CUSTODY AGREEMENT
AGREEMENT, dated as of February 5, 1997 by and between
MANAGED INCOME SECURITIES PLUS FUND, INC. (the "Fund"), a
corporation organized and existing under the laws of the State of
Delaware, and CUSTODIAL TRUST COMPANY, a bank organized and
existing under the laws of the State of New Jersey (the
"Custodian").
WHEREAS, the Fund desires that its securities, funds and
other assets be held and administered by Custodian pursuant to
this Agreement;
WHEREAS, Custodian represents that it is a bank having the
qualifications prescribed in the 1940 Act to act as custodian for
management investment companies registered under the 1940 Act;
NOW, THEREFORE, in consideration of the mutual agreements
herein made, the Fund and Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following terms, unless
the context otherwise requires, shall mean:
1.1 "AUTHORIZED PERSON" means any person authorized by
resolution of the Board of Directors to give Oral Instructions
and Written Instructions on behalf of the Fund and identified, by
name or by office, in Exhibit A hereto or any person designated
to do so by an investment adviser of the Fund named by the Fund
in Exhibit B hereto.
1.2 "BOARD OF DIRECTORS" means the Board of Directors of the
Fund or, when permitted under the 1940 Act, the Executive
Committee thereof, if any.
1.3 "BOOK-ENTRY SYSTEM" means a book-entry system maintained
by a Federal Reserve Bank for securities of the United States
government or of agencies or instrumentalities thereof (including
government-sponsored enterprises).
1.4 "BUSINESS DAY" means any day on which banks in the State
of New Jersey and New York are open for business.
1.5 "CUSTODY ACCOUNT" means the account in the name of the
Fund, which is provided for in Section 3.2 below.
1.6 "DOMESTIC SECURITIES DEPOSITORY" means The Depository
Trust Company and any other clearing agency registered with the
Securities and Exchange Commission under the Securities Exchange
Act of 1934, which acts as a securities depository.
1.7 "ELIGIBLE DOMESTIC BANK" means a bank as defined in the
1940 Act.
1.8 "ELIGIBLE FOREIGN ENTITY" means any banking institution,
trust company or other entity organized under the laws of a
country other than the United States which is eligible under the
1940 Act to act as a custodian for securities and other assets of
the Fund held outside the United States.
1.9 "FOREIGN SECURITIES DEPOSITORY" means a foreign
securities depository or clearing agency as defined in the 1940
Act.
1.10 "1940 ACT" means the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder.
1.11 "ORAL INSTRUCTIONS" means instructions orally
transmitted to and accepted by Custodian which are (a) reasonably
believed by Custodian to have been given by an Authorized Person,
(b) recorded and kept among the records of Custodian made in the
ordinary course of business, and (c) completed in accordance with
Custodian's requirements from time to time as to content of
instructions and their manner and timeliness of delivery by the
Fund.
1.12 "PROPER INSTRUCTIONS" means Oral Instructions or
Written Instructions. Proper Instructions may be continuing
Written Instructions when deemed appropriate by the Fund and
Custodian.
1.13 "SECURITIES DEPOSITORY" means any Domestic Securities
Depository or Foreign Securities Depository.
1.14 "SHARES" means shares of the capital stock of the Fund,
including any preferred stock.
1.15 "WRITTEN INSTRUCTIONS" means written communications
received by Custodian that are (a) reasonably believed by
Custodian to have been signed or sent by an Authorized Person,
(b) sent or transmitted by letter, facsimile, central processing
unit connection, on-line terminal or magnetic tape, and (c)
completed in accordance with Custodian's requirements from time
to time as to content of instructions and their manner and
timeliness of delivery by the Fund.
ARTICLE II
APPOINTMENT OF CUSTODIAN
2.1 APPOINTMENT. The Fund hereby appoints Custodian as
custodian of all such securities, funds and other assets of the
Fund as may be acceptable to Custodian and from time to time
delivered to it by the Fund or others for the account of the
Fund.
2.2 ACCEPTANCE. Custodian hereby accepts appointment as such
custodian and agrees to perform the duties thereof as hereinafter
set forth.
ARTICLE III
CUSTODY OF SECURITIES, FUNDS AND OTHER ASSETS
3.1 SEGREGATION. All securities and non-cash property of the
Fund in the possession of Custodian (other than securities
maintained by Custodian with a sub-custodian appointed pursuant
to this Agreement or in a Securities Depository or Book-Entry
System) shall be physically segregated from other such securities
and non-cash property in the possession of Custodian. All cash,
securities and other non-cash property of the Fund shall be
identified as belonging to the Fund.
3.2 CUSTODY ACCOUNT. (a) Custodian shall open and maintain
in its trust department a custody account in the name of the
Fund, subject only to draft or order of Custodian, in which
Custodian shall enter and carry all securities, funds and other
assets of the Fund which are delivered to Custodian and accepted
by it.
(b) If Custodian at any time fails to receive any of the
documents referred to in Section 3.10(a) below, then, until such
time as it receives such document, it shall not be obligated to
receive any securities of the Fund into the Custody Account and
shall be entitled to return to the Fund any securities of the
Fund that it is holding.
3.3 SECURITIES IN PHYSICAL FORM. Custodian may, but shall
not be obligated to, hold securities that may be held only in
physical form.
3.4 DISCLOSURE TO ISSUERS OF SECURITIES. Custodian is
authorized to disclose the Fund's name, address and securities
positions in the Custody Account to the issuers of such
securities when requested by them to do so.
3.5 APPOINTMENT OF DOMESTIC SUB-CUSTODIANS. In its
discretion, Custodian may at any time and from time to time
appoint, and at any time remove, any Eligible Domestic Bank as
sub-custodian to hold securities and other assets of the Fund
maintained in the United States and to carry out such other
provisions of this Agreement as it may determine. The appointment
of any such sub-custodian shall be at Custodian's expense and
shall not relieve Custodian of any of its obligations or
liabilities under this Agreement.
