ADMINISTRATIVE AND ACCOUNTING AGENCY AGREEMENT
THIS AGREEMENT is made as of February 27, 1999 by and between
BROWN BROTHERS HARRIMAN & 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:
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.
DELIVERY OF DOCUMENTS. The Funds will:
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.
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.
Notify the Administrator promptly of any matter affecting the performance by the
Administrator of its services under this Agreement.
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:
Provide an Assistant Treasurer to the Fund.
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.
Prepare and file the Securities and Exchange Commission's Form N-SAR.
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.
Assist the Funds' Treasurer with the Funds' federal, state and applicable local
tax preparation and reporting, including the following:
preparation of fiscal and excise tax distribution calculations;
preparation and filing of federal, state and any local income tax returns,
including tax return extension requests;
preparation of shareholder year end reporting statements;
provide the appropriate amounts and characterization of distributions declared
during the calendar year for Forms 1099 reporting;
periodically review and determine of distributions to be paid to shareholders;
consult with the Fund's Treasurer regarding potential passive foreign investment
companies ("PFICs");
consult with the Fund's Treasurer on various tax issues as they arise and with
the Fund's outside auditors when appropriate;
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.
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.
Report monthly to the Funds' Treasurer on compliance of the Funds' fidelity bond
coverage with Rule 17g-1 of the 1940 Act.
Report monthly to Treasurer on comparison of the Funds' actual shares
outstanding with its authorized shares.
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 requested.
Serve as recordkeeper and net asset value calculation agent responsible for
performing those functions as set forth in Section 4 below.
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).
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.
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:
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.
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.
Proper Instructions, including without limitation any information:
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
as to the existence, status and proper treatment of reserves, if any, authorized
by the Funds
as to the sources of quotations to be used in computing the net asset value,
including those listed in Appendix B hereto
as to the fair value to be assigned to any securities or other property for
which price quotations are not readily available
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.).
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 actions if received by the Administrator either (a)
from a source which t 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.
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 bill the Funds separately for any out-of-pocket
disbursements of the Administrator. Out-of-pocket disbursements shall include,
but shall not be 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.
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.
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:
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.
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,
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 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.
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
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.
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.
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.
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.
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.
NOTICES. Notices and other writings delivered or mailed postage prepaid to the
Fund addressed to the Fund at 153 East 53rd Street, New York, New York 10022 or
to such other address as the Fund may have designated to the Administrator in
writing, or to the Administrator at 40 Water Street, Boston, MA 02109,
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.
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.
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.
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.
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.
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.
BROWN BROTHERS HARRIMAN & CO. each of the Management Investment
Companies listed on the attached
Appendix A
By: /s/ Illegible By: /s/ Hal Liebes
------------------- -----------------------------
Name: Name: Hal Liebes
Title: Title: Senior Vice President
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 BROWN BROTHERS HARRIMAN & CO.
listed above
By: /s/ Hal Liebes By: /s/ Illegible
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Name: Hal Liebes Name:
Title: Senior Vice President Title: