exhibit j.2
ACCOUNTING AGENCY AGREEMENT
THIS ACCOUNTING AGENCY AGREEMENT is made as of ,
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2005, by and between ▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ & CO., a limited partnership
organized under the laws of the State of New York (the "Accounting Agent"), NFJ
DIVIDEND, INTEREST AND PREMIUM STRATEGY FUND (the "Fund").
WHEREAS, the Fund is registered as management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Fund desires to retain the Accounting Agent to perform certain
accounting and recordkeeping services on behalf of the Fund, and the Accounting
Agent is willing to render such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
1. Employment of Accounting Agent. The Fund hereby employs and appoints the
Accounting Agent to act as its fund accounting agent on the terms set forth in
this Agreement, and the Accounting Agent accepts such appointment.
2. Delivery of Documents. The Fund will (i) furnish the Accounting Agent
with properly certified or authenticated copies of resolutions of the Fund's
Board of Directors or Trustees authorizing the appointment of the Accounting
Agent to provide certain fund accounting services to the Fund and approving this
Agreement; (ii) provide the Accounting Agent with any other documents or
resolutions (including but not limited to directions or resolutions of the
Fund's Board of Directors or Trustees) which relate to or affect the Accounting
Agent 's performance of its duties hereunder or which the Accounting Agent may
reasonably request; and (iii) notify the Accounting Agent promptly of any matter
affecting the performance by the Accounting Agent of its services under this
Agreement.
3. Recordkeeping and Calculation of Net Asset Value. The Accounting Agent
shall compute and determine the net asset value per share of the Fund as of the
close of business on the New York Stock Exchange on each day that the Fund is
traded, unless otherwise directed by Proper Instructions. Such computation and
determination shall be made in accordance with (1) the provisions of the Fund's
Declaration of Trust or Certificate of Incorporation and By-Laws, as they may
from time to time be amended and delivered to the Accounting Agent, (2) the
votes of the Board of Trustees or Directors of the Fund at the time in force and
applicable, as they may from time to time be delivered to the Accounting Agent,
and (3) Proper Instructions. On each day that the Accounting Agent shall compute
the net asset value per share of the Fund, the Accounting Agent shall provide
the Fund's investment adviser with written reports which the investment adviser
will use to verify that portfolio transactions
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have been recorded in accordance with the Fund's instructions and are reconciled
with the Fund's trading records.
In computing the net asset value, the Accounting Agent may rely upon
any information furnished by Proper Instructions, including without limitation
any information (1) as to accrual of liabilities of the Fund and as to
liabilities of the Fund not appearing on the books of account kept by the
Accounting Agent, (2) as to the existence, status and proper treatment of
reserves, if any, authorized by the Fund, (3) as to the sources of quotations to
be used in computing the net asset value, including those listed in Appendix A,
(4) as to the fair value to be assigned to any securities or other property for
which price quotations are not readily available, and (5) as to the sources of
information with respect to "corporate actions" affecting portfolio securities
of the Fund, including those listed in Appendix A. (Information as to "corporate
actions" shall include information as to dividends, distributions, stock splits,
stock dividends, rights offerings, conversions, exchanges, recapitalizations,
mergers, redemptions, calls, maturity dates and similar transactions, including
the ex- and record dates and the amounts or other terms thereof). The Fund may
instruct the Accounting Agent to utilize a particular source for the valuation
of a specific Security or other Property and the Accounting Agent shall
protected in utilizing the valuation provided by such source without further
inquiry in order to effect calculation of the Fund's net asset value.
Notwithstanding anything in this Agreement to the contrary, the Accounting Agent
shall not be responsible for the failure of the Fund or its investment adviser
to provide the Accounting Agent with Proper Instructions regarding liabilities
which ought to be included in the calculation of the Fund's net asset value.
In like manner, the Accounting Agent shall compute and determine the
net asset value as of such other times as the Board of Trustees or Directors of
the Fund from time to time may reasonably request.