3.6 APPOINTMENT OF FOREIGN SUB-CUSTODIANS. (a) At any time
and from time to time, Custodian in its discretion may appoint in
accordance with the 1940 Act (i) any overseas branch of any
Eligible Domestic Bank, or (ii) any Eligible Foreign Entity, in
each case as a foreign sub-custodian for securities and other
assets of the Fund that are maintained outside the United States,
provided, however, that any such appointment shall be subject to
prior written approval by the Fund of (A) the agreement pursuant
to which Custodian proposes to employ such overseas branch or
Eligible Foreign Entity, and (B) in the case of any Eligible
Foreign Entity, the country or countries in which such Foreign
Eligible Entity is to be authorized to hold securities and other
assets of the Fund.
(b) Set forth on Exhibit D hereto are the foreign sub-
custodians appointed pursuant to Section 3.6(a) above and the
countries in which pursuant to Section 3.6(a) above they may hold
securities and other assets of the Fund. Exhibit D shall be
revised from time to time as foreign sub-custodians and countries
are added or deleted.
(c) The Fund shall inform Custodian sufficiently in advance
of a proposed investment which is to be held in a country not
listed in Exhibit D hereto to allow the Fund to consider and give
the approvals required under Section 3.6(a) above and for
Custodian to put appropriate arrangements in place with a foreign
sub-custodian. If the Fund invests in a security or other asset
to be held outside the United States before such approvals are
given and such arrangements are put in place, then such security
or other asset may be held by such agent as Custodian, in its
discretion, may appoint.
(d) Notwithstanding anything to the contrary in Section 6.1
below or elsewhere in this Agreement, Custodian shall have no
greater liability to the Fund for the actions or omissions of any
foreign sub-custodian appointed pursuant to this Agreement (or
any agent appointed pursuant to Section 3.6(c) above) than any
such foreign sub-custodian (or such agent) has to Custodian, and
Custodian shall not be required to discharge any such liability
which may be imposed on it unless and until such foreign
sub-custodian (or agent) has effectively indemnified Custodian
against it or has otherwise discharged its liability to Custodian
in full.
(e) Upon the request of the Fund, Custodian shall annually
furnish to the Fund information concerning all foreign sub-
custodians appointed pursuant to this Agreement which shall be
similar in kind and scope to that furnished to the Fund in
connection with the initial approval by the Fund of the
agreements pursuant to which Custodian employs such foreign sub-
custodians or as otherwise required by the 1940 Act.
3.7 APPOINTMENT OF OTHER AGENTS. Custodian may employ other
suitable agents, which may include affiliates of Custodian such
as Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx") or Bear, Xxxxxxx
Securities Corp., both of which are securities broker-dealers,
provided, however, that Custodian shall not employ Bear Xxxxxxx
to hold any securities purchased by the Fund under any repurchase
agreement between them, whether now or hereafter in effect. The
appointment of any agent pursuant to this Section 3.7 shall not
relieve Custodian of any of its obligations or liabilities under
this Agreement.
3.8 BANK ACCOUNTS. In its discretion and from time to time
Custodian may open and maintain for the Fund one or more demand
deposit accounts with any Eligible Domestic Bank (any such
accounts to be in the name of Custodian and subject only to its
draft or order), provided, however, that the opening and
maintenance of any such account shall be at Custodian's expense
and shall not relieve Custodian of any of its obligations or
liabilities under this Agreement.
3.9 DELIVERY OF ASSETS TO CUSTODIAN. Provided they are
acceptable to Custodian, the Fund shall deliver to Custodian the
Fund's securities, funds and other assets, including (a) payments
of income, payments of principal and capital distributions
received by the Fund with respect to securities, funds or other
assets owned by the Fund at any time during the term of this
Agreement, and (b) funds received by the Fund for its issuance,
at any time during such term, of Shares or other securities.
Custodian shall not be under any duty or obligation to require
the Fund to deliver to it any securities or other assets owned by
the Fund and shall have no responsibility or liability for or on
account of securities or other assets not so delivered.
3.10 DOMESTIC SECURITIES DEPOSITORIES AND BOOK-ENTRY
SYSTEMS. Custodian and any sub-custodian appointed pursuant to
Section 3.5 above may deposit and/or maintain securities of the
Fund in a Domestic Securities Depository or in a Book-Entry
System, subject to the following provisions:
(a) Prior to a deposit of securities of the Fund in any
Domestic Securities Depository or Book-Entry System, the Fund
shall deliver to Custodian a resolution of the Board of Directors
of the Fund, certified by an officer of the Fund, authorizing and
instructing Custodian (and any sub-custodian appointed pursuant
to Section 3.5 above) on an on-going basis to deposit in such
Domestic Securities Depository or Book-Entry System all
securities eligible for deposit therein and to make use of such
Domestic Securities Depository or Book-Entry System to the extent
possible and practical in connection with the performance of its
obligations hereunder (or under the applicable sub-custody
agreement in the case of such sub-custodian), including, without
limitation, in connection with settlements of purchases and sales
of securities, loans of securities, and deliveries and returns of
collateral consisting of securities.
(b) Securities of the Fund kept in a Book-Entry System or
Domestic Securities Depository shall be kept in an account
("Depository Account") of Custodian (or of any sub-custodian
appointed pursuant to Section 3.5 above) in such Book-Entry
System or Domestic Securities Depository which includes only
assets held by Custodian (or such sub-custodian) as a fiduciary,
custodian or otherwise for customers.
(c) The records of Custodian with respect to securities of
the Fund maintained in a Book-Entry System or Domestic Securities
Depository shall at all times identify such securities as
belonging to the Fund.
(d) If securities purchased by the Fund are to be held in a
Book-Entry System or Domestic Securities Depository, Custodian
(or any sub-custodian appointed pursuant to Section 3.5 above)
shall pay for such securities upon (i) receipt of advice from the
Book-Entry System or Domestic Securities Depository that such
securities have been transferred to the Depository Account, and
(ii) the making of an entry on the records of Custodian (or of
such sub-custodian) to reflect such payment and transfer for the
account of the Fund. If securities sold by the Fund are held in a
Book-Entry System or Domestic Securities Depository, Custodian
(or such sub-custodian) shall transfer such securities upon (A)
receipt of advice from the Book-Entry System or Domestic
Securities Depository that payment for such securities has been
transferred to the Depository Account, and (B) the making of an
entry on the records of Custodian (or of such sub-custodian) to
reflect such transfer and payment for the account of the Fund.
