ADMINISTRATION AGREEMENT
AGREEMENT made as of May ___, 2004, 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:
1. 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.
2. 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.
3. 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:
(i) The Fund's articles of incorporation or other
organizational document and all amendments thereto (the "Charter");
(ii) The Fund's bylaws (the "Bylaws");
(iii) 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;
(iv) 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");
(v) The Fund's Notification of Registration under the 1940 Act
on Form N-8A filed with the SEC; and
(vi) The Fund's Prospectus and Statement of Additional
Information pertaining to the Series (collectively, the "Prospectus").
(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.
4. 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 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
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.
5. 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 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.
6. 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, (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.
7. 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 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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, 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.
15. Notices.
All notices, requests, consents and other communications pursuant to
this Agreement in writing shall be sent as follows:
if to a Fund, at
Advent Claymore Global Total Return Fund
1065 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx, Secretary
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.
16. 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.
17. 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: __________________________
on behalf of each Fund
identified on Exhibit A
attached hereto
THE BANK OF NEW YORK
By: __________________________
Title:
EXHIBIT A
Name of Fund
------------
Advent Claymore Global Total Return 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.
10. Blue Sky Services
o 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.
o 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.
o Receive nightly downloads of sales data from transfer
agents.
o Update state/territory sales information for each
Fund or Series.
o Create and maintain state/territory sales information
worksheets for each Fund or Series.
o Monitor changes in Blue Sky laws and procedures for
all registered states/territories.
o Subject to approval of each Fund's legal counsel,
update filing requirements for all law and procedural
changes.
o Communicate directly with regulatory authorities in
states/territories as needed.
o Periodically attend Investment Company Institute
(ICI) State Liaison Committee meetings.
