Exhibit 99.(k)(iii)
ADMINISTRATION AGREEMENT
AGREEMENT made as of ________________, 2005, by and between each entity
listed on Exhibit A hereto (each, a "Fund"; collectively, the "Funds"), and The
Bank of New York, a New York banking organization (the "Administrator").
W I T N E S S E T H :
WHEREAS, each Fund is an investment company registered under the Investment
Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, each Fund desires to retain the Administrator to provide
administration services for the portfolios identified on Exhibit A hereto (each,
a "Series") and the Administrator is willing to provide such services, all as
more fully set forth below;
NOW THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties hereby agree as follows:
37. APPOINTMENT.
Each Fund hereby appoints the Administrator as its agent for the term of
this Agreement to perform the services described herein. The Administrator
hereby accepts such appointment and agrees to perform the duties hereinafter set
forth.
38. REPRESENTATIONS AND WARRANTIES.
Each Fund hereby represents and warrants to the Administrator, which
representations and warranties shall be deemed to be continuing, that:
(a) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its business as
now conducted, to enter into this Agreement and to perform its obligations
hereunder;
(b) This Agreement has been duly authorized, executed and delivered by
the Fund in accordance with all requisite action and constitutes a valid and
legally binding obligation of the Fund, enforceable in accordance with its
terms; and
(c) It is conducting its business in compliance with all applicable
laws and regulations, both state and federal, and has obtained all regulatory
licenses, approvals and consents necessary to carry on its business as now
conducted; there is no statute, regulation, rule, order or judgment binding on
it and no provision of its charter or by-laws, nor of any mortgage, indenture,
credit agreement or other contract binding on it or affecting its property which
would prohibit its execution or performance of this Agreement.
39. DELIVERY OF DOCUMENTS.
(a) Each Fund will promptly deliver to the Administrator true
and correct copies of each of the following documents as currently in
effect and will promptly deliver to it all future amendments and
supplements thereto, if any:
1. The Fund's articles of incorporation or other organizational
document and all amendments thereto (the "Charter");
2. The Fund's bylaws (the "Bylaws");
3. Resolutions of the Fund's board of directors or other
governing body (the "Board") authorizing the execution, delivery and
performance of this Agreement by the Fund;
4. The Fund's registration statement most recently filed with
the Securities and Exchange Commission (the "SEC") relating to the shares
of the Fund (the "Registration Statement");
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5. The Fund's Notification of Registration under the 1940 Act
on Form N-8A filed with the SEC; and
6. The Fund's Prospectus and Statement of Additional
Information pertaining to the Series (collectively, the "Prospectus").
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(b) Each copy of the Charter shall be certified by the Secretary of
State (or other appropriate official) of the state of organization, and if the
Charter is required by law also to be filed with a county or other officer or
official body, a certificate of such filing shall be filed with a certified copy
submitted to the Administrator. Each copy of the Bylaws, Registration Statement
and Prospectus, and all amendments thereto, and copies of Board resolutions,
shall be certified by the Secretary or an Assistant Secretary of the appropriate
Fund.
(c) It shall be the sole responsibility of each Fund to deliver to
the Administrator its currently effective Prospectus and the Administrator shall
not be deemed to have notice of any information contained in such Prospectus
until it is actually received by the Administrator.
40. DUTIES AND OBLIGATIONS OF THE ADMINISTRATOR.
(a) Subject to the direction and control of each Fund's Board and
the provisions of this Agreement, the Administrator shall provide to each Fund
the administrative services set forth on Schedule I attached hereto.
(b) In performing hereunder, the Administrator shall provide, at
its expense, office space, facilities, equipment and personnel.
(c) The Administrator shall not provide any services relating to
the management, investment advisory or sub-advisory functions of any Fund,
distribution of shares of any Fund, maintenance of any Fund's financial records
or other services normally performed by the Funds' respective counsel or
independent auditors.
(d) Upon receipt of a Fund's prior written consent (which shall not
be unreasonably withheld), the Administrator may delegate any of its duties and
obligations hereunder to any delegee or agent whenever and on such terms and
conditions as it deems necessary or appropriate. Notwithstanding the foregoing,
no Fund consent shall be required for any such delegation to any other
subsidiary of The Bank of New York
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Company, Inc. The Administrator shall not be liable to any Fund for any loss or
damage arising out of, or in connection with, the actions or omissions to act of
any delegee or agent utilized hereunder so long as the Administrator acts in
good faith and without negligence or willful misconduct in the selection of such
delegee or agent.