(e) Custodian shall provide the Fund with copies of any
report obtained by Custodian (or by any sub-custodian appointed
pursuant to Section 3.5 above) from a Book-Entry System or
Domestic Securities Depository in which securities of the Fund
are kept on the internal accounting controls and procedures for
safeguarding securities deposited in such Book-Entry System or
Domestic Securities Depository.
(f) At its election, the Fund shall be subrogated to the
rights of Custodian (or of any sub-custodian appointed pursuant
to Section 3.5 above) with respect to any claim against a
Book-Entry System or Domestic Securities Depository or any other
person for any loss or damage to the Fund arising from the use of
such Book-Entry System or Domestic Securities Depository, if and
to the extent that the Fund has not been made whole for any such
loss or damage.
3.11 FOREIGN SECURITIES DEPOSITORIES. Custodian or any sub-
custodian appointed pursuant to Section 3.6 above may maintain
securities of the Fund in any Foreign Securities Depository in
accordance with the 1940 Act. Set forth on Exhibit D hereto are
the Foreign Securities Depositories that Custodian or any such
sub-custodian are authorized in accordance with the 1940 Act to
employ. Exhibit D shall be revised from time to time as Foreign
Securities Depositories are added or deleted.
3.12 RELATIONSHIP WITH SECURITIES DEPOSITORIES. No Book-
Entry System, Securities Depository, or other securities
depository or clearing agency (whether foreign or domestic) which
it is or may become standard market practice to use for the
comparison and settlement of trades in securities shall be an
agent or sub-contractor of Custodian for purposes of Section 3.7
above or otherwise.
3.13 PAYMENTS FROM CUSTODY ACCOUNT. Upon receipt of Proper
Instructions but subject to its right to foreclose upon and
liquidate collateral pledged to it pursuant to Section 7.3 below,
Custodian shall make payments from the Custody Account, but only
in the following cases, provided, first, that there are
sufficient funds in the Custody Account to make such payments,
whether belonging to the Fund or advanced to it by Custodian in
its sole and absolute discretion as set forth in Section 3.19
below, and, second, that after the making of such payments, the
Fund would not be in violation of any margin or other
requirements agreed upon pursuant to Section 3.19 below:
(a) For the purchase of securities for the Fund but only (i)
in the case of securities (other than options on securities,
futures contracts and options on futures contracts), against the
delivery to Custodian (or any sub-custodian appointed pursuant to
this Agreement) of such securities registered as provided in
Section 3.21 below or in proper form for transfer or, if the
purchase of such securities is effected through a Book-Entry
System or Domestic Securities Depository, in accordance with the
conditions set forth in Section 3.10 above, and (ii) in the case
of options, futures contracts and options on futures contracts,
against delivery to Custodian (or such sub-custodian) of evidence
of title thereto in favor of the Fund, the Custodian, any such
sub-custodian, or any nominee referred to in Section 3.21 below;
(b) In connection with the conversion, exchange or
surrender, as set forth in Section 3.14(f) below, of securities
owned by the Fund;
(c) For transfer in accordance with the provisions of any
agreement among the Fund, Custodian and a securities
broker-dealer, relating to compliance with rules of The Options
Clearing Corporation and of any registered national securities
exchange (or of any similar organization or organizations)
regarding escrow or other arrangements in connection with
transactions of the Fund;
(d) For transfer in accordance with the provisions of any
agreement among the Fund, Custodian and a futures commission
merchant, relating to compliance with the rules of the Commodity
Futures Trading Commission and/or any contract market (or any
similar organization or organizations) regarding margin or other
deposits in connection with transactions of the Fund;
(e) For the funding of any time deposit (whether
certificated or not) or other interest-bearing account with any
banking institution (including Custodian), provided that
Custodian shall receive and retain such certificate, advice,
receipt or other evidence of deposit (if any) as such banking
institution may deliver with respect to any such deposit or
account;
(f) For the purchase from a banking or other financial
institution of loan participations, but only if Custodian has in
its possession a copy of the agreement between the Fund and such
banking or other financial institution with respect to the
purchase of such loan participations and provided that Custodian
shall receive and retain such participation certificate or other
evidence of participation (if any) as such banking or other
financial institution may deliver with respect to any such loan
participation;
(g) For the purchase and/or sale of foreign currencies or of
options to purchase and/or sell foreign currencies, for spot or
future delivery, for the account of the Fund pursuant to
contracts between the Fund and any banking or other financial
institution (including Custodian, any sub-custodian appointed
pursuant to this Agreement and any affiliate of Custodian);
(h) For transfer to a securities broker-dealer as margin for
a short sale of securities for the Fund, or as payment in lieu of
dividends paid on securities sold short for the Fund;
(i) To the Fund's dividend disbursing agent, for the payment
as provided in Article IV below of (i) any dividends, capital
gain distributions or other distributions declared on the Shares,
and (ii) any payments due on or with respect to other securities
issued by the Fund;
(j) For the payment as provided in Article IV below of the
redemption price of Shares;
(k) For the payment of any expense or liability incurred by
the Fund, including but not limited to the following payments for
the account of the Fund: interest, taxes, and administration,
investment advisory, accounting, auditing, transfer agent,
custodian, trustee and legal fees, and other operating expenses
of the Fund; in all cases, whether or not such expenses are to be
in whole or in part capitalized or treated as deferred expenses;
(l) For the payment of any amounts due pursuant to the terms
of interest rate transactions entered into by the Fund, including
but not limited to swaps, caps, floors and collars; and
(m) For any other proper purpose, but only upon receipt of
Proper Instructions, specifying the amount and purpose of such
payment, certifying such purpose to be a proper purpose of the
Fund, and naming the person or persons to whom such payment is to
be made.
