Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's Board and the provisions of this Agreement, BNY shall provide daily to each Fund and each Series specified on Exhibit A attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's Board and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset value. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 other than those listed on Schedule 1 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), BNY 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. BNY 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 other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such persons and is reasonably believed by BNY to be necessary or appropriate in order for BNY to perform its duties hereunder. In connection with its duties hereunder, BNY 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 BNY by a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY. BNY 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 BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service. (h) BNY may apply to an officer of any Fund for written instructions with respect to any matter arising in connection with BNY's performance hereunder for such Fund, and BNY shall not be liable for any action reasonably 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 BNY, set forth in writing any action reasonably proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 (provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions) unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the appropriate Fund or its own counsel, 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I attached hereto, BNY shall have no duty or obligation 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and Schedule I attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1) BNY, 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 by a 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 a Fund. In the event BNY'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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this subsection (1) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 8 contracts

Samples: Fund Accounting Agreement (Ing Vp Emerging Markets Fund Inc), Fund Accounting Agreement (Ing Vp Natural Resources Trust), Fund Accounting Agreement (Ing Variable Insurance Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's ’s Board and the provisions of this Agreement, BNY shall provide daily to each Fund and each Series specified on Exhibit A attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("“Class"”) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's ’s Board and as specified in the Fund's ’s then currently effective Prospectus, is at any time inconsistent with any applicable laws or regulations, the Fund shall immediately so notify BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series'’, or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' ’ 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 instruct BNY in writing to compute the value of the Securities or a Series' ’ or Class' ’ net asset value in a manner other than as specified in this paragraph. 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' ’ and Class' ’ net asset value. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial records other than those listed on Schedule 1 or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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. BNY 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 other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such persons and is reasonably believed by BNY to be necessary or appropriate in order for BNY to perform its duties hereunder. In connection with its duties hereunder, BNY 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 BNY by a Fund's ’s officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY. BNY 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 BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service. (h) BNY may apply to an officer of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action reasonably 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 BNY, set forth in writing any action reasonably proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 (provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions) unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the appropriate Fund or its own counsel, 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's ’s own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I attached hereto, BNY shall have no duty or obligation 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and Schedule I attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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 by a 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 a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this subsection (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules ~~31a-l~~ 31a-1 and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's ’s normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules ~~31a-l~~ 31a-1 and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's ’s duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's ’s standard of care.

Appears in 7 contracts

Samples: Fund Accounting Agreement (ING Emerging Markets High Dividend Equity Fund), Fund Accounting Agreement (Ing Partners Inc), Fund Accounting Agreement (ING International High Dividend Equity Income Fund)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's ’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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.~~ Mellon Corporation. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or ~~wilful~~ willful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with the BNY and to provide the BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of the BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ The BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to the BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. The BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by each Fund when acting in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by the BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNY which the BNY in its reasonable judgment deems reliable, the BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each~~ Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of the Fund and shall value the securities held by the Fund at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Fund. BNY shall provide a report of such net value to the Fund and Authorized Participants at the respective times set forth in Schedule II, as amended from time to time. To the extent valuation of securities or computation of a 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such securities and the Fund’s net asset value, or subject to the prior approval of BNY, instruct BNY in writing to value securities and compute 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 BNY, instruct BNY in writing to compute the value of the securities or net asset value in a manner other than as specified in this paragraph. 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 net asset value. (h) The Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service~~, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~. (hi) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ij) BNY 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (jk) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (kl) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1m) BNY, 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 by a 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 a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1m) even though BNY 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. (mn) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (no) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 6 contracts

Samples: Fund Administration and Accounting Agreement (ETFis Series Trust I), Fund Administration and Accounting Agreement (ETFis Series Trust I), Fund Administration and Accounting Agreement (ETFis Series Trust I)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each~~ the Fund~~'s Board~~ ’s Trustees and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund and each Series specified on Exhibit A attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each Series of the Fund and shall value the securities held by the Fund (i) the ~~"Securities"~~administrative services set forth on Schedule I attached hereto and (ii) at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY shall not provide any services relating to the management, investment advisory or sub-advisory functions of ~~any~~ the Fund, distribution of shares of ~~any~~ the Fund, maintenance of ~~any~~ the Fund's ’s financial ~~records other than those listed on Schedule 1~~ records, except to the extent specifically set forth herein or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a the Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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. BNY 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 other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., and BNY shall be deemed to have ~~committed~~ taken or omitted any ~~act~~ action taken or ~~omission of~~ omitted by any such ~~delegee~~subsidiary. (e) ~~Each~~ The Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such ~~information,~~ information or documents ~~and advice~~ relating to ~~such~~ the Fund as is within the possession or knowledge of such ~~persons and is reasonably believed by BNY to be necessary or appropriate~~ persons, in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled to rely, and shall be held harmless by ~~each~~ the Fund when acting in reliance, upon the ~~instructions, advice~~ any such information or ~~any~~ documents ~~relating to such Fund~~ provided to BNY, or upon any advice received from (i) a person reasonably believed by BNY to have been identified by ~~a Fund's officers, advisors, sponsor, distributor, legal~~ the Fund as authorized to give advice on behalf of the Fund or its advisors (each an “Authorized Person”) (ii) Fund counsel, or (iii) the Fund’s independent accountants~~, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~. BNY 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 from legal counsel or independent accountants to be provided to BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each~~ The Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY shall not be required to include as the 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. ~~Each~~ The Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies ~~such~~ the Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular securities pricing or similar service, but shall be required and obligated to maintain a subscription or access to at least one~~ securities pricing or similar service. (h) BNY may apply to an officer of ~~any~~ the Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for ~~such~~ the Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the ~~appropriate~~ 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY shall have no duty or obligation to with respect to, including, without limitation, any duty or obligation to determine, or advise or notify ~~any~~ the Fund of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable ~~to, a~~ to the Fund, (ii) the taxable nature or effect on a 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 a the Fund to its shareholders; or (iv) the effect under any federal, state, or foreign income tax laws of a the Fund making or not making any distribution or dividend payment, or any election with respect thereto. (k) BNY shall have no duties or responsibilities whatsoever with respect to the services provided hereunder except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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 by a any authorized person on behalf of 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 a the Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a the Fund or any third party described in this ~~subsection~~ (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a the Fund is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such~~ the Fund. (n) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 5 contracts

Samples: Fund Administration and Accounting Agreement (PowerShares Exchange-Traded Fund Trust II), Fund Administration and Accounting Agreement (PowerShares Exchange-Traded Fund Trust II), Fund Administration and Accounting Agreement (PowerShares Exchange-Traded Fund Trust II)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each~~ the Fund~~'s Board~~ ’s Trustees and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund and each Series specified on Exhibit A attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each Series of the Fund and shall value the securities held by the Fund (i) the ~~"Securities"~~administrative services set forth on Schedule I attached hereto and (ii) at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY shall not provide any services relating to the management, investment advisory or sub-advisory functions of ~~any~~ the Fund, distribution of shares of ~~any~~ the Fund, maintenance of ~~any~~ the Fund's ’s financial ~~records other than those listed on Schedule 1~~ records, except to the extent specifically set forth herein, or other services normally performed by the ~~Funds' respective~~ Fund’s counsel or independent auditors. (d) Upon receipt of a the Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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. BNY 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 other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., and BNY shall be deemed to have ~~committed~~ taken or omitted any ~~act~~ action taken or ~~omission of~~ omitted by any such ~~delegee~~subsidiary. (e) ~~Each~~ The Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such ~~information,~~ information or documents ~~and advice~~ relating to ~~such~~ the Fund as is within the possession or knowledge of such ~~persons and is reasonably believed by BNY to be necessary or appropriate~~ persons, in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled to rely, and shall be held harmless by ~~each~~ the Fund when acting in reliance, upon the instructions, ~~advice~~ advise or any documents ~~relating to such Fund~~ provided to BNY from (i) a person reasonably believed by ~~a Fund's officers~~BNY to have been identified by the Fund as authorized to give advice on behalf of the Fund or its advisors (each an “Authorized Person”), ~~advisors, sponsor, distributor, legal~~ (ii) Fund counsel, or (iii) the Fund’s independent accountants~~, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~. BNY 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 from legal counsel or independent accountants to be provided to BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each~~ The Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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~~ Series liabilities and ~~expenses and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY shall not be required to include as ~~Fund~~ Series 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. ~~Each~~ The Fund shall also furnish BNY with bid, offer, or market values of ~~Securities~~ securities if BNY notifies ~~such~~ the Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular securities pricing or similar service, but shall be required and obligated to maintain a subscription or access to at least one~~ securities pricing or similar service. (h) BNY may apply to an officer of ~~any~~ the Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for ~~such~~ the Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the ~~appropriate~~ Fund ~~or its own counsel~~and 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY shall have no duty or obligation to with respect to, including, without limitation, any duty or obligation to determine, or advise or notify ~~any~~ the Fund of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable ~~to, a~~ to the Fund, (ii) the taxable nature or effect on a 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 a the Fund to its shareholders; , or (iv) the effect under any federal, state, or foreign income tax laws of a the Fund making or not making any distribution or dividend payment, or any election with respect thereto. (k) BNY shall have no duties or responsibilities whatsoever with respect to the services provided hereunder except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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 by a any authorized person on behalf of 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 a the Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a the Fund or any third party described in this ~~subsection~~ (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a the Fund is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such~~ the Fund. (n) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 4 contracts