(e) Each Fund shall cause its officers, advisors, sponsor, legal
counsel, independent accountants, current administrator (if any) and transfer
agent to cooperate with the Administrator and to provide the Administrator, upon
its written request, with such information, documents and advice relating to
such Fund as is within the possession or knowledge of such persons, in order to
enable the Administrator to perform its duties hereunder. In connection with its
duties hereunder, the Administrator shall be entitled to rely, and shall be held
harmless by each Fund when acting in reliance, upon the instructions, advice or
any documents relating to such Fund provided to the Administrator by any of the
aforementioned persons. The Administrator shall not be liable for any loss,
damage or expense resulting from or arising out of the failure of the Fund to
cause any information, documents or advice to be provided to the Administrator
upon its written request as provided herein. All fees or costs charged by such
persons shall be borne by the appropriate Fund.
(f) Nothing in this Agreement shall limit or restrict the
Administrator, any affiliate of the Administrator or any officer or employee
thereof from acting as administrator for or with any third parties.
(g) The Administrator may apply to an officer of any Fund for
written instructions with respect to any matter arising in connection with the
Administrator's performance hereunder for such Fund, and the Administrator shall
not be liable for any action taken or omitted to be taken by it in good faith in
accordance with such instructions. Such application for instructions may, at the
option of the Administrator, set forth in writing any action proposed to be
taken or omitted to be taken by the Administrator with respect to its duties or
obligations under this Agreement and the date on and/or after which such action
shall be taken, and the Administrator shall not be liable
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for any action taken or omitted to be taken in accordance with a proposal
included in any such application on or after the date specified therein unless,
prior to taking or omitting to take any such action, the Administrator has
received written instructions in response to such application specifying the
action to be taken or omitted. The Administrator may consult with counsel to the
appropriate Fund or its own counsel, at such Fund's expense, and shall be fully
protected with respect to anything done or omitted by it in good faith in
accordance with the advice or opinion of such counsel.
(h) Notwithstanding any other provision contained in this Agreement
or any Schedule hereto, the Administrator shall have no duty or obligation to
with respect to, including, without limitation, any duty or obligation to
determine, or advise or notify any Fund of: (i) the taxable nature of any
distribution or amount received or deemed received by, or payable to, a Fund,
(ii) the taxable nature or effect on a Fund or its shareholders of any corporate
actions, class actions, tax reclaims, tax refunds or similar events, (iii) the
taxable nature or taxable amount of any distribution or dividend paid, payable
or deemed paid, by a Fund to it shareholders; or (iv) the effect under any
federal, state, or foreign income tax laws of a Fund making or not making any
distribution or dividend payment, or any election with respect thereto.
(i) The Administrator shall have no duties or responsibilities
whatsoever except such duties and responsibilities as are specifically set forth
in this Agreement and Schedule I hereto, and no covenant or obligation shall be
implied against the Administrator in connection with this Agreement.
41. ALLOCATION OF EXPENSES.
Except as otherwise provided herein, all costs and expenses arising or
incurred in connection with the performance of this Agreement shall be paid by
the appropriate Fund, including but not limited to, organizational costs and
costs of maintaining corporate existence, taxes, interest, brokerage fees and
commissions, insurance premiums, compensation and expenses of such Fund's
trustees, directors, officers or
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employees, legal, accounting and audit expenses, management, advisory,
sub-advisory, administration and shareholder servicing fees, charges of
custodians, transfer and dividend disbursing agents, expenses (including
clerical expenses) incident to the issuance, redemption or repurchase of Fund
shares, fees and expenses incident to the registration or qualification under
federal or state securities laws of the Fund or its shares, costs (including
printing and mailing costs) of preparing and distributing Prospectuses, reports,
notices and proxy material to such Fund's shareholders, all expenses incidental
to holding meetings of such Fund's trustees, directors and shareholders, and
extraordinary expenses as may arise, including litigation affecting such Fund
and legal obligations relating thereto for which the Fund may have to indemnify
its trustees, directors and officers.
42. STANDARD OF CARE; INDEMNIFICATION.
(a) Except as otherwise provided herein, the Administrator shall
not be liable for any costs, expenses, damages, liabilities or claims (including
attorneys' and accountants' fees) incurred by a Fund, except those costs,
expenses, damages, liabilities or claims arising out of the Administrator's own
bad faith, gross negligence or willful misconduct. In no event shall the
Administrator be liable to any Fund or any third party for special, indirect or
consequential damages, or lost profits or loss of business, arising under or in
connection with this Agreement, even if previously informed of the possibility
of such damages and regardless of the form of action.
