AGREEMENT made as of ,
2007, by and between Advent/Claymore Global Convertible Securities & Income
Fund (the “Fund”), and The Bank of New York, a New York banking organization
W I T N E S S E T
WHEREAS, the Fund is an
investment company registered under the Investment Company Act of 1940, as
amended (the “1940 Act”); and
WHEREAS, the Fund desires
to retain the Administrator to provide administration services for the Fund and
the Administrator is willing to provide such services, all as more fully set
NOW THEREFORE, in
consideration of the mutual promises and agreements contained herein, the
parties hereby agree as follows:
The 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.
The 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
(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
3. Delivery of Documents.
(a) The 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:
Fund’s articles of incorporation or other organizational document and all
amendments thereto (the “Charter”);
Fund’s bylaws (the “Bylaws”);
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’s registration statement most recently filed with the Securities and
Exchange Commission (the “SEC”) relating to the shares of the Fund (the “Registration
Fund’s Notification of Registration under the 1940 Act on Form N-8A filed with
the SEC; and
Fund’s Prospectus and Statement of Additional Information pertaining to the
Fund (collectively, the “Prospectus”).
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 Fund.
shall be the sole responsibility of the 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
to the direction and control of the Fund’s Board and the provisions of this
Agreement, the Administrator shall provide to the Fund the administrative
services set forth on Schedule I attached hereto.
performing hereunder, the Administrator shall provide, at its expense, office
space, facilities, equipment and personnel.
Administrator shall not provide any services relating to the management,
investment advisory or sub-advisory functions of the Fund, distribution of
shares of the Fund, maintenance of the Fund’s financial records or other
services normally performed by the Fund’s counsel or independent auditors.
receipt of the 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, the consent of the Fund shall not 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 the 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.
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 the 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 the Fund when acting in
reliance, upon the instructions, advice or any documents relating to the 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 Fund.
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.
Administrator may apply to an officer of the Fund for written instructions with
respect to any matter arising in connection with the Administrator’s
performance hereunder for the 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 Fund or its own counsel, at the 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.
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
the Fund of: (i) the taxable nature of any distribution or amount received or
deemed received by, or payable to, the Fund, (ii) the taxable nature or effect
on the 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 the
Fund to it shareholders; or (iv) 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.
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 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 the 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 the Fund’s shareholders, all expenses
incidental to holding meetings of the Fund’s trustees, directors and
shareholders, and extraordinary expenses as may arise, including litigation
affecting the Fund and legal obligations relating thereto for which the Fund
may have to indemnify its trustees, directors and officers.
6. Standard of Care; Indemnification.
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 the 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 the 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.
Fund shall indemnify and hold harmless the Administrator from and against any
and all costs, expenses, damages, liabilities and claims (including claims
asserted by the 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) the
Fund’s Registration Statement or Prospectus, (iii) any instructions of an
officer of the Fund, or (iv) any opinion of legal counsel for the Fund or the
Administrator, or arising out of transactions or other activities of the Fund
which occurred prior to the commencement of this Agreement; provided, that the
Fund shall not 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 the Fund, its successors and
assigns, notwithstanding the termination of this Agreement.
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 the 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
For the services provided
hereunder, the 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. The Fund authorizes the Administrator to
debit the Fund’s custody account for all amounts due and payable
hereunder. The Administrator shall
deliver to the Fund invoices for services rendered after debiting the 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, the 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 the Fund, or
the 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 Fund 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.
This Agreement may not be
amended or modified in any manner except by a written agreement executed by the
Administrator and the Fund, and authorized or approved by the Fund’s Board.
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 the Fund without the written consent of the Administrator, or by
the Administrator without the written consent of the Fund accompanied by the
authorization or approval of the 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.
The 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 the 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, the Fund irrevocably agrees not to claim, and
it hereby waives, such immunity.
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
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 Convertible Securities &
0000 Xxxxxxxxx Xxxx Xxxxx
Attention: Xxxxxxxx Xxxxxxx
if to the Administrator, at
The Bank of New York
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or at such other
place as may from time to time be designated in writing. Notices hereunder shall be effective upon
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.
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.
CONVERTIBLE SECURITIES &
THE BANK OF NEW
the Fund’s minute book and its general corporate records (other than accounting
books and records).
and document compliance by the Fund with its policies and restrictions as
delineated in its Prospectus.
in the periodic updating of the Fund’s Registration Statement and Prospectus
and, subject to approval by the 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.
federal, state and local income tax returns for the Fund and file such returns
upon the approval of the Fund’s independent accountants; monitor and report on
Sub-Chapter M qualifications; prepare and file all Form 1099s with respect to
the 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
and, subject to approval of the Fund’s Treasurer, disseminate to the Fund’s
Board quarterly unaudited financial statements and schedules of the Fund’s
investments and make presentations to the Board, as appropriate.
to approval of the Fund’s Board, assist the Fund in obtaining fidelity bond and
E&O/D&O insurance coverage.
statistical reports for outside information services (e.g., IBC/Xxxxxxxx, ICI,
Lipper Analytical and Morningstar).
shareholder and Board meetings as requested from time to time.
appropriate expense accruals, maintain expense files and coordinate the payment
to approval of the Fund’s Board and its legal counsel, perform initial
registration for the Fund in such states as the Fund shall identify to the
to approval of the Fund’s Board and its legal counsel, perform renewal
registration for the Fund in such states as the Fund shall identify to the
nightly downloads of sales data from transfer agents.
state/territory sales information for the Fund.
and maintain state/territory sales information worksheets for the Fund.
changes in Blue Sky laws and procedures for all registered states/territories.
to approval of the Fund’s legal counsel, update filing requirements for all law
and procedural changes.
directly with regulatory authorities in states/territories as needed.
attend Investment Company Institute (ICI) State Liaison Committee meetings.