Samples: Fund Administration and Accounting Agreement (Powershares Actively Managed Exchange-Traded Fund Trust), Fund Administration and Accounting Agreement (Powershares Actively Managed Exchange-Traded Fund Trust), Fund Administration and Accounting Agreement (Powershares Actively Managed Exchange-Traded Fund Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ~~other than those listed on Schedule 1~~ 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), BNY 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. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, ~~current administrator (if any)~~ and transfer agent to cooperate with BNY and to provide BNY, upon written request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons and is reasonably believed by BNY to be necessary or appropriate~~ persons, in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY 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 BNY by ~~a Fund~~any of the aforementioned persons, provided that BNY's ~~officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by~~ actions in reliance on the foregoing are performed without violating BNY's standard of care. BNY 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 BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation reasonably deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with ~~bid, offer, or~~ market values (or fair values calculated pursuant to procedures adopted by the Fund) of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values (or fair values calculated pursuant to procedures adopted by the Fund) of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular securities pricing or similar service, but shall be required and obligated to maintain a subscription or access to at least one~~ securities pricing or similar service. (h) BNY may apply to an officer of any Fund for written instructions with respect to any matter arising in connection with BNY's performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, but BNY shall not take or omit to take any such action until it receives instructions, unless BNY reasonably believes the failure to act prior to such date could expose BNY to liability, and BNY 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 (provided that BNY has given the officer of the Funds a commercially reasonable amount of time~~ on which it reasonably believes it could be exposed to ~~respond to the request for instructions)~~ liability unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the appropriate ~~Fund~~ Fund, at the Fund's expense, or its own counsel, at its own 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, provided that if BNY seeks advice of counsel and intends to rely thereon, it will where circumstances permit notify the Fund of such reliance. BNY may, with respect to questions of law specifically regarding an Account, obtain the advice of counsel and shall ~~provide prompt notification~~ be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice, provided that BNY shall not be so protected unless the Fund shall have received prior notice from BNY of the substance of the advice of counsel and BNY's intent to rely thereon, such notice to be provided to the ~~appropriate~~ Fund as far in advance of such reliance as is reasonably possible. In the event ~~that it acts upon advice or opinion of counsel that is inconsistent with instructions~~BNY does not provide such prior notice, ~~procedures, or requests provided by the Fund. The appropriate Fund~~ BNY shall not be liable ~~for~~ unless acting in accordance with such advice constitutes the ~~fees and expenses of its counsel and for the reasonable fees and expense of~~ BNY's own ~~counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund~~gross negligence or willful misconduct. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY shall have no ~~duty or obligation 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 ~~its~~ 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) ~~BNY~~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 a 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 a Fund. In the event BNY'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 BNY which BNY in its reasonable judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall ~~maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY 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 BNY~~outside the Bank, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially beyond BNY's reasonable ~~best efforts to resume performance as soon as practicable under the circumstances~~control. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 4 contracts

Samples: Fund Administration and Accounting Agreement (Baillie Gifford Funds), Fund Administration and Accounting Agreement (Clarion Value Fund Master LLC), Fund Administration and Accounting Agreement (Clarion CMBS Value Fund Inc)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each~~ the Fund~~'s Board~~ ’s Trustees and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund and each Series specified on Exhibit A attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each Series of the Fund and shall value the securities held by the Fund (i) the ~~"Securities"~~administrative services set forth on Schedule I attached hereto and (ii) at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY shall not provide any services relating to the management, investment advisory or sub-advisory functions of ~~any~~ the Fund, distribution of shares of ~~any~~ the Fund, maintenance of ~~any~~ the Fund's ’s financial ~~records other than those listed on Schedule 1~~ records, except to the extent specifically set forth herein, or other services normally performed by the ~~Funds' respective~~ Fund’s counsel or independent auditors. (d) Upon receipt of a the Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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. BNY 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 other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., and BNY shall be deemed to have ~~committed~~ taken or omitted any ~~act~~ action taken or ~~omission of~~ omitted by any such ~~delegee~~subsidiary. (e) ~~Each~~ The Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such ~~information,~~ information or documents ~~and advice~~ relating to ~~such~~ the Fund as is within the possession or knowledge of such ~~persons and is reasonably believed by BNY to be necessary or appropriate~~ persons, in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled to rely, and shall be held harmless by ~~each~~ the Fund when acting in reliance, upon the instructions, advice or any documents ~~relating to such Fund~~ provided to BNY from (i) a person reasonably believed by ~~a Fund's officers, advisors, sponsor, distributor, legal~~ BNY to have been identified by the Fund as authorized to give advice on behalf of the Fund or its advisors (each an “Authorized Person”) (ii) Fund counsel, or (iii) the Fund’s independent accountants~~, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~. BNY 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 from legal counsel or independent accountants to be provided to BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each~~ The Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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~~ Series liabilities and ~~expenses and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY shall not be required to include as ~~Fund~~ Series 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. ~~Each~~ The Fund shall also furnish BNY with bid, offer, or market values of ~~Securities~~ securities if BNY notifies ~~such~~ the Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular securities pricing or similar service, but shall be required and obligated to maintain a subscription or access to at least one~~ securities pricing or similar service. (h) BNY may apply to an officer of ~~any~~ the Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for ~~such~~ the Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the appropriate Fund or its own counsel, 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY shall have no duty or obligation to with respect to, including, without limitation, any duty or obligation to determine, or advise or notify ~~any~~ the Fund of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable ~~to, a~~ to the Fund, (ii) the taxable nature or effect on a 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 a the Fund to its shareholders; or (iv) the effect under any federal, state, or foreign income tax laws of a the Fund making or not making any distribution or dividend payment, or any election with respect thereto. (kj) BNY shall have no duties or responsibilities whatsoever with respect to the services provided hereunder except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1k) BNY, 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 by a any authorized person on behalf of 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 a the Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a the Fund or any third party described in this ~~subsection~~ (1l) even though BNY 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. (ml) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a the Fund is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such~~ the Fund. (nm) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 4 contracts