(b) Each Fund shall indemnify and hold harmless the Administrator
from and against any and all costs, expenses, damages, liabilities and claims
(including claims asserted by a Fund), and reasonable attorneys' and
accountants' fees relating thereto, which are sustained or incurred or which may
be asserted against the Administrator, by reason of or as a result of any action
taken or omitted to be taken by the Administrator in good faith hereunder or in
reliance upon (i) any law, act or regulation or official interpretation of the
same even though the same may thereafter have been altered, changed, amended or
repealed, (ii) such Fund's Registration Statement or Prospectus,
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(iii) any instructions of an officer of such Fund, or (iv) any opinion of legal
counsel for such Fund or the Administrator, or arising out of transactions or
other activities of such Fund which occurred prior to the commencement of this
Agreement; provided, that no Fund shall indemnify the Administrator for costs,
expenses, damages, liabilities or claims arising out of the Administrator's own
gross negligence, bad faith or willful misconduct. This indemnity shall be a
continuing obligation of each Fund, its successors and assigns, notwithstanding
the termination of this Agreement.
(c) Actions taken or omitted in reliance on written instructions,
or upon any information, order, indenture, stock certificate, power of attorney,
assignment, affidavit or other instrument believed by the Administrator to be
genuine or bearing the signature of a person or persons believed to be
authorized to sign, countersign or execute the same, or upon the opinion of
legal counsel for a Fund or its own counsel, shall be conclusively presumed to
have been taken or omitted in good faith. In no event shall the Bank be required
to accept or act upon any oral instructions; regardless of the circumstances.
43. COMPENSATION.
For the services provided hereunder, each Fund agrees to pay the
Administrator such compensation as is mutually agreed from time to time and such
out-of-pocket expenses (e.g., telecommunication charges, postage and delivery
charges, record retention costs, reproduction charges and transportation and
lodging costs) as are incurred by the Administrator in performing its duties
hereunder. Except as hereinafter set forth, compensation shall be calculated and
accrued daily and paid monthly. Each Fund authorizes the Administrator to debit
such Fund's custody account for all amounts due and payable hereunder. The
Administrator shall deliver to each Fund invoices for services rendered after
debiting such Fund's custody account with an indication that payment has been
made. Upon termination of this Agreement before the end of any month, the
compensation for such part of a month shall be prorated according to the
proportion which such period bears to the full monthly period and shall be
payable upon
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the effective date of termination of this Agreement. For the purpose of
determining compensation payable to the Administrator, each Fund's net asset
value shall be computed at the times and in the manner specified in the Fund's
Prospectus.
44. TERM OF AGREEMENT.
This Agreement shall continue until terminated by either the Administrator
giving to a Fund, or a Fund giving to the Administrator, a notice in writing
specifying the date of such termination, which date shall be not less than 30
days after the date of the giving of such notice. Upon termination hereof, the
affected Fund(s) shall pay to the Administrator such compensation as may be due
as of the date of such termination, and shall reimburse the Administrator for
any disbursements and expenses made or incurred by the Administrator and payable
or reimbursable hereunder.
45. FORCE MAJEURE.
The Administrator shall not be responsible or liable for any failure or
delay in the 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; epidemics; riots; interruptions,
loss or malfunctions of utilities, computer (hardware or software) or
communications service; accidents; labor disputes; acts of civil or military
authority or governmental actions; it being understood that the Administrator
shall use its best efforts to resume performance as soon as practicable under
the circumstances.
46. AMENDMENT.
This Agreement may not be amended or modified in any manner except by a
written agreement executed by the Administrator and the Fund to be bound
thereby, and authorized or approved by such Fund's Board.
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47. ASSIGNMENT.
This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by any Fund without the written consent
of the Administrator, or by the Administrator without the written consent of the
affected Fund accompanied by the authorization or approval of such Fund's Board.
48. GOVERNING LAW; CONSENT TO JURISDICTION.
This Agreement shall be construed in accordance with the laws of the State
of New York, without regard to conflict of laws principles thereof. Each Fund
hereby consents to the jurisdiction of a state or federal court situated in New
York City, New York in connection with any dispute arising hereunder. Customer
and Custodian each hereby irrevocably waives any and all rights to trial by jury
in any legal proceeding arising out of or relating to this Agreement. To the
extent that in any jurisdiction any Fund may now or hereafter be entitled to
claim, for itself or its assets, immunity from suit, execution, attachment
(before or after judgment) or other legal process, such Fund irrevocably agrees
not to claim, and it hereby waives, such immunity.
