FUND ACCOUNTING AGREEMENT
AGREEMENT made as of this ___ day of May, 2004 by and between Advent
Claymore Global Total Return Fund, a Delaware statutory trust having its
principal place of business at 1065 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (hereinafter called the "Fund") and The Bank of New York,
a New York corporation authorized to do a banking business, having its
principal place of business at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter called the "Bank").
W I T N E S S E T H:
In consideration of the mutual agreements herein contained, the Fund
and the Bank hereby agree as follows:
1. The Fund hereby appoints the Bank to perform the duties
hereinafter set forth.
2. The Bank hereby accepts appointment and agrees to perform the
duties hereinafter set forth.
3. Subject to the provisions of paragraphs 4 and 5 below, the Bank
shall compute the net asset value per share of each Series of shares listed on
Schedule I hereto (the "Series") of the Fund and shall value the securities
held by the Fund (the "Securities") at such times and dates and in the manner
specified in the then currently effective Prospectus of the Fund.
4. To the extent valuation of Securities or computation of a Series'
net asset value as specified in the Fund's then currently effective Prospectus
is at any time inconsistent with any applicable laws or regulations, the Fund
shall immediately so notify the Bank in writing and thereafter shall either
furnish the Bank at all appropriate times with the values of such Securities
and each Series' net asset value, or subject to the prior approval of the
Bank, instruct the Bank in writing to value Securities and compute each
Series' net asset value in a manner which the Fund then represents in writing
to be consistent with all applicable laws and regulations. The Fund may also
from time to time, subject to the prior approval of the Bank, instruct the
Bank in writing to compute the value of the Securities or a Series' net asset
value in a manner other than as specified in paragraph 3 of this Agreement. By
giving such instruction, the Fund shall be deemed to have represented that
such instruction is consistent with all applicable laws and regulations and
the then currently effective Prospectus of the Fund. The Fund shall have sole
responsibility for determining the method of valuation of Securities and the
method of computing each Series' net asset value.
5. The Fund shall furnish the Bank with any and all instructions,
explanations, information, specifications and documentation deemed necessary
by the Bank in the performance of its duties hereunder, including, without
limitation, the amounts or written formula for calculating the amounts and
times of accrual of Fund liabilities and expenses. The Bank shall not be
required to include as Fund liabilities and expenses, nor as a reduction of
net asset value, any accrual for any federal, state, or foreign income taxes
unless the Fund shall have specified to the Bank the precise amount of the
same to be included in liabilities and expenses or used to reduce net asset
value. The Fund shall also furnish the Bank with bid, offer, or market values
of Securities if the Bank notifies the Fund that same are not available to the
Bank from a security pricing or similar service utilized, or subscribed to, by
the Bank which the Bank in its judgment deems reliable at the time such
information is required for calculations hereunder. At any time and from time
to time, the Fund also may furnish the Bank with bid, offer, or market values
of Securities and instruct the Bank to use such information in its
calculations hereunder. The Bank shall at no time be required or obligated to
commence or maintain any utilization of, or subscriptions to, any securities
pricing or similar service.
6. The Bank shall advise the Fund, the Fund's custodian and the
Fund's transfer agent of the net asset value of each Series upon completion of
the computations required to be made by the Bank pursuant to this Agreement.
7. The Bank shall, as agent for the Fund, maintain and keep current
the books, accounts and other documents, if any, listed in Appendix A hereto
and made a part hereof, as such Appendix A may be amended from time to time,
and preserve any such books, accounts and other documents in accordance with
the applicable provisions of Rule 31a-2 of the General Rules and Regulations
under the Investment Company Act of 1940, as amended (the "Rules"). Such
books, accounts and other documents shall be made available upon reasonable
request for inspection by officers, employees and auditors of the Fund during
the Bank's normal business hours.
8. All records maintained and preserved by the Bank pursuant to this
Agreement which the Fund is required to maintain and preserve in accordance
with the above-mentioned Rules shall be and remain the property of the Fund
and shall be surrendered to the Fund promptly upon request in the form in
which such records have been maintained and preserved. Upon reasonable request
of the Fund, the Bank shall provide in hard copy or on micro-film, whichever
the Bank shall elect, any records included in any such delivery which are
maintained by the Bank on a computer disc, or are similarly maintained, and
the Fund shall reimburse the Bank for its expenses of providing such hard copy
or micro-film.
9. The Bank, in performing the services required of it under the
terms of this Agreement, shall be entitled to rely fully on the accuracy and
validity of any and all instructions, explanations, information,
specifications and documentation furnished to it in writing by the Fund and
shall have no duty or obligation to review the accuracy, validity or propriety
of such instructions, explanations, information, specifications or
documentation, including, without limitation, evaluations of Securities; the
amounts or formula for calculating the amounts and times of accrual of Series'
liabilities and expenses; the amounts receivable and the amounts payable on
the sale or purchase of Securities; and amounts receivable or amounts payable
for the sale or redemption of Fund shares effected by or on behalf of the
Fund. In the event the Bank's computations hereunder rely, in whole or in
part, upon information, including, without limitation, bid, offer or market
values of Securities or other assets, or accruals of interest or earnings
thereon, from a pricing or similar service utilized, or subscribed to, by the
Bank which the Bank in its judgment deems reliable, the Bank shall not be
responsible for, under any duty to inquire into, or deemed to make any
assurances with respect to, the accuracy or completeness of such information.