4. Expenses and Compensation. For the services to be rendered and the
facilities to be furnished by the Accounting Agent as provided for in this
Agreement, the Fund shall pay the Accounting Agent for its services rendered
pursuant to this Agreement a fee based on such fee schedule as may from time to
time be agreed upon in writing by the Fund and the Accounting Agent. In addition
to such fee, the Accounting Agent shall ▇▇▇▇ the Fund separately for any
out-of-pocket disbursements of the Accounting Agent. Out-of-pocket disbursements
shall include, but shall not be limited to, postage, including courier services;
telephone; telecommunications; printing, duplicating and photocopying charges;
forms and supplies; filing fees; legal expenses; and travel expenses. The
foregoing fees and disbursements shall be billed to the Fund by the Accounting
Agent and shall be paid promptly by wire transfer or other appropriate means to
the Accounting Agent.
5. Standard of Care. The Accounting Agent shall be held only to the
exercise of reasonable care in computing and determining net asset value as
provided in this Agreement, but shall not be held accountable or liable for any
losses or damages the Fund or any shareholder or former shareholder of the Fund
or any other person may suffer or incur arising from or based upon errors or
delays in the determination of such net asset value resulting from any event
beyond the reasonable control of the Accounting Agent unless such error or delay
was due to the Accounting Agent's negligence or reckless or willful misconduct
in determination of such net asset value. (The parties hereto acknowledge,
however, that the Accounting Agent's causing an error or delay in the
determination of net asset value may, but does not in and of itself, constitute
negligence or reckless or willful misconduct.) In no event shall the Accounting
Agent be liable or responsible to the Fund, any present or former shareholder of
the Fund or any other person for any error or delay which continued or was
undetected after the date of an audit performed by the certified public
accountants employed by the Fund if, in the exercise of reasonable care in
accordance with generally accepted accounting standards, such accountants should
have become aware of such error or delay in the course of performing such audit.
The Accounting Agent's liability for any such negligence or reckless or willful
misconduct which results in an error in determination of such net asset value
shall be limited exclusively to the direct, out-of-pocket loss the Fund,
shareholder or former shareholder shall actually incur, measured by the
difference between the actual and the erroneously computed net asset value, and
any expenses the Fund shall incur in connection with correcting the records of
the Fund affected by such error (including charges
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made by the Fund's registrar and transfer agent for making such corrections) or
communicating with shareholders or former shareholders of the Fund affected by
such error.
Without limiting the foregoing, the Accounting Agent shall not be
held accountable or liable to the Fund, any shareholder or former shareholder
thereof or any other person for any delays or losses, damages or expenses any of
them may suffer or incur resulting from (1) the Accounting Agent's failure to
receive timely and suitable notification concerning quotations or corporate
actions relating to or affecting portfolio securities of the Fund or (2) any
errors in the computation of the net asset value based upon or arising out of
quotations or information as to corporate actions if received by the Accounting
Agent either (i) from a source which the Accounting Agent was authorized
pursuant to the third paragraph of this Section to rely upon, (ii) from a source
which in the Administrator's reasonable judgment was as reliable a source for
such quotations or information as the sources authorized pursuant to that third
paragraph, or (iii) relevant information known to the Fund or the Investment
Adviser which would impact the calculation of net asset value but which is not
communicated by the Fund or the investment adviser to the Accounting Agent.
In the event of any error or delay in the determination of such net asset
value for which the Accounting Agent may be liable, the Fund and the Accounting
Agent will consult and make good faith efforts to reach agreement on what
actions should be taken in order to mitigate any loss suffered by the Fund or
its present or former shareholders, in order that the Accounting Agent's
exposure to liability shall be reduced to the extent possible after taking into
account all relevant factors and alternatives. Such actions might include the
Fund or the Accounting Agent taking reasonable steps to collect from any
shareholder or former shareholder who has received any overpayment upon
redemption of shares such overpaid amount or to collect from any shareholder who
has underpaid upon a purchase of shares the amount of such underpayment or to
reduce the number of shares issued to such shareholder. It is understood that in
attempting to reach agreement on the actions to be taken or the amount of the
loss which should appropriately be borne by the Accounting Agent, the Fund and
the Accounting Agent will consider such relevant factors as the amount of the
loss involved, the Fund's desire to avoid loss of shareholder good will, the
fact that other persons or entities could have been reasonably expected to have
detected the error sooner than the time it was actually discovered, the
appropriateness of limiting or eliminating the benefit which shareholders or
former shareholders might have obtained by reason of the error, and the
possibility that other parties providing services to the Fund might be induced
to absorb a portion of the loss incurred.