3.14 DELIVERIES FROM CUSTODY ACCOUNT. Upon receipt of Proper
Instructions but subject to its right to foreclose upon and
liquidate collateral pledged to it pursuant to Section 7.3 below,
Custodian shall release and deliver securities and other assets
from the Custody Account, but only in the following cases,
provided, first, that there are sufficient amounts and types of
securities or other assets in the Custody Account to make such
delivery, and, second, that after the making of such delivery,
the Fund would not be in violation of any margin or other
requirements agreed upon pursuant to Section 3.19 below:
(a) Upon the sale of securities for the account of the Fund
but, subject to Section 3.15 below, only against receipt of
payment therefor or, if such sale is effected through a
Book-Entry System or Domestic Securities Depository, in
accordance with the provisions of Section 3.10 above;
(b) To an offeror's depository agent in connection with
tender or other similar offers for securities of the Fund;
provided that, in any such case, the funds or other consideration
for such securities is to be delivered to Custodian;
(c) To the issuer thereof or its agent when such securities
are called, redeemed or otherwise become payable, provided that
in any such case the funds or other consideration for such
securities is to be delivered to Custodian;
(d) To the issuer thereof or its agent for exchange for a
different number of certificates or other evidence representing
the same aggregate face amount or number of units; provided that,
in any such case, the new securities are to be delivered to
Custodian;
(e) To the securities broker through whom securities are
being sold for the Fund, for examination in accordance with the
"street delivery" custom;
(f) For exchange or conversion pursuant to any plan of
merger, consolidation, recapitalization, reorganization or
readjustment of the issuer of such securities, or pursuant to
provisions for conversion contained in such securities, or
pursuant to any deposit agreement, including surrender or receipt
of underlying securities in connection with the issuance or
cancellation of depository receipts; provided that, in any such
case, the new securities and funds, if any, are to be delivered
to Custodian;
(g) In the case of warrants, rights or similar securities,
to the issuer of such warrants, rights or similar securities, or
its agent, upon the exercise thereof, provided that, in any such
case, the new securities and funds, if any, are to be delivered
to Custodian;
(h) To the borrower thereof, or its agent, in connection
with any loans of such securities for the Fund pursuant to any
securities loan agreement entered into by the Fund, but only
against receipt by Custodian of such collateral as is required
under such securities loan agreement;
(i) To any lender, or its agent, as collateral for any
borrowings from such lender by the Fund that require a pledge of
assets of the Fund, but only against receipt by Custodian of the
amounts borrowed;
(j) Pursuant to any authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization of the
Fund or the Fund;
(k) For delivery in accordance with the provisions of any
agreement among the Fund, Custodian and a securities
broker-dealer, relating to compliance with the rules of The
Options Clearing Corporation and of any registered national
securities exchange (or of any similar organization or
organizations) regarding escrow or other arrangements in
connection with transactions of the Fund;
(l) For delivery in accordance with the provisions of any
agreement among the Fund, Custodian, and a futures commission
merchant, relating to compliance with the rules of the Commodity
Futures Trading Commission and/or any contract market (or any
similar organization or organizations) regarding margin or other
deposits in connection with transactions of the Fund;
(m) For delivery to a securities broker-dealer as margin for
a short sale of securities for the Fund;
(n) To the issuer of American Depositary Receipts or
International Depositary Receipts (hereinafter, collectively,
"ADRs") for such securities, or its agent, against a written
receipt therefor adequately describing such securities, provided
that such securities are delivered together with instructions to
issue ADRs in the name of Custodian or its nominee and to deliver
such ADRs to Custodian;
(o) In the case of ADRs, to the issuer thereof, or its
agent, against a written receipt therefor adequately describing
such ADRs, provided that such ADRs are delivered together with
instructions to deliver the securities underlying such ADRs to
Custodian or an agent of Custodian; or
(p) To the Fund's counterparty, or such counterparty's
agent, as collateral pursuant to the terms of interest rate
transactions entered into by the Fund, including but not limited
to swaps, caps, floors and collars; and
(q) For any other proper purpose, but only upon receipt of
Proper Instructions, specifying the securities or other assets to
be delivered, setting forth the purpose for which such delivery
is to be made, certifying such purpose to be a proper purpose of
the Fund, and naming the person or persons to whom delivery of
such securities or other assets is to be made.
3.15 DELIVERY PRIOR TO FINAL PAYMENT. When instructed by the
Fund to deliver securities against payment, Custodian shall be
entitled, but only if in accordance with generally accepted
market practice, to deliver such securities prior to actual
receipt of final payment therefor and, exclusively in the case of
securities in physical form, prior to receipt of payment
therefor. In any such case, the Fund shall bear the risk that
final payment for such securities may not be made or that such
securities may be returned or otherwise held or disposed of by or
through the person to whom they were delivered, and Custodian
shall have no liability for any of the foregoing.
3.16 CREDIT PRIOR TO FINAL PAYMENT. In its sole discretion
and from time to time, Custodian may credit the Custody Account,
prior to actual receipt of final payment thereof, with (a)
proceeds from the sale of securities which it has been instructed
to deliver against payment, (b) proceeds from the redemption of
securities or other assets in the Custody Account, and (c) income
from securities, funds or other assets in the Custody Account.
Any such credit shall be conditional upon actual receipt by
Custodian of final payment and may be reversed if final payment
is not actually received in full. Custodian may, in its sole
discretion and from time to time, permit the Fund to use funds so
credited to the Custody Account in anticipation of actual receipt
of final payment. Any funds so used shall constitute an advance
subject to Section 3.19 below.
3.17 DEFINITION OF FINAL PAYMENT. For purposes of this
Agreement, "final payment" means payment in funds which are (or
have become) immediately available, under applicable law are
irreversible, and are not subject to any security interest, xxxx,
xxxx or other encumbrance.
3.18 PAYMENTS AND DELIVERIES OUTSIDE UNITED STATES. Notwith-
standing anything to the contrary that may be required by Section
3.13 or Section 3.14 above, or elsewhere in this Agreement, in
the case of securities and other assets maintained outside the
United States and in the case of payments made outside the United
States, Custodian and any sub-custodian appointed pursuant to
this Agreement may receive and deliver such securities or other
assets, and may make such payments, in accordance with the laws,
regulations, customs, procedures and practices applicable in the
relevant local market outside the United States.
3.19 CLEARING CREDIT. Custodian may, in its sole discretion
and from time to time, advance funds to the Fund to facilitate
the settlement of the Fund's transactions in the Custody Account.