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each Fund~~the Trust's Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to ~~each Fund and each Series specified~~ the Trust (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY ~~shall not~~ may, pursuant to a separate agreement, provide ~~any~~ services relating to the ~~management, investment advisory or~~ sub-advisory functions of ~~any Fund, distribution of shares of any Fund,~~ the Trust or maintenance of ~~any Fund~~the Trust's financial ~~records other than those listed on Schedule 1~~ records, but shall have no duty or ~~other~~ obligation to provide such services ~~normally performed by the Funds' respective counsel or independent auditors~~under this Agreement. (d) Upon receipt of ~~a Fund~~the Trust's prior written ~~consent (which shall not be unreasonably withheld)~~consent, BNY 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; provided, however, that no such delegation of its duties and obligations hereunder shall discharge BNY from its obligations hereunder, and provided further that BNY shall not be liable for any delegee or agent consented to by the Trust. Notwithstanding the foregoing, no ~~Fund~~ Trust consent shall be required for any such delegation to any other subsidiary of The Bank of New York Company, ~~Inc.~~ Inc., and BNY hereunder shall ~~not~~ be as liable ~~to any Fund~~ for ~~any loss or damage arising out of, or in connection with,~~ the ~~actions~~ acts or omissions ~~to act~~ of any ~~delegee~~ such subsidiary as if such acts or agent utilized hereunder other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegeeomissions were its own. (e) ~~Each Fund~~ The Trust shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, ~~current administrator (if any)~~ and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to ~~such Fund~~ the Trust as is within the possession or knowledge of such ~~persons and is reasonably believed by BNY to be necessary or appropriate~~ persons, in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled to rely, and shall be held harmless by ~~each Fund~~ the Trust when acting in reliance, upon the ~~instructions~~foregoing or upon any Proper Instructions, as that term is defined herein in Section 6, advice or any documents relating to ~~such Fund~~ the Trust provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and~~ any of the individuals listed on Exhibit B attached hereto or any individual reasonably believed by BNY to be ~~accurate by BNY~~one of the listed individuals (each an "Authorized Person"). BNY shall not be liable for any loss, damage or expense resulting from or arising out of the failure of the ~~Fund~~ Trust to cause any ~~information~~information or, documents ~~or advice~~ to be provided to BNY as provided herein. All fees or costs charged by such persons shall be borne by the ~~appropriate Fund~~Trust. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each Fund~~ The Trust shall furnish BNY with Proper Instructions containing any and all instructions, explanations, information, specifications and documentation reasonably deemed ~~reasonably~~ necessary by BNY 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~~ Trust liabilities and ~~expenses and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY shall not be required to include as ~~Fund~~ Trust liabilities and expenses, nor as a reduction of net asset value, any accrual for any federal, ~~state,~~ state or foreign income taxes unless the ~~Fund~~ Trust shall have specified to BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. ~~Each Fund~~ The Trust shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies ~~such Fund~~ the Trust that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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~~ Trust also may furnish BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required under this Agreement to determine, ~~but~~ or have any obligation with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Trust. (h) BNY may apply to an officer of ~~any Fund~~ the Trust for written ~~instructions~~ Proper Instructions with respect to any matter arising in connection with BNY's performance hereunder for ~~such Fund~~the Trust, and BNY shall not be liable for any action ~~reasonably~~ taken or omitted to be taken by it in good faith in accordance with such ~~instructions~~Proper Instructions. Such application ~~for instructions~~ may, at the option of BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be ~~taken~~taken (which date shall be reasonably selected by BNY given the particular circumstances), and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received ~~written instructions~~ Proper Instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the ~~appropriate Fund~~ Trust or its own external counsel, at the Trust's expense, or with its internal counsel, with respect to any matter arising in connection with the services to be performed by BNY under this Agreement, and shall promptly advise the Trust of the advice or opinion of such counsel, provided, however, that unless the circumstances do not reasonably permit the giving of notice to the Trust, BNY shall give to the Trust notice of the counsel it intends to use and await the Trust's approval thereof, which approval shall not be unreasonably withheld, except that no such notice or approval shall be required with respect to any matter or question of law referred solely to BNY's in-house counsel, and BNY shall give prompt after the fact notice where prior notice is not given. BNY shall be fully protected with respect to anything done or omitted by it in good faith in accordance with the advice or opinion of either Trust counsel or its own counsel, provided such ~~counsel. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon~~ advice or opinion ~~of counsel that~~ is ~~inconsistent~~ consistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fundgenerally accepted industry legal standards. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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~~ the Trust of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, ~~a Fund~~the Trust, (ii) the taxable nature or effect on ~~a Fund~~ the Trust 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~~ the Trust to its shareholders; or (iv) the effect under any federal, state, or foreign income tax laws of ~~a Fund~~ the Trust making or not making any distribution or dividend payment, or any election with respect thereto. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or ~~obligation~~ obligation, except for those set forth herein, shall be implied against BNY in connection with this Agreement. (1l) BNY, 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~~Proper Instructions, explanations, information, specifications and documentation furnished to it by ~~a Fund~~ Authorized Persons and shall have no duty or obligation to review the accuracy, validity or propriety of such ~~instructions~~Proper 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~~ Series shares effected by or on behalf of ~~a Fund~~the Trust. In the event BNY'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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by ~~a Fund~~ the Trust or any third party described in this ~~subsection~~ (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to ~~a Fund~~ the Trust is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such Fund~~the Trust. (n) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation reasonably deemed necessary by BNY in the performance of its duties under this Agreement~~. (o) BNY shall, as agent for~~ . Upon the ~~Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve~~ occurrence of any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds delay or ~~provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds,~~ failure BNY shall ~~provide in hard copy, computer disc, on micro-film or other format~~ use commercially reasonable best efforts to resume performance as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except soon as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances~~, BNY shall have no liability for any failure to do so~~. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 3 contracts

Samples: Fund Administration and Accounting Agreement (WisdomTree Trust), Fund Administration and Accounting Agreement (WisdomTree Trust), Fund Administration and Accounting Agreement (WisdomTree Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each Fund~~the Trust's ~~Board~~ Trustees and the provisions of this Agreement, BNY shall provide ~~daily~~ to ~~each Fund and each Series specified~~ the Trust (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY shall not provide any services relating to the management, investment advisory or sub-advisory functions of ~~any Fund~~the Trust, distribution of shares of any Fund, maintenance of ~~any Fund~~the Trust's financial ~~records other than those listed on Schedule 1~~ records, except to the extent specifically set forth herein or other services normally performed by the ~~Funds~~Trusts' respective counsel or independent auditors. (d) Upon receipt of ~~a Fund~~the Trust's prior written consent (which shall not be unreasonably withheld), BNY 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~~ Trust consent shall be required for any such delegation to any other subsidiary of The Bank of New York Company, Inc. BNY shall not be liable to the Trust or 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 unaffiliated with BNY and utilized hereunder ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or ~~wilful~~ willful misconduct in the selection of such delegee or agent~~. With~~ , provided, however, that BNY shall use commercially reasonable efforts to pursue any rights or remedies in respect to of such loss or damage which BNY may have against any such unaffiliated delegee or agent ~~which is a subsidiary~~ in the event of ~~The Bank~~ its default; any recovery shall be for the account of ~~New York Company~~the Trust and applicable Fund, ~~Inc.,~~ and BNY shall be ~~deemed to have committed~~ reimbursed by the Trust on behalf of the applicable Fund for any ~~act or omission of such delegee~~cost incurred in pursuing the same. (e) ~~Each Fund~~ The Trust shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such ~~information,~~ information or documents ~~and advice~~ relating to ~~such Fund~~ the Trust as is within the possession or knowledge of such ~~persons and is reasonably believed by BNY to be necessary or appropriate~~ persons, in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled to rely, and shall be held harmless by ~~each Fund~~ the Trust when acting in reliance, upon the instructions, advice or any documents ~~relating to such Fund~~ provided to BNY from (i) a person reasonably believed by ~~a Fund's officers~~BNY to have been identified by the Trust as authorized to give advice on behalf of the Trust or its advisors (each an "Authorized Person"), ~~advisors, sponsor, distributor, legal~~ (ii) Trust counsel, (iii) the Trust's independent accountants, ~~current administrator~~ (~~if any~~iv) the Trust's adviser and ~~transfer agent and reasonably believed to be accurate by BNY~~(v) the Trust's distributor. BNY shall not be liable for any loss, damage or expense resulting from or arising out of the failure of the ~~Fund~~ Trust to cause any information, documents or advice from legal counsel or independent accountants to be provided to BNY as provided herein. All fees or costs charged by such persons shall be borne by the ~~appropriate Fund~~Trust. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for the Trust or any Fund in other capacities or acting for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder. The Trust acknowledges that in performing services under this Agreement, BNY may be required to review or calculate amounts due BNY or its affiliates from the Trust and its respective Funds, and agrees that such conflicting interests shall not prevent BNY from so acting. (g) ~~Each Fund~~ The Trust shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 ~~and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~for each Fund. BNY 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~~ Trust shall have specified to BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. ~~Each Fund~~ The Trust shall also furnish BNY with bid, offer, or market values of ~~Securities~~ the portfolio securities ("Securities") of any Fund if BNY notifies ~~such Fund~~ the Trust that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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~~ Trust also may furnish BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Trust. (h) BNY may apply to an officer of ~~any Fund~~ the Trust for written instructions with respect to any matter arising in connection with BNY's performance hereunder for ~~such Fund~~the Trust, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) If BNY shall be in doubt as to any question of law pertaining to any action it should or should not take, BNY may, with prior notice to the Trust, request advice from outside counsel of its own choosing (who may ~~consult with~~ be counsel for the Trust, the Trust's investment adviser or BNY, at the option of BNY), provided, however, that the Trust may request BNY to obtain and consider advice of counsel for the Trust or its investment advisor before engaging counsel of its own choosing. Expense of counsel to the ~~appropriate Fund~~ Trust or its ~~own counsel, and~~ investment advisor 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided borne by the Trust on behalf of the applicable Fund~~. The appropriate Fund~~ ; expense of other counsel shall be ~~liable for the fees and expenses of its counsel and for the reasonable fees and expense of~~ borne by BNY~~'s own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund~~. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify ~~any Fund~~ the Trust of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, ~~a Fund,~~ any Fund (ii) the taxable nature or effect on a any 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 any Fund to its shareholders; , or (iv) the effect under any federal, state, or foreign income tax laws of a any Fund making or not making any distribution or dividend payment, or any election with respect thereto. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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 by ~~a Fund~~ any Authorized Person on behalf of the Trust 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'~~ the liabilities and ~~expenses~~expenses of any Fund; 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 the shares of any Fund ~~shares~~ effected by or on behalf of ~~a Fund~~the Trust. In the event BNY'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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by ~~a Fund~~ the Trust or any third party described in this ~~subsection~~ paragraph (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a any Fund is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such Fund~~the Trust. (n) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 3 contracts