49. SEVERABILITY.
In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations shall not in any
way be affected or impaired thereby, and if any provision is inapplicable to any
person or circumstances, it shall nevertheless remain applicable to all other
persons and circumstances.
50. NO WAIVER.
Each and every right granted to the Administrator hereunder or under any
other document delivered hereunder or in connection herewith, or allowed it by
law or equity,
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shall be cumulative and may be exercised from time to time. No failure on the
part of the Administrator to exercise, and no delay in exercising, any right
will operate as a waiver thereof, nor will any single or partial exercise by the
Administrator of any right preclude any other or future exercise thereof or the
exercise of any other right.
51. NOTICES.
All notices, requests, consents and other communications pursuant to this
Agreement in writing shall be sent as follows:
if to a Fund, at
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxx
if to the Administrator, at
The Bank of New York
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Vice President
or at such other place as may from time to time be designated in writing.
Notices hereunder shall be effective upon receipt.
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52. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original; but such counterparts together shall
constitute only one instrument.
53. SEVERAL OBLIGATIONS.
The parties acknowledge that the obligations of the Funds hereunder are
several and not joint, that no Fund shall be liable for any amount owing by
another Fund and that the Funds have executed one instrument for convenience
only.
IN WITNESS WHEREOF, the parties hereto have caused the foregoing instrument
to be executed by their duly authorized officers and their seals to be hereunto
affixed, all as of the day and year first above written.
By:
-----------------------------
Xxxxxxxx Xxxxxxx
on behalf of each Fund
identified on Exhibit A
attached hereto
THE BANK OF NEW YORK
By:
-----------------------------
Title:
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EXHIBIT A
NAME OF FUND
Fiduciary/Claymore Dynamic Equity Fund
SCHEDULE I
ADMINISTRATIVE SERVICES
1. Maintain each Fund's minute book and its general corporate records (other
than accounting books and records).
2. Monitor and document compliance by each Fund with its policies and
restrictions as delineated in its Prospectus.
3. Participate in the periodic updating of each Fund's Registration Statement
and Prospectus and, subject to approval by such Fund's Treasurer and legal
counsel, coordinate the preparation, filing, printing and dissemination of
periodic reports and other information to the SEC and the Fund's
shareholders, including annual and semi-annual reports to shareholders,
annual and semi-annual Form N-SAR and Form N-CSR, notices pursuant to Rule
24(f)-2 and proxy materials.
4. Prepare federal, state and local income tax returns for each Fund and
Series and file such returns upon the approval of the Funds' respective
independent accountants; monitor and report on Sub-Chapter M
qualifications; prepare and file all Form 1099s with respect to each Fund's
directors or trustees; monitor compliance with Section 4982 of the Internal
Revenue Code; calculate and maintain records pertaining to Original Issue
Discount and premium amortization as required; perform ongoing wash sales
review (i.e., purchases and sales of Fund investments within 30 days of
each other).
5. Prepare and, subject to approval of each Fund's Treasurer, disseminate to
such Fund's Board quarterly unaudited financial statements and schedules of
such Fund's investments and make presentations to the Board, as
appropriate.
6. Subject to approval of each Fund's Board, assist such Fund in obtaining
fidelity bond and E&O/D&O insurance coverage.
7. Prepare statistical reports for outside information services (e.g.,
IBC/Xxxxxxxx, ICI, Lipper Analytical and Morningstar).
8. Attend shareholder and Board meetings as requested from time to time.
9. Establish appropriate expense accruals, maintain expense files and
coordinate the payment of invoices.
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10. Blue Sky Services
- Subject to approval of each Fund's Board and its legal counsel,
perform initial registration for Funds or Series in such states
as each Fund shall identify to the Administrator.
- Subject to approval of each Fund's Board and its legal counsel,
perform renewal registration for Funds or Series in such states
as each Fund shall identify to the Administrator.
- Receive nightly downloads of sales data from transfer agents.
- Update state/territory sales information for each Fund or Series.
- Create and maintain state/territory sales information worksheets
for each Fund or Series.
- Monitor changes in Blue Sky laws and procedures for all
registered states/territories.
- Subject to approval of each Fund's legal counsel, update filing
requirements for all law and procedural changes.
- Communicate directly with regulatory authorities in
states/territories as needed.
- Periodically attend Investment Company Institute (ICI) State
Liaison Committee meetings.
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