Any such advance (a) shall be repayable immediately upon demand
made by Custodian, (b) shall be fully secured as provided in
Section 7.3 below, and (c) shall bear interest at such rate, and
be subject to such other terms and conditions, as Custodian and
the Fund may agree.
3.20 ACTIONS NOT REQUIRING PROPER INSTRUCTIONS. Unless
otherwise instructed by the Fund, Custodian shall with respect to
all securities and other assets held for the Fund:
(a) Subject to Section 6.4 below, receive into the Custody
Account any funds or other property, including payments of
principal, interest and dividends, due and payable on or on
account of such securities and other assets;
(b) Deliver securities of the Fund to the issuers of such
securities or their agents for the transfer thereof into the name
of the Fund, Custodian or any of the nominees referred to in
Section 3.21 below;
(c) Endorse for collection, in the name of the Fund, checks,
drafts and other negotiable instruments;
(d) Surrender interim receipts or securities in temporary
form for securities in definitive form;
(e) Execute, as custodian, any necessary declarations or
certificates of ownership under the federal income tax laws of
the United States, or the laws or regulations of any other taxing
authority, in connection with the transfer of such securities or
other assets or the receipt of income or other payments with
respect thereto;
(f) Receive and hold for the Fund all rights and similar
securities issued with respect to such securities or other
assets;
(g) As may be required in the execution of Proper
Instructions, transfer funds from the Custody Account to any
demand deposit account maintained by Custodian pursuant to
Section 3.8 above; and
(h) In general, attend to all non-discretionary details in
connection with the sale, exchange, substitution, purchase and
transfer of, and other dealings in, such securities and other
assets.
3.21 REGISTRATION AND TRANSFER OF SECURITIES. All
securities held for the Fund that are issuable only in bearer
form shall be held by Custodian in that form, provided that any
such securities shall be held in a Securities Depository or
Book-Entry System if eligible therefor. All other securities and
all other assets held for the Fund may be registered in the name
of (a) Custodian as agent, (b) any sub-custodian appointed
pursuant to this Agreement, (c) any Securities Depository, or (d)
any nominee or agent of any of them. The Fund shall furnish to
Custodian appropriate instruments to enable Custodian to hold or
deliver in proper form for transfer, or to register as in this
Section 3.21 provided, any securities or other assets delivered
to Custodian which are registered in the name of the Fund.
3.22 RECORDS. (a) Custodian shall maintain complete and
accurate records with respect to securities, funds and other
assets held for the Fund, including (i) journals or other records
of original entry containing an itemized daily record in detail
of all receipts and deliveries of securities and all receipts and
disbursements of funds; (ii) ledgers (or other records)
reflecting (A) securities in transfer, if any, (B) securities in
physical possession, (C) monies and securities borrowed and
monies and securities loaned (together with a record of the
collateral therefor and substitutions of such collateral), (D)
dividends and interest received, and (E) dividends receivable and
interest accrued; and (iii) cancelled checks and bank records
related thereto. Custodian shall keep such other books and
records with respect to securities, funds and other assets of the
Fund which are held hereunder as the Fund may reasonably request.
(b) All such books and records maintained by Custodian shall
(i) be maintained in a form acceptable to the Fund and in
compliance with rules and regulations of the Securities and
Exchange Commission, (ii) be the property of the Fund and at all
times during the regular business hours of Custodian be made
available upon request for inspection by duly authorized
officers, employees or agents of the Fund and employees or agents
of the Securities and Exchange Commission, and (iii) if required
to be maintained under the 1940 Act, be preserved for the periods
prescribed therein.
3.23 ACCOUNT REPORTS BY CUSTODIAN. Custodian shall furnish
the Fund with a daily activity statement, including a summary of
all transfers to or from the Custody Account (in the case of
securities and other assets maintained in the United States, on
the day following such transfers). At least monthly and from time
to time, Custodian shall furnish the Fund with a detailed
statement of the securities, funds and other assets held for the
Fund under this Agreement.
3.24 OTHER REPORTS BY CUSTODIAN. Custodian shall provide the
Fund with such reports as the Fund may reasonably request from
time to time on the internal accounting controls and procedures
for safeguarding securities which are employed by Custodian or
any sub-custodian appointed pursuant to this Agreement.
3.25 PROXIES AND OTHER MATERIALS. (a) Unless otherwise
instructed by the Fund, Custodian shall promptly deliver to the
Fund all notices of meetings, proxies and proxy materials which it
receives regarding securities held in the Custody Account. Before
delivering them to the Fund, Custodian shall cause all proxies
relating to such securities which are not registered in the name
of the Fund to be promptly executed by the registered holder of
such securities, without indication of the manner in which such
proxies are to be voted. Unless otherwise instructed by the Fund,
neither Custodian nor any of its agents shall exercise any voting
rights with respect to securities held hereunder.
(b) Unless otherwise instructed by the Fund, Custodian shall
promptly transmit to the Fund all other written information
received by Custodian from issuers of securities held in the
Custody Account. With respect to tender or exchange offers for
such securities, Custodian shall promptly transmit to the Fund
all written information received by Custodian from the issuers of
the securities whose tender or exchange is sought and from the
party (or its agents) making the tender or exchange offer. If the
Fund desires to take action with respect to any tender offer,
exchange offer or other similar transaction, the Fund shall
notify Custodian (i) in the case of securities maintained outside
the United States, such number of Business Days prior to the date
on which Custodian is to take such action as will allow Custodian
to take such action in the relevant local market for such
securities in a timely fashion, and (ii) in the case of all other
securities, at least five Business Days prior to the date on
which Custodian is to take such action.
3.26 CO-OPERATION. Custodian shall cooperate with and supply
necessary information to the entity or entities appointed by the
Fund to keep the books of account of the Fund and/or to compute
the value of the assets of the Fund.
ARTICLE IV
REDEMPTION OF FUND SHARES;
DIVIDENDS AND OTHER DISTRIBUTIONS
4.1 TRANSFER OF FUNDS. From such funds as may be available
for the purpose in the Custody Account, and upon receipt of
Proper Instructions specifying that the funds are required to
redeem Shares or to pay dividends or other distributions to
holders of Shares or to make payments due on or with respect to
other securities issued by the Fund, Custodian shall transfer to
the Fund's dividend disbursing agent each amount specified in
such Proper Instructions.