Samples: Fund Administration and Accounting Agreement (First Trust Exchange-Traded Alphadex Fund), Fund Administration and Accounting Agreement (First Trust Exchange-Traded Fund Ii), Fund Administration and Accounting Agreement (First Trust Exchange-Traded Fund Ii)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each Fund's~~ the Trust’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to ~~each Fund and each Series specified~~ the Trust (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY shall not provide any services relating to the management, investment advisory or sub-advisory functions of ~~any Fund~~the Trust pursuant to this Agreement or its terms or, as related to the maintenance of the Trust’s shareholder records. BNY shall in no event provide services relating to the distribution of shares of ~~any Fund, maintenance of any Fund's financial records other than those listed on Schedule 1~~ the Trust or other services normally performed by the ~~Funds'~~ Trust’s respective distributor, counsel or independent auditors. (d) Upon receipt of ~~a Fund's~~ the Trust’s prior written ~~consent~~ consent, (which shall not be unreasonably withheld), ) BNY 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~~appropriate provided, however, that no ~~Fund consent shall be required for any~~ such delegation of its duties or obligations hereunder shall discharge BNY from its obligations to ~~any other subsidiary~~ provide or secure the provision of ~~The Bank of New York Company, Inc.~~ services hereunder. BNY 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 permitted delegee or agent utilized hereunder ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or ~~wilful~~ willful misconduct in the selection of such delegee or agent. ~~With respect~~ Notwithstanding the foregoing, no Trust consent shall be required for any such delegation to any ~~delegee or agent which is a subsidiary~~ other affiliate of The Bank of New York ~~Company~~Mellon Corporation (“BNY Affiliates”), ~~Inc.,~~ and BNY shall ~~be deemed to have committed any act~~ remain liable for the acts or ~~omission~~ omissions of such ~~delegee~~BNY Affiliate as if performed directly by BNY as contemplated hereunder. (e) ~~Each Fund~~ The Trust shall cause its officers, ~~advisors~~advisers, sponsor, distributor, legal counsel, (subject to applicable privilege), independent accountants, current administrator (if any), transfer agent, and any other service provider (“Trust Parties”) ~~and transfer agent~~ to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to ~~such Fund~~ the Trust as is within the possession or knowledge of such ~~persons~~ persons, and which, BNY believes in good faith, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled to ~~rely~~rely in good faith, and shall be held harmless by ~~each Fund~~ the Trust when acting in good faith reliance, upon the ~~instructions~~foregoing, ~~advice~~ upon any Proper Instructions, as that term is defined herein in Section 6, or any documents relating to ~~such Fund~~ the Trust provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably~~ any of the individuals listed on Exhibit B attached hereto or any individual believed in good faith by BNY to be ~~accurate~~ an Authorized Person (each an “Authorized Person”). (f) The BNY shall not be responsible for, under any duty to inquire into, or be deemed to make any assurances with respect to the accuracy, validity or propriety of any information, documents or advice provided to the BNY by ~~BNY~~any of the Trust Parties. The BNY 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 BNY as provided ~~herein~~above and shall be held harmless by each Fund when acting in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the ~~appropriate Fund. (f)~~ Trust. Services performed by the BNY hereunder may rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNY which the BNY in its reasonable judgment deems reliable. Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each~~ Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of the Fund and shall value the securities held by the Fund at such times and dates and in the manner specified in the then effective Prospectus of the Trust and in accordance with the Trust’s valuation procedures actually provided to BNY, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Trust. BNY shall provide a report of such net asset value to the Trust and Authorized Participants at the respective times set forth in Schedule II, as amended from time to time. To the extent valuation of securities or computation of a net asset value as specified in the Trust’s then effective Prospectus and valuation procedures actually provided to BNY are at any time inconsistent with any applicable laws or regulations, the Trust shall immediately so notify BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such securities and the Fund’s net asset value, or subject to the prior approval of BNY, instruct BNY in writing to value securities and compute 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 BNY, instruct BNY in writing to compute the value of the securities or net asset value in a manner other than as specified in this paragraph. 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 and valuation procedures of the Trust. The Trust shall have sole authority and responsibility for determining the method of valuation of securities and the method of computing net asset value. (h) The Fund shall furnish BNY with Proper Instructions as that term is defined herein in section 6, containing any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY in good faith and in the performance of its duties hereunder, including, without limitation, valuation procedures describing the amounts or written formula for calculating the amounts and times of accrual of Fund liabilities and ~~expenses and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of ~~Securities~~ securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of ~~Securities~~ securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service~~, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~. (hi) BNY may apply to an officer of ~~any Fund~~ the Trust for ~~written instructions~~ Proper Instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ taken or omitted to be taken by it in good faith in accordance with such ~~instructions~~Proper Instructions. Such application ~~for instructions~~ may, at the option of BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ij) BNY may consult with counsel to the appropriate Fund or its own counsel, at such Fund’s expense, provided that such advice or counsel provided to BNY counsel is consistent with industry legal standards, and shall be fully protected with respect to anything done or omitted by it in good faith and in accordance with the advice or opinion of ~~such~~ Trust counsel. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (jk) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY shall have no duty or obligation 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 its 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. (kl) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation except those set forth herein shall be implied against BNY in connection with this Agreement. (1m) BNY, 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 by a Fund and BNY shall have no duty or obligation to review the accuracy, validity or propriety of ~~such instructions~~Proper Instructions, explanations, information, specifications or ~~documentation~~documentation furnished by Authorized Persons , including, without limitation, evaluations of securities; valuation procedures describing the amounts or formula for calculating the amounts and times of accrual of ~~Series'~~ Fund liabilities and expenses; the amounts receivable and the amounts payable on the sale or purchase of ~~Securities~~securities; and amounts receivable or amounts payable for the sale or redemption of Fund shares effected by or on behalf of a ~~Fund~~Fund and may rely on the same fully. In the event BNY's ’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 BNY which BNY in ~~its judgment deems~~ good fxxxx xxxxx reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection (1)~~ paragraph even though BNY 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. (mn) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (no) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or (third-party) computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the sameservices. BNY ~~should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. Nor~~ shall ~~BNY~~ not 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 BNY (including any BNY delegate other than a BNY Affiliate) to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement~~. (o) BNY shall, as agent for~~ . Upon the ~~Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve~~ occurrence of any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds delay or ~~provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds~~failure, BNY shall ~~provide in hard copy, computer disc, on micro-film or other format~~ use commercially reasonable efforts to resume performance as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except soon as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, . BNY ~~shall have no liability for any failure to do so. (r) BNY hereby specifically agrees~~ further represents that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities has developed and ~~Exchange Commission thereunder~~implemented commercially reasonable business continuity and disaster recovery policies, ~~provided the same do not change BNY's standard of care~~procedures and facilities.

