a) certified or authenticated copies of the
resolutions of the Company's Board of Directors,
approving the appointment of PFPC or its
affiliates to provide services to the Company and
approving this Agreement;
(b) a copy of the Company's most recent effective
offering memorandum;
(c) a copy of the Company s advisory agreement or
agreements;
(d) a copy of any additional administration agreement
with respect to the Company;
(e) a copy of any shareholder servicing agreement
made in respect of the Company; and
(f) copies (certified or authenticated, where
applicable) of any and all amendments or
supplements to the foregoing.
4. COMPLIANCE WITH RULES AND REGULATIONS.
PFPC undertakes to comply with all applicable requirements
of the Securities Laws, and any laws, rules and regulations of
governmental authorities having jurisdiction with respect to the
duties to be performed by PFPC hereunder. Except as specifically
set forth herein, PFPC assumes no responsibility for such
compliance by the Company.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC
shall act only upon Oral Instructions and Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral
Instructions and Written Instructions it receives from an
Authorized Person (or from a person reasonably believed by PFPC
to be an Authorized Person) pursuant to this Agreement. PFPC may
assume that any Oral Instruction or Written Instruction received
hereunder is not in any way inconsistent with the provisions of
organizational documents or this Agreement or of any vote,
resolution or proceeding of the Company's Board of Directors or
of the Company's shareholders, unless and until PFPC receives
Written Instructions to the contrary.
(c) The Company agrees to forward to PFPC Written
Instructions confirming Oral Instructions (except where such Oral
Instructions are given by PFPC or its affiliates) so that PFPC
receives the Written Instructions by the close of business on the
same day that such Oral Instructions are received. The fact that
such confirming Written Instructions are not received by PFPC
shall in no way invalidate the transactions or enforceability of
the transactions authorized by the Oral Instructions. Where Oral
Instructions or Written Instructions reasonably appear to have
been received from an Authorized Person, PFPC shall incur no
liability to Bear Xxxxxxx or the Company in acting upon such Oral
Instructions or Written Instructions provided that PFPC's actions
comply with the other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Company. If PFPC is in doubt as to
any action it should or should not take, PFPC may request
directions or advice, including Oral Instructions or Written
Instructions, from the Company.
(b) Advice of Counsel. If PFPC shall be in doubt as
to any question of law pertaining to any action it should or
should not take, PFPC may request advice at its own cost from
such counsel of its own choosing (who may be counsel for the
Company, the Company's investment adviser or PFPC, at the option
of PFPC).
(c) Conflicting Advice. In the event of a conflict
between directions, advice or Oral Instructions or Written
Instructions PFPC receives from the Company and the advice PFPC
receives from counsel, PFPC may rely upon and follow the advice
of counsel. In the event PFPC so relies on the advice of
counsel, PFPC remains liable for any action or omission on the
part of PFPC which constitutes willful misfeasance, bad faith,
gross negligence or reckless disregard by PFPC of any duties,
obligations or responsibilities set forth in this Agreement.
(d) Protection of PFPC. PFPC shall be protected in
any action it takes or does not take in reliance upon directions,
advice or Oral Instructions or Written Instructions it receives
from the Company or from counsel and which PFPC believes, in good
faith, to be consistent with those directions, advice and Oral
Instructions or Written Instructions. Nothing in this section
shall be construed so as to impose an obligation upon PFPC (i) to
seek such directions, advice or Oral Instructions or Written
Instructions, or (ii) to act in accordance with such directions,
advice or Oral Instructions or Written Instructions unless, under
the terms of other provisions of this Agreement, the same is a
condition of PFPC's properly taking or not taking such action.
Nothing in this subsection shall excuse PFPC when an action or
omission on the part of PFPC constitutes willful misfeasance, bad
faith, gross negligence or reckless disregard by PFPC of any
duties, obligations or responsibilities set forth in this
Agreement.
7. RECORDS; VISITS.
(a) The books and records pertaining to the Company
which are in the possession or under the control of PFPC shall be
the property of the Company. Such books and records shall be
prepared and maintained as required by the 1940 Act and other
applicable securities laws, rules and regulations. The Company
and Authorized Persons shall have access to such books and
records at all times during PFPC's normal business hours. Upon
the reasonable request of the Company, copies of any such books
and records shall be provided by PFPC to the Company or to an
Authorized Person, at the Company's expense.
(b) PFPC shall keep the following records:
(i) all books and records with respect to each
Portfolio's books of account;
(ii) records of the Company's securities
transactions; and
(iii) all other books and records as PFPC is
required to maintain pursuant to Rule 31a-1
of the 1940 Act in connection with the
services provided hereunder.