10. The Bank shall not be required to inquire into any valuation of
Securities or other assets by the Fund or any third party described in
preceding paragraph 9 hereof, even though the Bank in performing services
similar to the services provided pursuant to this Agreement for others may
receive different valuations of the same or different securities of the same
issuers.
11. The Bank, in performing the services required of it under the
terms of this Agreement, shall not be responsible for determining whether any
interest accruable to the Fund is or will be actually paid, but will accrue
such interest until otherwise instructed by the Fund.
12. The Bank shall not be responsible for delays or errors which
occur by reason of circumstances beyond its control in the performance of its
duties under this Agreement, including, without limitation, labor difficulties
within or without the Bank, mechanical breakdowns, flood or catastrophe, acts
of God, failures of transportation, communication or power supply, or other
similar circumstances. Nor shall the Bank be responsible for delays or
failures to supply the information or services specified in this Agreement
where such delays or failures are caused by the failure of any person(s) other
than the Bank to supply any instructions, explanations, information,
specifications or documentation deemed necessary by the Bank in the
performance of its duties under this Agreement.
13. No provision of this Agreement shall prevent the Bank from
offering services similar or identical to those covered by this Agreement to
any other corporations, associations or entities of any kind. Any and all
operational procedures, techniques and devices developed by the Bank in
connection with the performance of its duties and obligations under this
Agreement, including those developed in conjunction with the Fund, shall be
and remain the property of the Bank, and the Bank shall be free to employ such
procedures, techniques and devices in connection with the performance of any
other contract with any other person whether or not such contract is similar
or identical to this Agreement.
14. The Bank may, with respect to questions of law, apply to and
obtain the advice and opinion of counsel to the Fund or its own counsel and
shall be entitled to rely on the advice or opinion of such counsel, provided
that the Bank shall where circumstances reasonably permit notify the Fund in
writing prior to obtaining such advice or opinion of counsel. The costs of any
such advice or opinion shall be borne by the Fund.
15. In no event shall the Bank be required to accept or act upon any
oral instructions; regardless of the circumstances.
16. Notwithstanding any other provision contained in this Agreement,
the Bank shall have no duty or obligation with respect to, including, without
limitation, any duty or obligation to determine, or advise or notify the Fund
of: (a) the taxable nature of any distribution or amount received or deemed
received by, or payable to, the Fund; (b) the taxable nature or effect on the
Fund or its shareholders of any corporate actions, class actions, tax
reclaims, tax refunds, or similar events; (c) the taxable nature or taxable
amount of any distribution or dividend paid, payable or deemed paid, by the
Fund to its shareholders; or (d) the effect under any federal, state, or
foreign income tax laws of the Fund making or not making any distribution or
dividend payment, or any election with respect thereto.
17. The Bank shall not be liable for any loss, damage or expense,
including counsel fees and other costs and expenses of a defense against any
claim or liability, resulting from, arising out of, or in connection with its
performance hereunder, including its actions or omissions, the incompleteness
or inaccuracy of any specifications or other information furnished by the
Fund, or for delays caused by circumstances beyond the Bank's control, unless
such loss, damage or expense arises out of the gross negligence or willful
misconduct of the Bank. In no event shall the Bank be liable to the Company or
any third party for special, indirect, or consequential damages, or for 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.
18. Without limiting the generality of the foregoing, the Fund shall
indemnify the Bank against and save the Bank harmless from any loss, damage or
expense, including reasonable counsel fees and other costs and expenses of a
defense against any claim or liability, arising from any one or more of the
following:
(a) Errors in records or instructions, explanations, information,
specifications or documentation of any kind, as the case may be, supplied to
the Bank in writing by any third party described in preceding paragraph 9
hereof or by or on behalf of the Fund;
(b) Action or inaction taken or omitted to be taken by the Bank
pursuant to written instructions of the Fund or otherwise without gross
negligence or willful misconduct;
(c) Any action taken or omitted to be taken by the Bank in good faith
in accordance with the advice or opinion of counsel for the Fund or its own
counsel;
(d) Any improper use by the Fund or its agents, distributor or
investment advisor of any valuations or computations supplied by the Bank
pursuant to this Agreement;
(e) The method of valuation of the Securities and the method of
computing each Series' net asset value; or
(f) Any valuations of Securities or net asset value provided by the
Fund.
19. In consideration for all of the services to be performed by the
Bank as set forth herein the Bank shall be entitled to receive reimbursement
for all out-of-pocket expenses and such compensation as may be agreed upon in
writing from time to time between the Bank and the Fund.
20. Attached hereto as Appendix B is a list of persons duly
authorized by the Fund's Declaration of Trust and By-Laws to execute this
Agreement and give any written instructions, or written specifications, by or
on behalf of the Fund. From time to time the Fund may deliver a new Appendix B
to add or delete any person and the Bank shall be entitled to rely on the last
Appendix B actually received by the Bank.