4.2 SOLE DUTY OF CUSTODIAN. Custodian's sole obligation with
respect to the redemption of Shares, the payment of dividends and
other distributions thereon and the payment of amounts due on or
with respect to other securities issued by the Fund shall be its
obligation set forth in Section 4.1 above, and Custodian shall
not be required to make any payments to the various holders from
time to time of Shares or of such other securities nor shall
Custodian be responsible for the payment or distribution by the
Fund, or the Fund's dividend disbursing agent, of any amount paid
by Custodian to the account of the Fund or such agent in
accordance with such Proper Instructions.
ARTICLE V
SEGREGATED ACCOUNTS
Upon receipt of Proper Instructions to do so, Custodian
shall establish and maintain a segregated account or accounts for
and on behalf of the Fund, into which account or accounts may be
transferred funds and/or securities, including securities
maintained in a Securities Depository:
(a) in accordance with the provisions of any agreement among
the Fund, Custodian and a securities broker-dealer (or any
futures commission merchant), relating to compliance with the
rules of The Options Clearing Corporation or of any registered
national securities exchange (or the Commodity Futures Trading
Commission or any registered contract market), or of any similar
organization or organizations, regarding escrow or other
arrangements in connection with transactions of the Fund,
(b) for purposes of segregating funds or securities in
connection (i) with securities options purchased or written by
the Fund or in connection with financial futures contracts (or
options thereon) purchased or sold by the Fund, or (ii) interest
rate transactions entered into by the Fund,
(c) which constitute collateral for loans of securities made
by the Fund,
(d) for purposes of compliance by the Fund with requirements
under the 1940 Act for the maintenance of segregated accounts by
registered management investment companies in connection with
reverse repurchase agreements, when-issued, delayed delivery and
firm commitment transactions, and short sales of securities, and
(e) for other proper purposes, but only upon receipt of
Proper Instructions, specifying the purpose or purposes of such
segregated account and certifying such purposes to be proper
purposes of the Fund.
ARTICLE VI
CONCERNING THE CUSTODIAN
6.1 STANDARD OF CARE. Custodian shall be held to the
exercise of reasonable care in carrying out its obligations under
this Agreement, and shall be without liability to the Fund or the
Fund for any loss, damage, cost, expense (including attorneys'
fees and disbursements), liability or claim which does not arise
from willful misfeasance, bad faith or negligence on the part of
Custodian. Custodian shall be entitled to rely on and may act
upon advice of counsel in all matters, and shall be without
liability for any action reasonably taken or omitted pursuant to
such advice. In no event shall Custodian be liable for special,
incidental or consequential damages, even if Custodian has been
advised of the possibility of such damages, or be liable in any
manner whatsoever for any action taken or omitted upon
instructions from the Fund or any agent of the Fund.
6.2 ACTUAL COLLECTION REQUIRED. Custodian shall not be
liable for, or considered to be the custodian of, any funds
belonging to the Fund or any money represented by a check, draft
or other instrument for the payment of money, until Custodian or
its agents actually receive such funds or collect on such
instrument.
6.3 NO RESPONSIBILITY FOR TITLE, ETC. So long as and to the
extent that it is in the exercise of reasonable care, Custodian
shall not be responsible for the title, validity or genuineness
of any assets or evidence of title thereto received or delivered
by it or its agents.
6.4 LIMITATION ON DUTY TO COLLECT. Custodian shall promptly
notify the Fund whenever any money or property due and payable
from or on account of any securities or other assets held
hereunder for the Fund is not timely received by it. Custodian
shall not, however, be required to enforce collection, by legal
means or otherwise, of any such money or other property not paid
when due, but shall receive the proceeds of such collections as
may be effected by it or its agents in the ordinary course of
Custodian's custody and safekeeping business or of the custody
and safekeeping business of such agents.
6.5 EXPRESS DUTIES ONLY. Custodian shall have no duties or
obligations whatsoever except such duties and obligations as are
specifically set forth in this Agreement, and no covenant or
obligation shall be implied in this Agreement against Custodian.
Custodian shall have no discretion whatsoever with respect to the
management, disposition or investment of the Custody Account and
is not a fiduciary to the Fund or the Fund. In particular,
Custodian shall not be under any obligation at any time to
monitor or to take any other action with respect to compliance by
the Fund or the Fund with the 1940 Act, the provisions of the
Fund's charter documents or by-laws, or the Fund's investment
objectives, policies and limitations as in effect from time to
time.
ARTICLE VII
INDEMNIFICATION
7.1 INDEMNIFICATION. The Fund shall indemnify and hold
harmless Custodian, any sub-custodian appointed pursuant to this
Agreement and any nominee of any of them, from and against any
loss, damages, cost, expense (including attorneys' fees and
disbursements), liability (including, without limitation,
liability arising under the Securities Act of 1933, the
Securities Exchange Act of 1934, the 1940 Act, and any federal,
state or foreign securities and/or banking laws) or claim arising
directly or indirectly (a) from the fact that securities or other
assets in the Custody Account are registered in the name of any
such nominee, or (b) from any action or inaction by Custodian or
such sub-custodian or nominee (i) at the request or direction of
or in reliance on the advice of the Fund or any of its agents, or
(ii) upon Proper Instructions, or (c) generally, from the
performance of its obligations under this Agreement, provided
that Custodian, any such sub-custodian or any nominee of any of
them shall not be indemnified and held harmless from and against
any such loss, damage, cost, expense, liability or claim arising
from willful misfeasance, bad faith or negligence on the part of
Custodian or any such sub-custodian or nominee.
7.2 INDEMNITY TO BE PROVIDED. If the Fund requests Custodian
to take any action with respect to securities or other assets of
the Fund, which may, in the opinion of Custodian, result in
Custodian or its nominee becoming liable for the payment of money
or incurring liability of some other form, Custodian shall not be
required to take such action until the Fund shall have provided
indemnity therefor to Custodian in an amount and form
satisfactory to Custodian.