8. CONFIDENTIALITY. PFPC agrees to keep confidential all
records of the Company and information relating to the Company
and its shareholders, unless the release of such records or
information is otherwise consented to, in writing, by the
Company. The Company agrees that such consent shall not be
unreasonably withheld and may not be withheld where PFPC may be
exposed to civil or criminal contempt proceedings or when
required to divulge such information or records to duly
constituted authorities.
9. LIAISON WITH ACCOUNTANTS. PFPC shall act as liaison
with the Company's independent public accountants and shall
provide account analyses, fiscal year summaries, and other
audit-related schedules with respect to the Company. PFPC shall
take all reasonable action in the performance of its duties under
this Agreement to assure that the necessary information is made
available to such accountants for the expression of their
opinion, as required by the Company.
10. DISASTER RECOVERY. PFPC shall enter into and shall
maintain in effect with appropriate parties one or more
agreements making reasonable provisions for emergency use of
electronic data processing equipment to the extent appropriate
equipment is available. In the event of equipment failures, PFPC
shall, at no additional expense to Bear Xxxxxxx, take reasonable
steps to minimize service interruptions. PFPC shall have no
liability with respect to the loss of data or service
interruptions caused by equipment failure, provided such loss or
interruption is not caused by PFPC's own willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties or
obligations under this Agreement.
11. COMPENSATION. As compensation for services rendered by
PFPC during the term of this Agreement, Bear Xxxxxxx will pay to
PFPC a fee or fees as may be agreed to in writing by Bear Xxxxxxx
and PFPC.
12. INDEMNIFICATION. Bear Xxxxxxx, on behalf of the
Company, agrees to indemnify and hold harmless PFPC and its
affiliates from all taxes, charges, expenses, assessments, claims
and liabilities (including, without limitation, liabilities
arising under the Securities Laws and any state or foreign
securities and blue sky laws, and amendments thereto), and
expenses, including (without limitation) attorneys' fees and
disbursements arising directly or indirectly from any action or
omission to act which PFPC takes (i) at the request or on the
direction of or in reliance on the advice of Bear Xxxxxxx or the
Company or (ii) upon Oral Instructions or Written Instructions.
Neither PFPC, nor any of its affiliates', shall be indemnified
against any liability (or any expenses incident to such
liability) arising out of PFPC's or its affiliates' own willful
misfeasance, bad faith, gross negligence or reckless disregard of
its duties and obligations under this Agreement.
13. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action on
behalf of Bear Xxxxxxx or the Company except as specifically set
forth herein or as may be specifically agreed to by PFPC in
writing. PFPC shall be obligated to exercise care and diligence
in the performance of its duties hereunder, to act in good faith
and to use its best efforts, within reasonable limits, in
performing services provided for under this Agreement. PFPC
shall be liable for any damages arising out of PFPC's failure to
perform its duties under this Agreement to the extent such
damages arise out of PFPC's willful misfeasance, bad faith, gross
negligence or reckless disregard of such duties.
(b) Without limiting the generality of the foregoing
or of any other provision of this Agreement, (i) PFPC shall not
be liable for losses beyond its control, provided that PFPC has
acted in accordance with the standard of care set forth above;
and (ii) PFPC shall not be liable for (A) the validity or
invalidity or authority or lack thereof of any Oral Instruction
or Written Instruction, notice or other instrument which conforms
to the applicable requirements of this Agreement, and which PFPC
reasonably believes to be genuine; or (B) subject to Section 10,
delays or errors or loss of data occurring by reason of
circumstances beyond PFPC's control, including acts of civil or
military authority, national emergencies, labor difficulties,
fire, flood, catastrophe, acts of God, insurrection, war, riots
or failure of the mails, transportation, communication or power
supply.
(c) Notwithstanding anything in this Agreement to the
contrary, neither PFPC nor its affiliates shall be liable to Bear
Xxxxxxx or the Company for any consequential, special or indirect
losses or damages which Bear Xxxxxxx or the Company may incur or
suffer by or as a consequence of PFPC's or any affiliates'
performance of the services provided hereunder, whether or not
the likelihood of such losses or damages was known by PFPC or its
affiliates.
14. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS
BASIS.