6. Limitation of Liability.
(a) The Accounting Agent shall incur no liability with respect to
any telecommunications, equipment or power failures, or any failures to perform
or delays in performance by postal or courier services or third-party
information providers. The Accounting Agent shall also incur no liability under
this Agreement if the Accounting Agent or any agent or entity utilized by the
Accounting Agent shall be prevented, forbidden or delayed from performing, or
omits to perform, any act or thing which this Agreement provides shall be
performed or omitted to be performed, by reason of causes or events beyond its
control, including but not limited to (x) any Sovereign Risk, or (y) any
provision of any present or future law, regulation or order of the United States
or any state thereof, or of any foreign country or political subdivision
thereof, or of any securities depository or clearing agency, or (z) any
provision of any order or judgment of any court of competent jurisdiction. A
"Sovereign Risk" shall mean any nationalization; expropriation; devaluation;
revaluation; confiscation; seizure; cancellation; destruction; strike; act of
war, terrorism, insurrection or revolution; or any other act or event beyond the
Accounting Agent's control.
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(b) Notwithstanding any other provision of this Agreement, the
Accounting Agent shall not be held accountable or liable for any losses, damages
or expenses the Fund or any shareholder or former shareholder of the Fund or any
other person may suffer or incur arising from acts, omissions, errors or delays
of the Accounting Agent in the performance of its obligations and duties
hereunder, including without limitation any error of judgment or mistake of law,
except a damage, loss or expense resulting from the Accounting Agent's willful
malfeasance, bad faith or negligence in the performance of such obligations and
duties. The Accounting Agent shall in no event be required to take any action
which is in contravention of any applicable law, rule or regulation or any order
or judgment of any court of competent jurisdiction. The Fund hereby agrees to
indemnify the Accounting Agent against and hold it harmless from any and all
losses, claims, damages, liabilities or expenses (including reasonable counsel
fees and expenses) resulting from any act, omission, error or delay or any
claim, demand, action or suit, in connection with or arising out of performance
of its obligations and duties under this Agreement, not resulting from the
willful malfeasance, bad faith or negligence of the Accounting Agent in the
performance of such obligations and duties.
The Accounting Agent shall in no event be liable or responsible to the
Fund, any present or former shareholder of the Fund or any other person for any
error or delay which continued or was undetected after the date of an audit
performed by the certified public accountants employed by the Fund if, in the
exercise of reasonable care in accordance with generally accepted accounting
standards, such accountants should have become aware of such error or delay in
the course of performing such audit. It is also agreed that, in the event of an
act, omission, error or delay which leads to losses, costs or expenses for which
the Accounting Agent may be liable, the Fund and the Accounting Agent will
consult and make good faith efforts to reach agreement on what actions should be
taken in order to mitigate any loss suffered by the Fund or its present or
former shareholders, in order that the Accounting Agent's exposure to liability
shall be reduced to the extent possible after taking into account all relevant
factors and alternatives. It is understood that in attempting to reach agreement
on the actions to be taken or the amount of the loss which should appropriately
be borne by the Accounting Agent, the Fund and the Accounting Agent will
consider such relevant factors as the amount of the loss involved, the Fund's
desire to avoid loss of shareholder good will, the fact that other persons or
entities could have been reasonably expected to have detected the error sooner
than the time it was actually discovered, the appropriateness of limiting or
eliminating the benefit which shareholders or former shareholders might have
obtained by reason of the error, and the possibility that other parties
providing services to the Fund might be induced to absorb a portion of the loss
incurred.
(c) Notwithstanding anything else in this Agreement to the
contrary, the Accounting Agent's entire liability to the Fund for any loss or
damage arising or resulting from its performance hereunder or for any other
cause whatsoever, and regardless of the form of action, shall be limited to the
Fund's actual and direct out-of-pocket expenses and losses which are reasonably
incurred by the Fund. In no event and under no circumstances shall the
Accounting Agent or a Fund be held liable for consequential or indirect damages,
loss of profits, damage to reputation or business or any other special damages
arising under or by reason of any provision of this Agreement or for any act or
omission hereunder.
7. Reliance by the Accounting Agent on Proper Instructions and Opinions of
Counsel and Opinions of Certified Public Accountants.