21. The Fund represents and warrants to the Bank that it has all
requisite power to execute and deliver this Agreement, to give any written
instructions contemplated hereby, and to perform the actions or obligations
contemplated to be performed by it hereunder, and has taken all necessary
action to authorize such execution, delivery, and performance.
22. This Agreement shall not be assignable by the Fund without the
prior written consent of the Bank, or by the Bank without the prior written
consent of the Fund.
23. Either of the parties hereto may terminate this Agreement by
giving the other party a notice in writing specifying the date of such
termination, which shall not be less than thirty (30) days after the date of
giving of such notice. Upon the date set forth in such notice, the Bank shall
deliver to the Fund all records then the property of the Fund and, upon such
delivery, the Bank shall be relieved of all duties and responsibilities under
this Agreement.
24. This Agreement may not be amended or modified in any manner
except by written agreement executed on behalf of both parties hereto.
25. This Agreement is executed in the State of New York and all laws
and rules of construction of the State of New York (other than those relating
to choice of laws) shall govern the rights, duties and obligations of the
parties hereto. The Fund and the Bank hereby consent to the exclusive
jurisdiction of a state or federal courts situated in New York City, New York
in connection with any dispute arising hereunder. The Fund hereby irrevocably
waives, to the fullest extent permitted by applicable law, any objection which
it may now or hereafter have to the laying of venue of any such preceding
brought in such a court and any claim that such proceeding brought in such a
court has been brought in an inconvenient form. The Fund and the Bank each
hereby irrevocably waives any and all rights to trial by jury in any legal
proceeding arising out of or relating to this Agreement.
26. The performance and provisions of this Agreement are intended to
benefit only the Bank and the Fund, and no rights shall be granted to any
other person by virtue of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first written above.
ADVENT CLAYMORE GLOBAL TOTAL
RETURN FUND
By:
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Name: Xxxx Xxxxxx
Title: Secretary
Attest:
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Name: F. Xxxxx Xxxxxx
Title: Vice President and
Assistant Secretary
THE BANK OF NEW YORK
By:
-----------------------------
Name:
Title:
Attest:
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APPENDIX A TO FUND ACCOUNTING AGREEMENT
BETWEEN
THE BANK OF NEW YORK
AND
ADVENT CLAYMORE GLOBAL TOTAL RETURN FUND
I. The Bank of New York (the "Bank"), as agent for Advent Claymore
Global Total Return Fund (the "Fund"), shall maintain the following records on
a daily basis for each Series.
1. Report of priced portfolio securities
2. Statement of net asset value per share
II. The Bank shall maintain the following records on a monthly basis
for each Series:
1. General Ledger
2. General Journal
3. Cash Receipts Journal
4. Cash Disbursements Journal
5. Subscriptions Journal
6. Redemptions Journal
7. Accounts Receivable Reports
8. Accounts Payable Reports
9. Open Subscriptions/Redemption Reports
10. Transaction (Securities) Journal
11. Broker Net Trades Reports
III. The Bank shall prepare a Holdings Ledger on a quarterly basis,
and a Buy-Sell Ledger (Broker's Ledger) on a semiannual basis for each Series.
Schedule D shall be produced on an annual basis for each Series.
The above reports may be printed according to any other required
frequency to meet the requirements of the Internal Revenue Service, The
Securities and Exchange Commission and the Fund's Auditors.
IV. For internal control purposes, the Bank uses the Account Journals
produced by The Bank of New York Custody System to record daily settlements of
the following for each Series:
1. Securities bought
2. Securities sold
3. Interest received
4. Dividends received
5. Capital stock sold
6. Capital stock redeemed
7. Other income and expenses
All portfolio purchases for the Fund are recorded to reflect expected
maturity value and total cost including any prepaid interest.
APPENDIX B
I, Xxxx Xxxxxx, of Advent Claymore Global Total Return Fund, a
Delaware statutory trust (the "Fund"), do hereby certify that:
The following individuals serve in the following positions with the
Fund, and each has been duly elected or appointed by the Board of Trustees of
the Fund to each such position and qualified therefor in conformity with the
Fund's Declaration of Trust and By-Laws, and the signatures set forth opposite
their respective names are their true and correct signatures. Each such person
is authorized to give written or oral instructions or written or oral
specifications by or on behalf of the Fund to the Bank.
Name Position Signature
President and
Xxxxx X. Xxxxxxxx Chief Executive Officer -----------------------
Xxxx Xxxxxx Secretary -----------------------
Treasurer and
Xxxx Xxxxxxxxx Chief Financial Officer -----------------------
Xxx Xxxx Vice President -----------------------
Vice President and
F. Xxxxx Xxxxxx Assistant Secretary -----------------------
Employee of
Xxxxxx Xxxxxx Investment Manager -----------------------
Employee of
Xxxx Xxxxxxxxxxx Investment Manager -----------------------
SCHEDULE I
SERIES