Appears in 2 contracts

Samples: Fund Administration and Accounting Agreement (Columbia ETF Trust), Fund Administration and Accounting Agreement (Grail Advisors ETF Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's ’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified on Exhibit A attached hereto~~ the services ~~described in~~ set forth on Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's Board and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valueI attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial records ~~other than those listed on Schedule 1~~ 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), BNY 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. BNY 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 other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with BNY and to provide BNY, upon reasonable request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which BNY reasonably believes is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. BNY 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 BNY as provided herein and shall be held harmless by each Fund when acting in good faith reliance upon such information, documents or advice relating to such Fund, provided that BNY has carried out its duties in accordance with its standard of care as set forth herein. All fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by BNY which BNY in its reasonable judgment deems reliable, BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (fe) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder. (f) Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each Fund and shall value the securities held by the Fund at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Fund. BNY shall provide a report of such net value to the Fund and Authorized Participants at the respective times set forth in Schedule I, as amended from time to time. To the extent valuation of securities or computation of a 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such securities and the Fund’s net asset value, or subject to the prior approval of BNY, instruct BNY in writing to value securities and compute 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 BNY, instruct BNY in writing to compute the value of the securities or net asset value in a manner other than as specified in this paragraph. 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 net asset value. (g) ~~Each~~ The Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY in its reasonable 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service~~, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~. (h) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and in the absence of manifest error, BNY shall not be liable for any action ~~reasonably~~ 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 BNY,~~ shall set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by ~~BNY~~ BNY, in good faith, with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY shall not be liable for any action taken or omitted to be taken in good faith accordance with a proposal included in any such application on or after the date specified therein ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the appropriate Fund ~~or its own counsel,~~ and shall be fully protected with respect to anything done or omitted by it provided that BNY acts in good faith and without negligence or willful misfeasance in ~~accordance with the~~ carrying out such advice or opinion of such ~~counsel. BNY shall provide prompt notification~~ counsel to the ~~appropriate Fund in the event that it acts upon advice~~ Fund, and provided further that, any such action or ~~opinion of counsel that~~ omission by BNY is ~~inconsistent~~ consistent with ~~instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees~~ BNY’s rights and ~~expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund~~responsibilities under this Agreement. (j) Notwithstanding any other provision contained in this Agreement or Schedule I attached hereto, BNY shall have no ~~duty or obligation 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~~reclaims (provided that, certain services relating to tax reclaims may be provided by BNY subject to the terms and conditions of a custodial services agreement), 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and Schedule I attached hereto, and no covenant or ~~obligation~~ obligation, except for those set forth herein, shall be implied against BNY in connection with this Agreement. (1l) BNY, 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 by on behalf of a ~~Fund~~ 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 a Fund. In the event BNY's ’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 BNY which BNY in its reasonable judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this subsection (1m) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall ~~maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY shall~~ not be responsible for delays or errors which occur by reason of circumstances beyond its reasonable control in the performance of its duties under this Agreement, including, without limitation, labor difficulties within or without BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY or a BNY affiliate, to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. Upon the occurrence of any such delay or failure BNY shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. (o) The books and records pertaining to the Funds which are in possession of BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the ~~Funds~~ Funds. Such books and records shall be ~~surrendered to the Funds or provided to their regulators promptly upon request~~ prepared and maintained by BNY as required by the ~~Funds in~~ 1940 Act and the ~~form in which~~ rules thereunder, with particular attention to Section 31 and Rules 31a-1 and 31a-2 thereunder. The Funds, or their authorized representatives, shall have access to such books and records ~~have been maintained and preserved~~during BNY’s normal business hours. Upon the reasonable request of a Fund, copies of any such books and records shall be provided by BNY to the ~~Funds~~Fund or its authorized representative as soon as practicable under the circumstances. Upon the request of a Fund, BNY shall provide in hard ~~copy,~~ copy or on computer ~~disc, on micro-film or other format as the Funds or their regulators shall request,~~ disc any records ~~included in any such delivery~~ which are maintained by BNY on a computer disc, or are ~~otherwise~~ similarly maintained~~. (q) All books, records, information and data pertaining to~~ . In the ~~business~~ event of the termination of this Agreement, the Funds~~, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential~~ ’ books and ~~shall not~~ records will be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice returned to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do soupon request. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 2 contracts

Samples: Fund Administration and Accounting Agreement (Reality Shares ETF Trust), Fund Administration and Accounting Agreement (Reality Shares ETF Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each ~~Fund's Board~~ Fund and the provisions of this Agreement, BNY shall provide ~~daily~~ to ~~each Fund and each Series specified on Exhibit A attached hereto the services described in Schedule I, as~~ such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each Series of the Fund and shall value the securities held by the Fund (i) the ~~"Securities"~~administrative services set forth on Schedule I attached hereto, and (ii) at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY shall not provide ~~any~~ services relating to the management, investment advisory or sub-advisory functions of any Fund, distribution of ~~shares~~ membership interests of any Fund, ~~maintenance of any Fund's financial records other than those listed on Schedule 1~~ or other services normally performed by the ~~Funds' respective~~ Fund’s counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY may delegate any of its duties and obligations hereunder to such Fund to any delegee or agent whenever and on such terms and conditions as it deems necessary or appropriate. Notwithstanding the foregoing, no ~~Fund~~ Fund’s consent shall be required for any such delegation to any other subsidiary of The Bank of New York ~~Company~~Mellon Corporation (hereinafter a “BNY Affiliate”) notwithstanding the domicile of such Bank Affiliate, ~~Inc.~~ and BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or ~~wilful~~ willful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company~~, ~~Inc.,~~ provided that BNY shall be ~~deemed~~ liable for the acts or omissions of any BNY Affiliate to ~~have~~ the same extent it would be liable under the terms hereof had it committed ~~any~~ such act or omission of and not delegated the same, and BNY shall notify each affected Fund upon any such ~~delegee~~delegation to a BNY Affiliate. (e) Each Fund shall cause its officers, managers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to ~~such~~ that Fund as is within the possession or knowledge of such persons ~~and is reasonably believed by BNY to be necessary or appropriate~~ in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled reasonably to rely, and shall be held harmless by each Fund when acting in reliance, upon the instructions, advice or any documents relating to ~~such~~ a Fund provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. BNY shall not be liable for any loss, damage or expense resulting from or arising out of the failure of ~~the~~ a Fund to cause any information, documents or advice to be provided to BNY as provided herein, provided BNY acts without negligence or willful misconduct. All fees or costs charged by such persons shall be borne by the ~~appropriate~~ relevant Fund. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of or BNY Affiliate or any officer or employee thereof from acting for or with any third ~~parties,~~ parties and providing services similar or identical to some or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Fund. (h) BNY may apply to an officer of ~~any~~ a Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ taken or ~~omitted to be~~ not taken by it in good faith in accordance with such instructions. Such application for instructions may, at the option of BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to ~~the appropriate~~ a 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 after consultation with the Fund in accordance with the advice or opinion of such counsel. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this ~~Agreement~~ Agreement, but to the extent expressly otherwise provided in Schedules I or ~~Schedule I~~ II attached hereto, BNY shall have no duty or obligation to with respect to, including, without limitation, any duty or obligation to determine, or advise or notify ~~any~~ a Fund of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, a such Fund, (ii) the taxable nature or effect on a such Fund or its ~~shareholders~~ members 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~~ other amount paid, payable or deemed paid, by a such Fund to its ~~shareholders~~members; or (iv) the effect under any federal, state, foreign, or ~~foreign~~ other applicable income tax laws of a such Fund making or not making any distribution or ~~dividend~~ other payment, or any election with respect thereto. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and Schedule I attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1) BNY, in performing the services required of it under the terms of this Agreement, shall be entitled reasonably to rely fully on the accuracy and validity of any and all instructions, explanations, information, specifications and documentation furnished to it by a 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'~~ a Fund’s 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~~ membership interests effected by or on behalf of a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, or from a broker-dealer selected by BNY, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ sub-section (1k) even though BNY 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. (m1) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such~~ the Fund. (nm) Subject to the provisions of the Agreement, BNY shall ~~maintain~~ compute the net asset value per share of membership interest of each Fund and shall value the Securities held by such ~~back-up system(s),~~ Fund at such times and ~~disaster recovery plan(s), as are required by its regulators~~ dates and ~~all laws applicable to it. BNY shall not be responsible for delays or errors which occur by reason of circumstances beyond its control~~ in the ~~performance~~ manner specified in the then currently effective Confidential Offering Memorandum of ~~its duties under this Agreement~~such Fund, except that notwithstanding any language in the Confidential Offering Memorandum, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, ~~labor difficulties within~~ those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely for each Fund. BNY shall provide a report of such net value to the Fund and Authorized Participants at the respective times agreed to between the parties from time to time. To the extent valuation of Securities or ~~without~~ computation of a Fund’s net asset value as specified in the Fund’s then currently effective Confidential Offering Memorandum is at any time inconsistent with any applicable laws or regulations, such Fund shall immediately so notify BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and net asset value, or subject to the prior approval of BNY, ~~mechanical breakdowns~~instruct BNY in writing to value Securities and compute net asset value in a manner which such Fund then represents in writing to be consistent with all applicable laws and regulations. Such Fund may also from time to time, ~~flood~~ subject to the prior approval of BNY, instruct BNY in writing to compute the value of the Securities or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) net asset value in a manner other than as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. Nor shall BNY be responsible for delays or failures to supply the information or services specified in this ~~Agreement where~~ sub-section (m). By giving such ~~delays~~ instruction, such Fund shall be deemed to have represented that such instruction is consistent with all applicable laws and regulations and its then currently effective Confidential Offering Memorandum. Each Fund shall have sole responsibility for determining the method of valuation of Securities and the method of computing net asset value. (n) In providing the services hereunder BNY is authorized to utilize any legal, tax or ~~failures are caused~~ other regulatory, compliance, or monitoring services, in each case not a BNY Affiliate, reasonably believed by ~~the failure~~ BNY to be reliable to provide information. Each Fund agrees that BNY shall not be liable for any loss, damage or expense incurred as a result of errors or omissions of any ~~person(s) other than BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary~~ vendor utilized by BNY ~~in the performance~~ or any permitted delegee or agent hereunder, and that no such vendor shall be an agent or delegee of ~~its duties under this Agreement~~BNY. (o) BNY ~~shall,~~ shall have no duties or responsibilities whatsoever except such duties and responsibilities as ~~agent for the Funds, maintain~~ are specifically set forth in this Agreement and ~~keep current the books, accounts and other documents, if any, listed in Schedule~~ Schedules I and ~~preserve any such books~~II attached hereto, ~~accounts~~ and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents no covenant or obligation shall be ~~made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by~~ implied against BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with ~~the performance of BNY's duties under~~ this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do soAgreement. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 2 contracts