(a) The Accounting Agent shall not be liable for, and shall be
indemnified by the Fund against any and all losses, costs, damages or expenses
arising from or as a result of, any action taken or omitted in reliance upon
Proper Instructions or upon any other written notice, request, direction,
instruction, certificate or other instrument believed by it to be genuine and
signed or authorized by the proper party or parties.
Proper Instructions shall include a written request, direction, instruction
or certification signed or initialed on behalf of the Fund by one or more
persons as the Board of Trustees or Directors of the Fund shall have from time
to time authorized. Those persons authorized to give Proper Instructions may be
identified by the Board of Trustees or Directors by name, title or position and
will include at least one officer empowered by the Board to name other
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individuals who are authorized to give Proper Instructions on behalf of the
Fund. Telephonic or other oral instructions or instructions given by telefax
transmission may be given by any one of the above persons and will also be
considered Proper Instructions if the Accounting Agent believes them to have
been given by a person authorized to give such instructions with respect to the
transaction involved.
With respect to telefax transmissions, the Fund hereby acknowledges that
(i) receipt of legible instructions cannot be assured, (ii) the Accounting Agent
cannot verify that authorized signatures on telefax instructions are original,
and (iii) the Accounting Agent shall not be responsible for losses or expenses
incurred through actions taken in reliance on such telefax instructions. The
Fund agrees that such telefax instructions shall be conclusive evidence of the
Fund's Proper Instruction to the Accounting Agent to act or to omit to act.
Proper Instructions given orally will be confirmed by written instructions
in the manner set forth above, including by telefax, but the lack of such
confirmation shall in no way affect any action taken by the Accounting Agent in
reliance upon such oral instructions. The Fund authorizes the Accounting Agent
to tape record any and all telephonic or other oral instructions given to the
Accounting Agent by or on behalf of the Fund (including any of its officers,
Directors, Trustees, employees or agents or any investment manager or adviser or
person or entity with similar responsibilities which is authorized to give
Proper Instructions on behalf of the Fund to the Accounting Agent.)
(b) The Accounting Agent may consult with its counsel or the
Fund's counsel in any case where so doing appears to the Accounting Agent to be
necessary or desirable. The Accounting Agent shall not be considered to have
engaged in any misconduct or to have acted negligently and shall be without
liability in acting upon the advice of its counsel or of the Fund's counsel.
(c) The Accounting Agent may consult with a certified public
accountant or the Fund's Treasurer in any case where so doing appears to the
Accounting Agent to be necessary or desirable. The Accounting Agent shall not be
considered to have engaged in any misconduct or to have acted negligently and
shall be without liability in acting upon the advice of such certified public
accountant or of the Fund's Treasurer.
8. Termination of Agreement.
(a) This Agreement shall continue in full force and effect until
terminated by the Accounting Agent or the Fund by an instrument in writing
delivered or mailed, postage prepaid, to the other party, such termination to
take effect not sooner than ninety (90) calendar days after the date of such
delivery or mailing. In the event a termination notice is given by a party
hereto, all expenses associated with the movement of records and materials and
the conversion thereof shall be paid by the Fund for which services shall cease
to be performed hereunder. The Accounting Agent shall be responsible for
completing all actions in progress when such termination notice is given unless
otherwise agreed.
Notwithstanding anything in the foregoing provisions of this clause,
if it appears impracticable in the circumstances to effect an orderly delivery
of the necessary and appropriate records of the Accounting Agent to a successor
within the time specified in the notice of termination as aforesaid, the
Accounting Agent and the Fund agree that this Agreement shall remain in full
force and effect for such reasonable period as may be required to complete
necessary arrangements with a successor.
(b) If a party hereto shall fail to perform its duties and
obligations hereunder (a "Defaulting Party") resulting in material loss to
another party ("the "Non-Defaulting Party"), the Non-Defaulting Party may give
written notice thereof to the Defaulting Party, and if such material breach
shall not have been
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remedied within thirty (30) calendar days after such written notice is given,
then the Non-Defaulting Party may terminate this Agreement by giving thirty (30)
calendar days' written notice of such termination to the Defaulting Party. If
the Accounting Agent is the Non-Defaulting Party, its termination of this
Agreement shall not constitute a waiver of any other rights or remedies of the
Accounting Agent with respect to payment for services performed prior to such
termination or rights of the Accounting Agent to be reimbursed for out-of-pocket
expenses. In all cases, termination by the Non-Defaulting Party shall not
constitute a waiver by the Non-Defaulting Party of any other rights it might
have under this Agreement or otherwise against the Defaulting Party.