7.3 SECURITY. As security for the payment of any present or
future obligation or liability of any kind which the Fund may
have to Custodian with respect to or in connection with the
Custody Account or this Agreement, the Fund hereby pledges to
Custodian all securities, funds and other assets of every kind
which are in the Custody Account or otherwise held for the Fund
pursuant to this Agreement, and hereby grants to Custodian a
lien, right of set-off and continuing security interest in such
securities, funds and other assets.
ARTICLE VIII
FORCE MAJEURE
Custodian shall not be 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
reasonable control, including, without limitation, acts of God;
earthquakes; fires; floods; wars; civil or military disturbances;
sabotage; strikes; epidemics; riots; power failures; computer
failure and any such circumstances beyond its reasonable control
as may cause interruption, loss or malfunction of utility,
transportation, computer (hardware or software) or telephone
communication service; accidents; labor disputes; acts of civil
or military authority; actions by any governmental authority, de
jure or de facto; or inability to obtain labor, material,
equipment or transportation.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
9.1 REPRESENTATIONS OF THE FUND. The Fund represents and
warrants that (a) it has all necessary power and authority to
perform its obligations hereunder, (b) the execution and delivery
by it of this Agreement, and the performance by it of its
obligations hereunder, have been duly authorized by all necessary
action and will not violate any law, regulation, charter, by-law,
or other instrument, restriction or provision applicable to it or
by which it, or its assets, may be bound, and (c) this Agreement
constitutes a legal, valid and binding obligation of the Fund,
enforceable against it in accordance with its terms.
9.2 REPRESENTATIONS OF CUSTODIAN. Custodian represents and
warrants that (a) it has all necessary power and authority to
perform its obligations hereunder, (b) the execution and delivery
by it of this Agreement, and the performance by it of its
obligations hereunder, have been duly authorized by all necessary
action and will not violate any law, regulation, charter, by-law,
or other instrument, restriction or provision applicable to it or
by which it or its assets may be bound, and (c) this Agreement
constitutes a legal, valid and binding obligation of it,
enforceable against it in accordance with its terms.
ARTICLE X
COMPENSATION OF CUSTODIAN
The Fund shall pay Custodian such fees and charges as are
set forth in Exhibit C hereto, as such Exhibit C may from time to
time be revised by Custodian upon 14 days' prior written notice
to the Fund. Any annual fee payable by the Fund shall be
calculated on the basis of the total market value of the assets
in the Custody Account as determined on the last Business Day of
the month for which such fee is charged; and such fee, and any
transaction charges payable by the Fund, shall be paid monthly by
automatic deduction from the Custody Account. Out-of-pocket
expenses incurred by Custodian in the performance of its services
hereunder, and all other proper charges and disbursements of the
Custody Account, shall be charged to the Custody Account by
Custodian and paid therefrom.
ARTICLE XI
TAXES
11.1 TAXES PAYABLE BY THE FUND. Any and all taxes, including
any interest and penalties with respect thereto, which may be
levied or assessed under present or future laws or in respect of
the Custody Account or any income thereof shall be charged to the
Custody Account by Custodian and paid therefrom.
11.2 TAX RECLAIMS. Upon the written request of the Fund,
Custodian shall exercise, on behalf of the Fund, any tax reclaim
rights of the Fund which arise in connection with foreign
securities in the Custody Account.
ARTICLE XII
AUTHORIZED PERSONS; NOTICES
12.1 AUTHORIZED PERSONS. Custodian may rely upon and act in
accordance with any notice, confirmation, instruction or other
communication received by it from the Fund which is reasonably
believed by Custodian to have been given or signed on behalf of
the Fund by one of the Authorized Persons designated by the Fund
in Exhibit A hereto, as it may from time to time be revised. The
Fund may revise Exhibit A hereto at any time by notice in writing
to Custodian given in accordance with Section 12.4 below, but no
revision of Exhibit A hereto shall be effective until Custodian
actually receives such notice.
12.2 INVESTMENT ADVISERS. Custodian may also act in
accordance with any Written or Oral Instructions which are
reasonably believed by Custodian to have been given or signed by
one of the persons designated from time to time by any of the
investment advisers of the Fund specified in Exhibit B hereto (if
any) as it may from time to time be revised. The Fund may revise
Exhibit B hereto at any time by notice in writing to Custodian
given in accordance with Section 12.4 below, and each investment
adviser specified in Exhibit B hereto (if any) may at any time by
like notice designate an Authorized Person or remove an
Authorized Person previously designated by it, but no revision of
Exhibit B hereto (if any) and no designation or removal by such
investment adviser shall be effective until Custodian actually
receives such notice.
12.3 ORAL INSTRUCTIONS. Custodian may rely upon and act in
accordance with Oral Instructions. All Oral Instructions shall be
confirmed to Custodian in Written Instructions. However, if
Written Instructions confirming Oral Instructions are not
received by Custodian prior to a transaction, it shall in no way
affect the validity of the transaction authorized by such Oral
Instructions or the authorization given by an Authorized Person
to effect such transaction. Custodian shall incur no liability to
the Fund or the Fund in acting upon Oral Instructions. To the
extent such Oral Instructions vary from any confirming Written
Instructions, Custodian shall advise the Fund of such variance
but unless confirming Written Instructions are timely received,
such Oral Instructions shall govern.
12.4 ADDRESSES FOR NOTICES. Unless otherwise specified
herein, all demands, notices, instructions, and other
communications to be given hereunder shall be sent, delivered or
given to the recipient at the address, or the relevant telephone
number, set forth after its name hereinbelow:
IF TO THE FUND:
Managed Income Securities Plus Fund, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
IF TO CUSTODIAN:
Custodial Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Vice President - Trust Operations
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address as either party hereto shall have
provided to the other by notice given in accordance with this
Section 12.4. Writing shall include transmissions by or through
teletype, facsimile, central processing unit connection, on-line
terminal and magnetic tape.