Samples: Services Agreement (GreenHaven Coal Fund), Services Agreement (Greenhaven Coal Index Fund)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's ’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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.~~ Mellon Coporation. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with the BNY and to provide the BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of the BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ The BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to the BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. The BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by each Fund when acting in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by the BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNY which the BNY in its reasonable judgment deems reliable, the BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each~~ Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of the Fund and shall value the securities held by the Fund at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Fund. BNY shall provide a report of such net value to the Fund and Authorized Participants at the respective times set forth in Schedule II, as amended from time to time. To the extent valuation of securities or computation of a 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such securities and the Fund’s net asset value, or subject to the prior approval of BNY, instruct BNY in writing to value securities and compute 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 BNY, instruct BNY in writing to compute the value of the securities or net asset value in a manner other than as specified in this paragraph. 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 net asset value. (h) The Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service~~, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~. (hi) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ij) BNY 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (jk) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (kl) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1m) BNY, 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 by a 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 a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1m) even though BNY 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. (mn) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (no) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 2 contracts

Samples: Fund Administration and Accounting Agreement (AdvisorShares Trust), Fund Administration and Accounting Agreement (AdvisorShares Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each Fund~~the Trust's ~~Board~~ trustees and the provisions of this Agreement, BNY shall provide ~~daily~~ to ~~each Fund and each Series specified~~ the Trust (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY shall not provide any services relating to the management, investment advisory or sub-advisory functions of ~~any Fund~~the Trust, distribution of shares of ~~any Fund~~the Trust, maintenance of ~~any Fund~~the Trust's financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the ~~Funds~~Trusts' respective counsel or independent auditors. (d) Upon receipt of ~~a Fund~~the Trust's prior written consent (which shall not be unreasonably withheld), BNY 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; provided, however, that no such delegation of its duties and obligations hereunder shall discharge BNY from its obligations hereunder. Notwithstanding the ~~foregoing~~foregoing consent provision, no ~~Fund~~ Trust consent shall be required for any such delegation to any other subsidiary of The Bank of New York Company, Inc. (an "Affiliate"). BNY shall not be liable to ~~any Fund~~ the Trust 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or ~~wilful~~ wilfull misconduct in the selection of such delegee or agent~~. With respect to any~~ ; provided, however, that if such delegee or agent ~~which~~ is ~~a subsidiary of The Bank of New York Company, Inc.~~an Affiliate, BNY shall be ~~deemed~~ responsible, to ~~have committed any act or omission~~ the extent provided in Section 6 hereof, for all acts of such ~~delegee~~Affiliate as if such acts were its own. (e) ~~Each Fund~~ The Trust shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to ~~such Fund~~ the Trust as is within the possession or knowledge of such ~~persons and is reasonably believed by BNY to be necessary or appropriate~~ persons, in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled to rely, and shall be held harmless by ~~each Fund~~ the Trust when acting in reliance, upon the instructions, advice or any documents relating to ~~such Fund~~ the Trust provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. BNY shall not be liable for any loss, damage or expense resulting from or arising out of the failure of the ~~Fund~~ Trust to cause any information, documents or advice to be provided to BNY as provided herein. All fees or costs charged by such persons shall be borne by the ~~appropriate Fund~~Trust. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each Fund~~ The Trust shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNY 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~~ Trust liabilities and ~~expenses and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY shall not be required to include as ~~Fund~~ the Trust liabilities and expenses, nor as a reduction of net asset value, any accrual for any federal, state, or foreign income taxes unless the ~~Fund~~ Trust shall have specified to BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. ~~Each Fund~~ The Trust shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies ~~such Fund~~ the Trust that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY in its reasonable judgment deems reliable at the time such information is required for calculations hereunder. At any time and from time to time, the ~~Fund~~ Trust also may furnish BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular securities pricing or similar service, but shall be required and obligated to maintain a subscription or access to at least one~~ securities pricing or similar service. (h) BNY may apply to an officer of ~~any Fund~~ the Trust for written instructions with respect to any matter arising in connection with BNY's performance hereunder for ~~such Fund~~the Trust, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the ~~appropriate Fund~~ Trust or its own counsel, at the Trust'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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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~~ the Trust of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable ~~to, a Fund~~to the Trust, (ii) the taxable nature or effect on ~~a Fund~~ the Trust 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~~ the Trust to its shareholders; or (iv) the effect under any federal, state, or foreign income tax laws of ~~a Fund~~ the Trust making or not making any distribution or dividend payment, or any election with respect thereto. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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 by ~~a Fund~~ the Trust 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~~ Trust shares effected by or on behalf of ~~a Fund~~the Trust. In the event BNY'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 BNY which BNY in its reasonable judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by ~~a Fund~~ the Trust or any third party described in this subsection (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to ~~a Fund~~ the Trust is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such Fund~~the Trust. (n) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY shall not be responsible for delays or errors which occur by reason of circumstances beyond its reasonable control in the performance of its duties under this Agreement, including, without limitation, labor difficulties ~~within or without~~ outside of BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement~~. (o) BNY shall, as agent for~~ . Upon the ~~Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve~~ occurrence of any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds delay or ~~provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds,~~ failure BNY shall ~~provide in hard copy, computer disc, on micro-film or other format~~ use commercially reasonable best efforts to resume performance as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except soon as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances~~, BNY shall have no liability for any failure to do so~~. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 2 contracts

Samples: Fund Administration and Accounting Agreement (Rydex Etf Trust), Fund Administration and Accounting Agreement (Rydex Etf Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's Board and the provisions and terms and conditions of this ~~Agreement~~Agreement and of Schedule I, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each Series of the Fund and shall value the securities held by the Fund (the "~~Securities~~Services") at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's Board and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset value). (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY shall not provide any services relating to the management, investment advisory or sub-advisory functions of any Fund, distribution of ~~shares~~ Interests of any Fund, maintenance of any Fund's financial records ~~other than those listed on Schedule 1~~ 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), BNY 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. (each a "BNY Affiliate"). BNY 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~~ other than a ~~delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ BNY Affiliate utilized hereunder so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent. ~~With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc.,~~ BNY shall be ~~deemed~~ liable for the acts or omissions to ~~have~~ act of a BNY Affiliate to the same extent it would be liable under the terms hereof had it committed ~~any~~ the act or omission ~~of such delegee~~to act. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons and is reasonably believed by BNY to be necessary or appropriate~~ persons, in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY 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 BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. BNY 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 BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY shall not be required to include as Fund liabilities and expenses, nor as a reduction of net asset value, any accrual for any ~~federal~~Federal, state, or foreign income taxes unless the Fund shall have specified to BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular securities pricing or similar service, but shall be required and obligated to maintain a subscription or access to at least one~~ securities pricing or similar service. (h) To the extent the valuation of securities or computation of a 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such securities and each net asset value, or subject to the prior approval of BNY, instruct BNY in writing to value securities and compute 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 BNY, instruct BNY in writing to compute the value of the securities or a net asset value in a manner other than as specified in 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 net asset value. (i) BNY may apply to an officer of any Fund for written instructions with respect to any matter arising in connection with BNY's performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ij) BNY 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. (k) BNY shall, as agent for each Fund, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I hereto and made a part hereof, as such Schedule I may be amended from time to time. ~~BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions~~Such books, ~~procedures, or requests provided by the Fund. The appropriate Fund~~ accounts and other documents shall be ~~liable~~ made available upon reasonable request for inspection by officers, employees and auditors of the ~~fees and expenses of its counsel and for the reasonable fees and expense of~~ Fund during BNY's ~~own counsel~~normal business hours, shall be preserved for period of five (5) years, and shall not ~~to exceed in any one instance $10,000~~ be destroyed without the prior consent of the ~~appropriate fund~~Funds. (jl) ~~Notwithstanding any other provision contained~~ All records maintained and preserved by BNY in hard copy pursuant to this Agreement ~~or Schedule I attached hereto~~shall be and remain the property of such Fund and shall be surrendered to such Fund promptly upon request in the form in which such records have been maintained and preserved. Upon reasonable request of a Fund and payment of the fee specified by BNY, BNY shall ~~have no duty~~ provide in hard copy or ~~obligation with respect to~~on micro-film, ~~including, without limitation~~whichever [AIS] shall elect, any ~~duty or obligation to determine~~records included in any such delivery which are maintained by BNY on a computer disc, or ~~advise~~ are similarly maintained, and such Fund shall reimburse BNY for its expenses of providing such hard copy 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 its 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 theretomicro-film. (km) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and Schedule I attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1n) BNY, 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 by a 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'~~ a Fund's 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 a Fund. In the event BNY'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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1l) even though BNY 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. (mo) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (np) BNY ~~shall maintain such back-up system(s)~~agrees to treat, and ~~disaster recovery plan(s)~~to instruct any delegee or agent to treat, as ~~are~~ confidential information all accounting and customer information and other business records of the Funds disclosed to BNY in connection with its provision of services pursuant to the terms of the Agreement ("Confidential Information") and shall not disclose nor authorize disclosure of Confidential Information by BNY or any delegee to any other person, except either BNY or any delegee may make disclosure to its respective regulators, examiners, internal and external accounts, auditors, and counsel, or to any other person when required by a court order or legal process, or whenever advised by its ~~regulators~~ counsel that it could be liable for a failure to make such disclosure. BNY shall instruct employees, and ~~all laws applicable~~ instruct any delegee to ~~it.~~ instruct its employees, who may be accorded access to such information of such obligations of confidentiality and shall not use the Confidential Information for any purpose other than in fulfillment of BNY's or such delegees obligations under this Agreement. (q) Confidential Information shall not include any information that (i) is or becomes public knowledge through no act or omission of the receiving person, (ii) is publicly disclosed by its proprietor, and (iii) is otherwise lawfully obtained from third parties after reasonable inquiry regarding their authority to possess and disclose same, which is not otherwise bound by a contractual or fiduciary obligation. (r) BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 2 contracts