PFPC will perform the following accounting services if
required:
(i) Journalize investment, capital share and
income and expense activities;
(ii) Verify investment buy/sell trade tickets when
received from the Company s investment
adviser (the "Adviser") and transmit trades
to the Company's custodian (the "Custodian")
for proper settlement;
(iii) Maintain individual ledgers for investment
securities;
(iv) Maintain historical tax lots for each
security;
(v) Reconcile cash and investment balances of the
Company with the Custodian, and provide the
Adviser with the beginning cash balance
available for investment purposes;
(vi) Update the cash availability as required by
the Adviser;
(vii) Post to and prepare the Statement of Assets
and Liabilities and the Statement of
Operations;
(viii) Calculate various contractual expenses
(e.g., advisory and custody fees);
(ix) Monitor the expense accruals and notify
an officer of the Company of any proposed
adjustments;
(x) Control all disbursements and authorize such
disbursements upon Written Instructions;
(xi) Calculate capital gains and losses;
(xii) Determine net income;
(xiii) Obtain security market quotes from
independent pricing services approved by the
Adviser, or if such quotes are unavailable,
then obtain such prices from the Adviser, and
in either case calculate the market value of
the Company's investments;
(xiv) Transmit or mail a copy of the
portfolio valuation to the Adviser;
(xv) Compute net asset value;
(xvi) As appropriate, compute yields, total
return, expense ratios, portfolio turnover
rate, and, if required, portfolio average
dollar-weighted maturity; and
(xvii) Prepare a periodic financial statement,
which will include the following items:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
Cash Statement
Schedule of Capital Gains and Losses.
15. DESCRIPTION OF ADMINISTRATION SERVICES ON A
CONTINUOUS BASIS.
PFPC will perform the following administration services
if required:
(i) Prepare quarterly broker security
transactions summaries;
(ii) Prepare monthly security transaction
listings;
(iii) Supply various normal and customary Company
statistical data as requested on an ongoing
basis;
(iv) Prepare for execution and file the Company's
Federal and state tax returns;
(v) Assist in the preparation and, if required,
filing with the SEC the Company's annual and
semi-annual shareholder reports;
(vi) Assist in monitoring the Company's status as
a regulated investment company under Sub-
chapter M of the Internal Revenue Code of
1986, as amended; and
(vii) Coordinate contractual relationships and
communications between the Company and its
contractual service providers.
16. DURATION AND TERMINATION. This Agreement shall
continue until terminated by either party on sixty (60) days'
prior written notice to the other party.
17. NOTICES. All notices and other communications,
including Written Instructions, shall be in writing or by
confirming telegram, cable, telex or facsimile sending device.
If notice is sent by confirming telegram, cable, telex or
facsimile sending device, it shall be deemed to have been given
immediately. If notice is sent by first-class mail, it shall be
deemed to have been given three days after it has been mailed.
If notice is sent by messenger, it shall be deemed to have been
given on the day it is delivered. Notices shall be addressed (a)
if to PFPC, at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000;
(b) if to Bear Xxxxxxx, at ,
Attn: ; or (c) if to neither of the foregoing,
at such other address as shall have been provided by like notice
to the sender of any such notice or other communication by the
other party.
18. AMENDMENTS. This Agreement, or any term thereof, may
be changed or waived only by written amendment, signed by the
party against whom enforcement of such change or waiver is
sought.
19. DELEGATION; ASSIGNMENT. PFPC may assign its rights and
delegate its duties hereunder to any wholly-owned direct or
indirect subsidiary of PNC Bank, National Association or PNC Bank
Corp., provided that (i) PFPC gives Bear Xxxxxxx thirty (30)
days' prior written notice; (ii) the delegate (or assignee)
agrees with PFPC and Bear Xxxxxxx to comply with all relevant
provisions of the 1940 Act; and (iii) PFPC and such delegate (or
assignee) promptly provide such information as Bear Xxxxxxx may
request, and respond to such questions as Bear Xxxxxxx may ask,
relative to the delegation (or assignment), including (without
limitation) the capabilities of the delegate (or assignee).
20. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
21. FURTHER ACTIONS. Each party agrees to perform such
further acts and execute such further documents as are necessary
to effectuate the purposes hereof.
22. MISCELLANEOUS.
(a) Entire Agreement. This Agreement embodies the
entire agreement and understanding between the parties and
supersedes all prior agreements and understandings relating to
the subject matter hereof, provided that the parties may embody
in one or more separate documents their agreement, if any, with
respect to delegated duties and Oral Instructions.
(b) Captions. The captions in this Agreement are
included for convenience of reference only and in no way define
or delimit any of the provisions hereof or otherwise affect their
construction or effect.
(c) Governing Law. This Agreement shall be deemed to
be a contract made in Delaware and governed by Delaware law,
without regard to principles of conflicts of law.
(d) Partial Invalidity. If any provision of this
Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall
not be affected thereby.
(e) Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
(f) Facsimile Signatures. The facsimile signature of
any party to this Agreement shall constitute the valid and
binding execution hereof by such party.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above
written.
PFPC INC.
By: /s/ Xxxxxxx X. Xxxxx
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Title: /s/ Executive Vice President
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Bear Xxxxxxx Funds Management Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Vice President
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AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
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