Exhibit 99.2(k)(x)
January 24, 2005
Managed High Yield Plus Fund, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx XX 00000
This document will serve as the agreement (the "Agreement") between The Xxxxxx
Group, Inc. ("The Xxxxxx Group") and Managed High Yield Plus Fund Inc. (the
"Fund"), pursuant to which The Xxxxxx Group will provide the services set forth
below in connection with the Fund's rights offering, which is currently
scheduled to commence in late January or early February 2005.
1. DESCRIPTION OF SERVICES
a) The services to be provided by The Xxxxxx Group under this Agreement
include, but are not limited to:
i) The contacting of banks, brokers and intermediaries to
determine the number of beneficial owners serviced by each
and the quantities of offering documents necessary;
ii) The distribution of the offering documents to banks,
brokers, and intermediaries and the forwarding of additional
materials as requested;
iii) The printing of documents as requested;
iv) The set up of a dedicated toll-free number to respond to
inquiries, provide assistance to shareholders, and monitor
the response to the offer;
v) The enclosing and mailing of the offering documents to
interested shareholders; and
vi) Strategic advice relating to the offering and providing
periodic reports regarding the offering as well as
intelligence reports concerning the participation of brokers
and arbitrageurs in the offering, as requested.
b) If requested by the Fund, The Xxxxxx Group will, for an additional fee
(set forth below), proactively contact registered shareholders and/or
non- objecting beneficial holders (NOBOs) to help promote a high level
of participation in the offer.
2. FEES
a) The Xxxxxx Group agrees to perform the services described above for a
base fee of $7,000, plus out-of-pocket expenses. The base fee shall be
paid at such time as this Agreement is executed.
b) The Fund will reimburse The Xxxxxx Group for reasonable and documented
out-of-pocket expenses, which may include postage, FedEx, Messengers,
telephone and other related items approved by the Fund. Any out-of-pocket
expenses incurred will be invoiced to the Fund after the completion of
the rights offering.
c) In addition to the base fee, a $4.25 per telephone call fee will be
charged for every inbound telephone call received from a shareholder
regarding the Fund's rights offering.
d) The additional fee for contacting NOBOs and registered shareholders,
if requested, will include a fee of $3.50 per shareholder contacted
($1.00 per shareholder contacted where an outbound answering machine
responds), and out-of pocket expenses related to telephone number lookups
at $.35, Data processing, householding, Call Center Training and Quality
Control at $.12.
3. CONFIDENTIALITY
The Xxxxxx Group and the Fund agree that all books, records, information
and data pertaining to the business of the other party which are
exchanged or received pursuant to the negotiation or the carrying out of
this Agreement shall remain confidential, and shall not be voluntarily
disclosed to any other person, except as may be required by law. The
Xxxxxx Group shall not disclose or use any nonpublic information (as that
term is defined in SEC Regulation S-P promulgated under Title V of the
Xxxxx-Xxxxx-Xxxxxx Act of 1999) relating to the customers of the Fund
and/or its affiliates ("Customer Information") except as may be necessary
to carry out the purposes of this Agreement. The Xxxxxx Group shall use
its best efforts to safeguard and maintain the confidentiality of such
Customer Information, and to limit access to and usage of such Customer
Information to those employees, officers, agents and representatives of
The
Xxxxxx Group who have a need to know the information or as necessary to
provide the services under this Agreement.
4. INDEMNIFICATION
a) The Xxxxxx Group shall be entitled to rely upon any written
instructions or directions furnished to it by an appropriate Officer of
the Fund (President, Vice President, Secretary, Assistant Secretary, or
Treasurer), in conformity with the provisions of this Agreement. The
Xxxxxx Group shall not be under any duty or obligation to inquire into
the validity or invalidity or authority or lack thereof of any
instruction or direction from an Officer of the Fund which conforms to
the applicable requirements of this Agreement and which The Xxxxxx Group
reasonably believes to be genuine.
(b) The Fund will indemnify The Xxxxxx Group against, and hold it
harmless from, all liability and expense which may arise out of or in
connection with the services described in this Agreement or the
instructions or directions furnished to The Xxxxxx Group relating to this
Agreement by an appropriate Officer of the Fund, except for any liability
or expense which shall arise out of the negligence, bad faith or willful
misconduct of The Xxxxxx Group.
(c) The Xxxxxx Group shall be responsible for and shall indemnify and
hold the Fund harmless from and against any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liability arising
out of or attributable to The Xxxxxx Group's refusal or failure to comply
with the terms of this Agreement, or which arise out of The Xxxxxx
Group's negligence, bad faith or willful misconduct.
5. TERMINATION
This agreement shall remain in effect until the conclusion of the Fund
rights offering or, prior to that upon 30 days' written notice by either
party to the other.
6. GOVERNING LAW
This Agreement will be governed and construed in accordance with the laws
of the State of New York, without regard to principles of conflicts of
law.
7. AMENDMENTS
This Agreement, or any term of this Agreement, may be changed or waived
only by written amendment signed by a duly authorized representative of
each party to this Agreement.
8. ASSIGNMENT
This Agreement shall not be assigned without the prior written consent of
each party to the Agreement.
9. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute
one and the same Agreement.
10. CAPTIONS
The captions and descriptive headings in this Agreement are for only the
convenience of the parties. They do not in any way define or limit any of
the terms of this Agreement.
11. SEVERABILITY
If any provision of this Agreement shall be held invalid by a court
decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected.
12. SURVIVAL
The provisions of Sections 3, 4, and 6 shall survive any termination, for
any reason, of this Agreement.
If you are in agreement with the above, kindly sign both copies of this
Agreement in the space provided for that purpose below and return one copy to
us. Additionally, an invoice for the base fee is attached and The Xxxxxx Group
requires that we receive this fee prior to the mailing of the offering
materials.
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
Senior Managing Director
AGREED:
Managed High Yield Plus Fund, Inc.
Xxxxx X. Xxxxxx
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Print Authorized Name
/s/ Xxxxx X. Xxxxxx
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Authorized Signature
Vice President and Assistant Secretary
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Title
January 27, 2005
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Date