Samples: Services Agreement (Ivy Long/ Short Hedge Fund LLC), Services Agreement (Ivy Multi Manager Hedge Fund LLC)

Duties and Obligations of BNY. (a) Subject to the direction and control of each ~~Fund's~~ Trust’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund (i) the administrative services set forth on Schedules I and ~~each Series specified on Exhibit A~~ III attached hereto and (ii) the valuation and computation services ~~described in~~ listed on Schedule ~~I, as such schedule may be amended from time to time~~II attached hereto. ~~Subject to the provisions of this Agreement~~In addition, BNY shall ~~compute the net asset value per share of each class of shares ("Class") of each Series of the~~ perform such additional services for any Fund ~~and shall value the securities held~~ that are mutually agreed to by the Fund (the "Securities") at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's Board and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' in a manner which the Fund then represents in writing to be consistent with all applicable laws and regulations. The Fund may also parties from time to time ~~instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. By giving such instruction, the~~ for which each Fund shall pay such fees as may 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~~mutually agreed upon. The ~~Fund~~ provision of such additional services shall ~~have sole responsibility for determining~~ be subject to the ~~method~~ terms and conditions of ~~valuation of Securities~~ this Agreement and shall be reflected on the ~~method of computing each Series' and Class' net asset value. (b)~~ revised schedules to this Agreement. In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (b) BNY shall maintain such compliance policies, procedures and controls as reasonably designed to prevent violations of federal securities laws and shall provide summaries of such compliance policies, procedures and controls as shall reasonably be requested by the Funds’ Chief Compliance Officer (“CCO”), including copies of BNY’s privacy policy and rules of conduct, and shall cooperate with the CCO with respect to the CCO’s oversight of the Funds’ compliance program pursuant to Rule 38a-1 of the 1940 Act. In addition, BNY shall provide such sub-certifications as mutually agreed between BNY and the Funds in connection with any certification as to its knowledge concerning information, controls and procedures related to the Funds’ financial reports and compliance with the Xxxxxxxx-Xxxxx Act of 2002 or any of the rules or regulations promulgated thereunder. (c) The parties shall establish a service level agreement which will be applicable to this Agreement to be mutually agreed to by BNY and the Fund. (d) BNY 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 ’s financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the Funds' ’ respective counsel or independent auditors. (de) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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.~~ Mellon Corporation. BNY shall ~~not be~~ remain 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 ~~other than a delegee or agent which is a subsidiary or~~ to the ~~Bank of New York Company, Inc so long~~ same extent as BNY ~~acts in good faith and without negligence or wilful misconduct in the selection of~~ would have been liable if it performed such ~~delegee or agent. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~services itself. (ef) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the reasonable opinion of BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with~~ Provided that it satisfies its ~~duties hereunder~~duty of care under this Agreement, BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by each Fund when acting in good faith reliance upon such information, documents or advice relating to such Fund. All reasonable fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by BNY which BNY in its reasonable judgment deems reliable, BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information; provided that BNY takes all reasonable steps to notify third party service providers the extent to which BNY’s service depends on such service providers. (fg) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (gh) Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of the Fund and shall value the securities held by the Fund at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund. BNY shall provide a report of such net asset value to the Fund at the respective times set forth in Schedule II, as amended from time to time. To the extent valuation of securities or computation of a 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such securities and the Fund’s net asset value, or subject to the prior approval of BNY, instruct BNY in writing to value securities and compute 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 BNY, instruct BNY in writing to compute the value of the securities or net asset value in a manner other than as specified in this paragraph. 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 net asset value. (i) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY in its reasonable 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Fund. (hj) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ik) BNY may consult with counsel to the appropriate Fund or its own counsel, at its 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.~~ counsel provided that BNY shall ~~provide prompt notification to the appropriate Fund~~ act solely in ~~the event that it acts upon advice or opinion~~ a manner consistent with its duty of ~~counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees~~ care and ~~expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund~~obligations as set forth herein. (jl) Notwithstanding any other provision contained in this Agreement or ~~Schedule I~~ Schedules I, II or III attached hereto, BNY 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 its 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. (km) ~~BNY~~ No party hereto shall have no any duties or responsibilities for performance under this Agreement whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule I~~ the Schedules attached ~~hereto, and no covenant~~ hereto or ~~obligation shall be implied against BNY~~ are otherwise agreed to by the parties in ~~connection with this Agreement~~writing. (1n) BNY, in performing the services required of it under the terms of this Agreement, shall be entitled to reasonably rely fully on the accuracy and validity of any and all instructions, explanations, information, specifications and documentation furnished to it by a Fund ~~and~~ and, provided that such reliance is reasonable, shall have no further 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'~~ Fund 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 a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this subsection (1) even though BNY 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 issuersinformation. (mo) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such ~~interest~~ interest, and report such accruals and past due items, if applicable, until otherwise instructed by such Fund. (np) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services ~~provided~~ where BNY ~~is maintaining such back-up system(s)~~ has exercised reasonable care, including the establishment and ~~disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use~~ maintenance of a commercially reasonable ~~best efforts to resume performance as soon as practicable under the circumstances~~business continuity plan. Nor shall BNY 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 BNY or under the control of BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall ~~provide~~ promptly inform the Fund of any delays and errors resulting from events beyond its control as described in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintainedthis subsection. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 2 contracts