(c) This Section 8 shall survive any termination of this
Agreement, whether for cause or not for cause.
9. Amendment of this Agreement. This Agreement constitutes the entire
understanding and agreement of the parties hereto with respect to the subject
matter hereof. No provision of this Agreement may be amended or terminated
except by a statement in writing signed by the party against which enforcement
of the amendment or termination is sought.
In connection with the operation of this Agreement, the Fund and the
Accounting Agent may agree in writing from time to time on such provisions
interpretive of or in addition to the provisions of this Agreement as may in
their joint opinion be consistent with the general tenor of this Agreement. No
interpretive or additional provisions made as provided in the preceding sentence
shall be deemed to be an amendment of this Agreement.
In the event any provision of this Agreement is determined to be void
or unenforceable, such determination shall not affect the remainder of this
Agreement, which shall continue to be in force.
The section headings and the use of defined terms in the singular or
plural tenses in this Agreement are for the convenience of the parties and in no
way alter, amend, limit or restrict the contractual obligations of the parties
set forth in this Agreement.
10. GOVERNING LAW AND JURISDICTION. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND BE GOVERNED BY THE LAWS OF, THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAW OF SUCH STATE. THE PARTIES HERETO
IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK AND THE FEDERAL COURTS LOCATED IN NEW YORK CITY IN THE BOROUGH OF
MANHATTAN.
11. Notices. Notices and other writings delivered or mailed postage prepaid
to a Fund addressed to the Fund at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ or to such other address as the Fund may have designated to the
Accounting Agent in writing, or to the Accounting Agent at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Manager, Fund Accounting Department, or to such
other address as the Accounting Agent may
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have designated to the Fund in writing, shall be deemed to have been properly
delivered or given hereunder to the respective addressee.
12. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Fund and the Accounting Agent and their respective successors and
assigns, provided that no party hereto may assign this Agreement or any of its
rights or obligations hereunder without the written consent of the other party.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and which
collectively shall be deemed to constitute only one instrument. This Agreement
shall become effective when one or more counterparts have been signed and
delivered by each of the parties.
14. Exclusivity. The services furnished by the Accounting Agent hereunder
are not to be deemed exclusive, and the Accounting Agent shall be free to
furnish similar services to others.
15. Authorization. The Fund hereby represents and warrants that the
execution and delivery of this Agreement have been authorized by the Fund's
Board of Directors or Trustees and that this Agreement has been signed by an
authorized officer of the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their duly authorized officers as of the date
first written above.
▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ & CO. NFJ DIVIDEND, INTEREST AND PREMIUM
STRATEGY FUND
By: By:
---------------------------------- -----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Partner Title: President
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APPENDIX A
The Fund hereby acknowledges that the Administrator is authorized to use the
following authorized sources for pricing (including corporate actions, dividends
and rights offering), and foreign exchange quotations, to assist it in
fulfilling its obligations under the aforementioned Agreement.
AUTHORIZED SOURCES
BLOOMBERG
FUND MANAGERS
FT INTERACTIVE DATA CORPORATION
REPUTABLE BROKERS
REUTERS
SUBCUSTODIAN BANKS
TELEKURS
REPUTABLE FINANCIAL PUBLICATIONS
STOCK EXCHANGES
FINANCIAL INFORMATION INC. CARD
▇▇ ▇▇▇▇▇
FRI CORPORATION
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRICING SERVICE
BRIDGE
The Fund hereby acknowledges and agrees that the Administrator shall not
guarantee and make no warranties whatsoever, with respect to the sources listed
above and to the accuracy or completeness of currency and quotations, market
information or other information. The Administrator shall have no liability to
the Fund or to any third party for any loss, damages or expenses arising from
the use of the above listed sources.
NFJ DIVIDEND, INTEREST AND PREMIUM STRATEGY FUND
By:
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
Date:
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