AMENDED AND RESTATED
ADMINISTRATION AGREEMENT
The Administration Agreement of PREFERRED INCOME OPPORTUNITY FUND
INCORPORATED, a Maryland corporation (the "Fund"), made and agreed to by and
between the Fund and THE BOSTON COMPANY ADVISORS, INC., a Massachusetts
corporation ("Boston Advisors"), on February 5, 1992, as amended and restated on
March 1, 1993 and as assigned by Boston Advisors to FIRST DATA INVESTOR SERVICES
GROUP, INC., a Massachusetts corporation ("FDISG"), (then known as The
Shareholder Services Group, Inc.) on April 29, 1994, is hereby further amended
and restated as of December 1, 1996 to read in its entirety as follows:
WHEREAS, the Fund is registered as a diversified, closed-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Fund desires to retain FDISG to render certain
administrative services to the Fund and FDISG is willing to render such
services;
WITNESSETH:
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Fund hereby appoints FDISG to act as
Administrator of the Fund on
the terms set forth in this Agreement. FDISG accepts such appointment and
agrees to render the services
herein set forth for the compensation herein provided.
2. Delivery of Documents. The Fund has furnished FDISG with
copies properly certified
or authenticated of each of the following:
(a) Resolutions of the Fund's Board of Directors
authorizing the appointment of
FDISG to provide certain administrative services to the Fund and approving
this Agreement;
(b) The Fund's Articles of Incorporation filed with the
Maryland Department of Assessments and Taxation on December 10, 1991 and all
amendments thereto (the "Articles");
(c) The Fund's By-Laws and all amendments thereto
(the "By-Laws");
(d) The Investment Advisory Agreement between Xxxxxxxx &
Xxxxxxxx Incorporated (the "Adviser") and the Fund dated as of February 1, 1992
as amended and restated from time to time (the "Advisory Agreement");
(e) The Custody Agreement between Boston Safe Deposit and
Trust Company (the "Custodian") and the Fund dated as of February 5, 1992 as
amended and restated from time to time (the "Custody Agreement");
(f) The Transfer Agency and Registrar Agreement
between The Shareholder Services
Group, Inc. (the "Transfer Agent") and the Fund dated as of January
24, 1991 as amended and restated
from time to time;
(g) The Fund's most recent Registration Statement on Form N-2
(the "Registration Statement") under the Securities Act of 1933 and under the
1940 Act (File Nos. 33-44513 and 811-6495), as filed with the Securities and
Exchange Commission ("SEC") on December 31, 1991 relating to shares of the
Fund's Common Stock, $.01 par value per share, and all amendments thereto; and
(h) The Fund's most recent prospectus (the "Prospectus").
The Fund will furnish FDISG from time to time with copies, properly
certified or authenticated, of all amendments of or supplements to the
foregoing. Furthermore, the Fund will provide FDISG with any other documents
that FDISG may reasonably request and will notify FDISG as soon as possible of
any matter materially affecting the performance of FDISG of its services under
this agreement.
3. Duties as Administrator. Subject to the supervision
and direction of the Board of
directors of the Fund, FDISG, as Administrator, will assist in supervising
various aspects of the Fund's
administrative operations and undertakes to perform the following specific
services:
(a) Maintaining office facilities (which may be
in the offices of FDISG or a
corporate affiliate);
(b) Furnishing statistical and research data, data processing
services, clerical services, and internal legal, executive the administrative
services and stationery and office supplies in connection with the foregoing;
(c) Furnishing corporate secretarial services
including preparation and
distribution of materials for Board of Directors meetings;
(d) Accounting and bookkeeping services (including the
maintenance of such accounts, books and records of the Fund as may be required
by section 31(a) of the 1940 Act and the rules thereunder);
(e) Internal auditing;
(f) Valuing the Fund's assets and calculating the net asset
value of the shares of the Fund at the close of trading on the New York Stock
Exchange (the "NYSE") on the last day on which the NYSE is open for trading of
each week and month and at such other times as the Board of Directors may
reasonably request;
(g) Accumulating information for and, subject to approval by
the Fund's Treasurer, preparing reports to the Fund's shareholders of record and
the SEC including, but not necessarily limited to, Annual Reports and
Semi-Annual Reports on Form N-SAR;
(h) Preparing and filing various reports or other documents
required by federal, state and other applicable laws and regulations and by
stock exchanges on which the shares of the Fund are listed, other than those
filed or required to be filed by the Adviser or Transfer Agent;
(i) Preparing and filing the Fund's tax returns;
(j) Assisting the Adviser, at the Adviser's request, in
monitoring and developing compliance procedures for the Fund which will include,
among other matter, procedures to assist the Adviser in monitoring compliance
with the Fund's investment objective, policies, restrictions, tax matters and
applicable laws and regulations; and
(k) Preparing and furnishing the Fund (at the Fund's request)
with the performance information (including yield and total return information)
calculated in accordance with applicable U.S. securities laws and reporting to
external databases such information as may reasonably be requested.
In performing all services under this Agreement, FDISG shall
act in conformity with the Fund's Articles and By-Laws; the 1940 Act and the
Investment Advisers Act of 1940, as the same may be amended from time to time;
and the investment objective, investment policies and other practices and
policies set forth in the Fund's Registration Statement as such Registration
Statement and practices and policies may be amended from time to time.
4. Allocation of Expenses. FDISG shall bear all
expenses in connection with the
performance of its services under this Agreement.
(a) FDISG will from time to time employ or associate with
itself such person or persons as FDISG may believe to be particularly suited to
assist it in performing services under this Agreement. Such person or persons
may be officers and employees who are employed by both FDISG and the Fund. The
compensation of such person or persons shall be paid by FDISG and no obligation
shall be incurred on behalf of the Fund in such respect.
