Exhibit (k)(ii)
FUND ACCOUNTING AGREEMENT
AGREEMENT made as of this [] day of December, 2004 by and between
Fiduciary/Claymore MLP Opportunity Fund, a Delaware statutory trust (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").
WITNESSETH:
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.
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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
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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
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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
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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
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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
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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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
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By:
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Name:
Title:
Attest:
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Name:
Title:
THE BANK OF NEW YORK
By:
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Name:
Title:
Attest:
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APPENDIX A TO FUND ACCOUNTING AGREEMENT
BETWEEN
THE BANK OF NEW YORK
AND
_______________________________________________________________
I. The Bank of New York (the "Bank"), as agent for __________________
____________________ (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.
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I, ________________, of ____________________, 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
Chief Executive Officer
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Secretary
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Treasurer and
Chief Financial Officer
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Vice President
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Vice President and
Assistant Secretary
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Employee of Advisor
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Employee of Advisor
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SCHEDULE I
SERIES