12.5 REMOTE CLEARANCE. Written Instructions for the receipt,
delivery or transfer of securities may include, and Custodian
shall accept, Remote Clearance Instructions (as defined
hereinbelow) and Bulk Input Instructions (as defined
hereinbelow), provided that such Instructions are given in
accordance with the procedures prescribed by Custodian from time
to time as to content of instructions and their manner and
timeliness of delivery by Customer. Custodian shall be entitled
to conclusively assume that all Remote Clearance Instructions and
Bulk Input Instructions have been given by an Authorized Person,
and Custodian is hereby irrevocably authorized to act in
accordance therewith. For purposes of this Agreement, "Remote
Clearance Instructions" means instructions that are input
directly via a remote terminal which is located on the premises
of the Fund, or of an investment adviser named in Exhibit B
hereto, and linked to Custodian; and "Bulk Input Instructions"
means instructions that are input by bulk input computer tape
delivered to Custodian by messenger or transmitted to it via such
transmission mechanism as the Fund and Custodian shall from time
to time agree upon.
ARTICLE XIII
TERMINATION
Either party hereto may terminate this Agreement by giving
to the other party a notice in writing specifying the date of
such termination, which shall be not less than sixty (60) days
after the date of the giving of such notice. Upon the date set
forth in such notice this Agreement shall terminate, and
Custodian shall, upon receipt of a notice of acceptance by the
successor custodian, on that date (a) deliver directly to the
successor custodian or its agents all securities (other than
securities held in a Book-Entry System or Securities Depository)
and other assets then owned by the Fund and held by Custodian as
custodian, and (b) transfer any securities held in a Book-Entry
System or Securities Depository to an account of or for the
benefit of the Fund, provided that the Fund shall have paid to
Custodian all fees, expenses and other amounts to the payment or
reimbursement of which it shall then be entitled.
ARTICLE XIV
MISCELLANEOUS
14.1 BUSINESS DAYS. Nothing contained in this Agreement
shall require Custodian to perform any function or duty on a day
other than a Business Day.
14.2 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York,
without regard to the conflict of law principles thereof.
14.3 REFERENCES TO CUSTODIAN. The Fund shall not circulate
any printed matter which contains any reference to Custodian
without the prior written approval of Custodian, excepting
printed matter contained in the prospectus or statement of
additional information for the Fund and such other printed matter
as merely identifies Custodian as custodian for the Fund. The
Fund shall submit printed matter requiring approval to Custodian
in draft form, allowing sufficient time for review by Custodian
and its counsel prior to any deadline for printing.
14.4 NO WAIVER. No failure by either party hereto to
exercise, and no delay by such party in exercising, any right
hereunder shall operate as a waiver thereof. The exercise by
either party hereto of any right hereunder shall not preclude the
exercise of any other right, and the remedies provided herein are
cumulative and not exclusive of any remedies provided at law or
in equity.
14.5 AMENDMENTS. This Agreement cannot be changed orally and
no amendment to this Agreement shall be effective unless
evidenced by an instrument in writing executed by the parties
hereto.
14.6 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by the parties hereto on separate
counterparts, each of which shall be deemed an original but all
of which together shall constitute but one and the same
instrument.
14.7 SEVERABILITY. If any provision of this Agreement shall
be invalid, illegal or unenforceable in any respect under any
applicable law, the validity, legality and enforceability of the
remaining provisions shall not be affected or impaired thereby.
14.8 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by either party hereto
without the written consent of the other party. Any purported
assignment in violation of this Section 14.8 shall be void.
14.9 JURISDICTION. Any suit, action or proceeding with
respect to this Agreement may be brought in the Supreme Court of
the State of New York, County of New York, or in the United
States District Court for the Southern District of New York, and
the parties hereto hereby submit to the non-exclusive
jurisdiction of such courts for the purpose of any such suit,
action or proceeding, and hereby waive for such purpose any other
preferential jurisdiction by reason of their present or future
domicile or otherwise.
14.10 HEADINGS. The headings of sections in this Agreement
are for convenience of reference only and shall not affect the
meaning or construction of any provision of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed in its name and on its behalf by
its representative thereunto duly authorized, all as of the day
and year first above written.
MANAGED INCOME SECURITIES CUSTODIAL TRUST COMPANY
PLUS FUND, INC.
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------- ----------------------
Name: Xxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer Title: President
EXHIBIT A
AUTHORIZED PERSONS
Set forth below are the names and specimen signatures of the
persons authorized by the Fund to administer the Custody Account
of the Fund.
NAME SIGNATURE
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EXHIBIT B
INVESTMENT ADVISERS
-- Bear Xxxxxxx Fund Management Inc.
EXHIBIT C
CUSTODY FEES AND TRANSACTION CHARGES
All fees and charges set forth in this Exhibit C shall be
calculated and paid in the manner provided in Article X above.
DOMESTIC FEES. The Fund shall pay Custodian the following
fees for assets maintained in the United States ("Domestic
Assets") and charges for transactions in the United States, all
such fees and charges to be payable monthly:
(1) an annual fee of the greater of 0.01% (one basis point)
per annum of the value of the Domestic Assets in the Custody
Account or $6,000;
(2) a transaction charge of $15 for each receive or deliver
of book-entry securities into or from the Custody Account;
(3) a transaction charge of $25 for each receive or deliver
into or from the Custody Account of securities in physical form;
(4) a charge of $10 for each "free" transfer of funds from
the Custody Account; and
(5) a service charge for each holding of securities or other
assets sold by way of private placement or in such other manner
as to require services by Custodian which in its reasonable
judgment are materially in excess of those ordinarily required
for the holding of publicly traded securities in the United
States.
INTERNATIONAL FEES. The Fund shall pay Custodian fees for
assets maintained outside the United States ("Foreign Assets")
and charges for transactions outside the United States
(including, without limitation, charges for funds transfers and
tax reclaims) in accordance with such schedule of fees and
charges for each country in which Foreign Assets are held as
Custodian shall from time to time provide to the Fund. Any asset-
based fee shall be based upon the total market value of the
applicable Foreign Assets as determined on the last Business Day
of the month for which such fee is charged.
EXHIBIT D
APPROVED FOREIGN SUB-CUSTODIANS AND SECURITIES DEPOSITORIES
Foreign Sub-custodian Country(ies) Securities Depositories
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