(b) FDISG shall not be required to pay any of the following
expenses incurred by the Fund: membership dues in the Investment Company
Institute or any similar organization; investment advisory expenses; costs of
printing and mailing stock certificates, prospectuses, reports and notices;
interest on borrowed money; brokerage commissions; taxes and fees payable to
Federal, state and other governmental agencies; fees of Directors of the Fund
who are not affiliated with FDISG; outside auditing expenses; outside legal
expenses; or other expenses not specified in this Section 4 which may be
properly payable by the Fund.
(c) For the services to be rendered, the facilities to be
furnished and the payments to be made by FDISG, as provided for in this
Agreement, the Fund will pay FDISG the fees in accordance with the Amended and
Restated Fee Agreement among the Fund, Boston Safe Deposit and Trust Company and
FDISG dated March 1, 1993 and attached hereto as Schedule A.
(d) The Fund will compensate FDISG for its services rendered
pursuant to this Agreement in accordance with the fees set forth above. Such
fees do not include out-of-pocket disbursements of FDISG for which FDISG shall
be entitled to xxxx separately. Out-of-pocket disbursements shall include, but
shall not be limited to, the items specified in Schedule B, annexed hereto and
incorporated herein, which schedule may be modified by FDISG upon not less than
thirty days' prior written notice to the Fund.
(e) FDISG will xxxx the Fund as soon as practicable
after the end of each calendar
month, and said xxxxxxxx will be detailed in accordance with the
out-of-pocket schedule. The Fund will
promptly pay to FDISG the amount of such billing.
5. Limitation of Liability. FDISG shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Fund in connection
with the performance of its obligations and duties under this Agreement, except
a loss resulting from FDISG' willful misfeasance, bad faith or gross negligence
in the performance of such obligations and duties, or by reason of its reckless
disregard thereof. The Fund will indemnify FDISG against and hold it harmless
from any and all losses, claims, damages, liabilities of expenses (including
reasonable counsel fees and expenses) resulting from any claim, demand, action
or suit not resulting from the willful misfeasance, bad faith or gross
negligence of FDISG in the performance of such obligations and duties or by
reason of its reckless disregard thereof.
6. Termination of Agreement.
(a) This Agreement shall become effective on the date hereof
and shall remain in force from year to year so long as such continuance is
specifically approved at least annually by the Board of Directors of the Fund or
unless terminated pursuant to the provisions of subsection (b) of this Section
6.
(b) This Agreement may be terminated at any time without
payment of any penalty, upon 60 days' written notice, by vote of the holders of
a majority of the outstanding voting securities of the Fund, or by vote of a
majority of the Board of Directors of the Fund, or by the FDISG.
7. Amendment to this Agreement. No provisions of this Agreement may be
changed, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, discharge or
termination is sought.
8. Miscellaneous.
(a) Any notice or other instrument authorized or required by
this Agreement to be given in writing to the Fund or FDISG shall be sufficiently
given if addressed to that party and received by it at its office set forth
below or at such other place as it may from time to time designate in writing.
To the Fund:
Preferred Income Opportunity Fund Incorporated
c/o Flaherty & Xxxxxxxx Incorporated
000 X. Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
To FDISG:
First Data Investor Services Group, Inc.
4400 Computer Drive, 2AW45
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxx, Esquire
(b) This Agreement shall extend to and shall be binding upon
the parties hereto and their respective successors and assigns; provided,
however, that this Agreement shall not be assignable without the written consent
of the other party.
(c) This Agreement shall be construed in
accordance with the laws of the
Commonwealth of Massachusetts.
(d) 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 shall be deemed to constitute only
one instrument.
(e) The captions of 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.
9. Confidentiality. All books, records, information and data pertaining
to the business of the Fund that are exchanged or received pursuant to the
performance of FDISG' duties under this Agreement shall remain confidential and
shall not be voluntarily disclosed to any other person, except as specifically
authorized by the Fund or as may be required by law.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed and delivered by their duly authorized officers as of the date,
first written above.
FIRST DATA INVESTOR SERVICES GROUP, INC.
By: XXXXXXX XXXXXX
Title: Executive Vice President
PREFERRED INCOME OPPORTUNITY
FUND INCORPORATED
By: XXXXXX X. XXXXXXXX
Title: President
SCHEDULE A
FEE SCHEDULE
In consideration of the services which FDISG shall perform for the Fund
pursuant to this Agreement, the Fund hereby agrees to pay FDISG an aggregate
monthly fee at the annual rate of: 0.12 of 1.00% of the value of the Fund's
average monthly net assets which, for the purposes of calculating such fee, will
be deemed to be the average monthly value of the Fund's total assets minus the
sum of the Fund's liabilities (excluding aggregate liquidation preference on the
outstanding shares of the Fund's auction rate preferred stock and accumulated
dividends, if any, thereon).
The fee for the period from the date the Registration Statement is
declared effective by the Securities and Exchange Commission to the end on the
month during which the Registration Statement is declared effective shall be
prorated according to the proportion that such period bears to the full monthly
period. Upon any termination of this Agreement before the end of any month, the
fee for such part of a month shall be prorated according to the proportion which
such period bears to the full monthly period and shall be payable upon the date
of termination of this Agreement.
SCHEDULE B
PREFERRED INCOME OPPORTUNITY FUND INCORPORATED
Out-Of-Pocket Expenses
Administration Agreement
Out-of Pocket expenses include, but are not limited to, the following:
o Postage
o Telephone and telecommunications charges
o Pricing services
o Travel to/from Board meetings