Samples: Fund Administration and Accounting Agreement (Goldman Sachs Variable Insurance Trust), Fund Administration and Accounting Agreement (Goldman Sachs Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each ~~Fund's Board~~ Fund and the provisions of this Agreement, BNY shall provide ~~daily~~ to ~~each Fund and each Series specified on Exhibit A attached hereto the services described in Schedule I, as~~ such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each Series of the Fund and shall value the securities held by the Fund (i) the ~~"Securities"~~administrative services set forth on Schedule I attached hereto, and (ii) at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY shall not provide ~~any~~ services relating to the management, investment advisory or sub-advisory functions of any Fund, distribution of ~~shares~~ Shares of any Fund, ~~maintenance of any Fund's financial records other than those listed on Schedule 1~~ or other services normally performed by the ~~Funds' respective~~ Fund’s counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY may delegate any of its duties and obligations hereunder to such Fund to any delegee or agent whenever and on such terms and conditions as it deems necessary or appropriate. Notwithstanding the foregoing, no ~~Fund~~ Fund’s consent shall be required for any such delegation to any other subsidiary of The Bank of New York Company, Inc. (hereinafter a “BNY Affiliate”) notwithstanding the domicile of such BNY Affiliate. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or ~~wilful~~ willful misconduct in the selection and retention of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company~~, ~~Inc.,~~ provided that BNY shall be ~~deemed~~ liable for the acts or omissions of any BNY Affiliate to ~~have~~ the same extent it would be liable under the terms hereof had it committed ~~any~~ such act or omission of and not delegated the same, and BNY shall notify each affected Fund upon any such ~~delegee~~delegation to a BNY Affiliate. (e) BNY shall cooperate with the Fund’s officers, managers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to provide such persons, upon request, with such information, documents and advice relating to a Fund as is within the possession or knowledge of BNY in order to enable such persons to perform their duties to the Fund. Each Fund shall cause its officers, managers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to ~~such~~ that Fund as is within the possession or knowledge of such persons ~~and is reasonably believed by BNY to be necessary or appropriate~~ in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled reasonably to rely, and shall be held harmless by each Fund when acting in such reasonable reliance, upon the ~~instructions~~Instructions, Oral Instructions, delivered Certificates, advice or any documents relating to ~~such~~ a Fund provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. BNY shall not be liable for any loss, damage or expense resulting from or arising out of the failure of ~~the~~ a Fund to cause any information, documents or advice to be provided to BNY as provided herein, provided BNY acts without negligence or willful misconduct. All fees or costs charged by such persons shall be borne by the ~~appropriate~~ relevant Fund. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of or BNY Affiliate or any officer or employee thereof from acting for or with any third ~~parties,~~ parties and providing services similar or identical to some or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all ~~instructions~~Instructions, Oral Instructions, Certificates, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of ~~Securities~~ securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of ~~Securities~~ securities and instruct BNY to use such information in its calculations hereunder. No Fund shall have the right to specify to BNY ~~shall at no time be required or obligated to~~ that it commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Fund. (h) BNY may apply to an officer of ~~any~~ a Fund for ~~written instructions~~ a Certificate (which Certificate shall not be unreasonably withheld) with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ taken or ~~omitted to be~~ not taken by it in ~~good faith in~~ accordance with such ~~instructions~~Certificate (except for actions by BNY implemented with negligence or willfull misconduct). Such application for ~~instructions may, at the option of BNY,~~ a Certificate shall set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be ~~taken~~taken (which date shall allow an amount of time for the Fund’s consideration of the application that is reasonable under the circumstances), and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received ~~written instructions~~ a Certificate in response to such application specifying the action to be taken or omitted. (i) At any time BNY may ~~consult with~~ seek the advice of outside counsel to ~~the appropriate~~ a Fund ~~or its own counsel, and~~ (which advice shall not be ~~fully protected~~ unreasonably withheld) with respect to ~~anything done~~ any matter arising in connection with the services to be performed by BNY under this Agreement, and BNY and its agents or subcontractors shall not be liable for any action taken or omitted by it in ~~good faith~~ reliance upon such advice (except for actions or omissions by BNY implemented with negligence or willful misconduct). Such application for advice shall set forth in writing any action proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken (which date shall allow an amount of time for counsel’s consideration of the application that is reasonable under the circumstances), and BNY shall not be liable for any action taken or omitted to be taken in accordance with the advice or opinion of such counsel. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed a proposal included in any ~~one instance $10,000 without~~ such application on or after the date specified therein unless, prior ~~consent of~~ to taking or omitting to take any such action, BNY has received advice in response to such application specifying the ~~appropriate fund~~action to be taken or omitted. (j) Notwithstanding any other provision contained in this ~~Agreement~~ Agreement, but to the extent expressly otherwise provided in Schedules I or ~~Schedule I~~ II attached hereto, BNY shall have no duty or obligation to with respect to, including, without limitation, any duty or obligation to determine, or advise or notify ~~any~~ a Fund of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, a such Fund, (ii) the taxable nature or effect on a such Fund or its ~~shareholders~~ members 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~~ other amount paid, payable or deemed paid, by a such Fund to its ~~shareholders~~members; or (iv) the effect under any federal, state, foreign, or ~~foreign~~ other applicable income tax laws of a such Fund making or not making any distribution or ~~dividend~~ other payment, or any election with respect thereto. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and Schedule I attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1) BNY, in performing the services required of it under the terms of this Agreement, shall be entitled reasonably to rely ~~fully~~ on the accuracy and validity of any and all ~~instructions~~Instructions, Oral Instructions, delivered Certificates, explanations, information, specifications and documentation furnished to it by a Fund and shall have no duty or obligation to review the accuracy, validity or propriety of such ~~instructions~~Instructions, Oral Instruction, delivered Certificates, 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'~~ a Fund’s liabilities and expenses; the amounts receivable and the amounts payable on the sale or purchase of ~~Securities~~securities; and amounts receivable or amounts payable for the sale or redemption of Fund ~~shares~~ Shares effected by or on behalf of a Fund. In the event BNY's ’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 BNY or from a broker-dealer selected by BNY, which service or broker-dealer BNY in its reasonable judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ sub-section (1k) even though BNY 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. (ml) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such~~ the Fund. (nm) Subject to the provisions of this sub-section (l), BNY shall ~~maintain~~ compute the net asset value per unit of each Fund and shall value the securities held by such ~~back-up system(s),~~ Fund at such times and ~~disaster recovery plan(s), as are required by its regulators~~ dates and ~~all laws applicable to it. BNY shall not be responsible for delays or errors which occur by reason of circumstances beyond its control~~ in the ~~performance~~ manner specified in the then currently effective Prospectus of ~~its duties under this Agreement~~such Fund, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, ~~labor difficulties within~~ those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely for each Fund. To the extent that the Fund becomes aware (or ~~without~~ should reasonably been aware) that valuation of securities or computation of a Fund’s net asset value as specified in the Fund’s then currently effective Prospectus is at any time inconsistent with any applicable laws or regulations, such Fund shall immediately so notify BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such securities and net asset value, or subject to the prior approval of BNY, ~~mechanical breakdowns~~instruct BNY in writing to value securities and compute net asset value in a manner which such Fund then represents in writing to be consistent with all applicable laws and regulations. Such Fund may also from time to time, ~~flood~~ subject to the prior approval of BNY, instruct BNY in writing to compute the value of the securities or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) net asset value in a manner other than as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. Nor shall BNY be responsible for delays or failures to supply the information or services specified in this ~~Agreement where~~ sub-section (l). By giving such ~~delays~~ instruction, such Fund shall be deemed to have represented that such instruction is consistent with all applicable laws and regulations and its then currently effective Prospectus. Each Fund shall have sole responsibility for determining the method of valuation of securities and the method of computing net asset value. (n) In providing the services hereunder BNY is authorized to utilize any legal, tax or ~~failures are caused~~ other regulatory, compliance, or monitoring services, in each case not a BNY Affiliate, reasonably believed by ~~the failure~~ BNY to be reliable to provide information. Each Fund agrees that BNY shall not be liable for any loss, damage or expense incurred as a result of errors or omissions of any ~~person(s) other than~~ vendor utilized by BNY; provided, however, that the activities of any vendor to whom BNY ~~to supply~~ has delegated any ~~instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance~~ of its duties ~~under this Agreement~~or obligations hereunder shall have been selected and retained by BNY without negligence or willful misconduct. (o) BNY ~~shall,~~ shall have no duties or responsibilities whatsoever except such duties and responsibilities as ~~agent for the Funds, maintain~~ are specifically set forth in this Agreement and ~~keep current the books, accounts and other documents, if any, listed in Schedule~~ Schedules I and ~~preserve any such books~~II attached hereto, ~~accounts~~ and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents no covenant or obligation shall be ~~made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by~~ implied against BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with ~~the performance of BNY's duties under~~ this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do soAgreement. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 2 contracts

Samples: Services Agreement (Teucrium Commodity Trust), Services Agreement (Teucrium Commodity Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's ’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto and (ii) the financial administration, fund accounting, valuation and computation services ~~described in~~ listed on Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's Board and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valueII attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial records (other than ~~those listed on Schedule 1~~ specified in Schedules I and II hereto) or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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. BNY 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 approved delegee or agent utilized hereunder ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or ~~wilful~~ willful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the reasonable opinion of BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by each Fund when acting in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the appropriate Fund. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNY 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 and~~ expenses. [BNY ~~shall comply with any such instructions~~reinserted, ~~explanations, information, specifications, and documentation.~~ what is the objection or proposed alternative? BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. .] Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY in its reasonable 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Fund. (h) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY,~~ shall set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions from an authorized person in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the appropriate ~~Fund~~ Fund, at that Fund’s expense, or its own counsel, at its 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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 by a 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 a Fund. In the event BNY's ’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 BNY which BNY in its reasonable judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this subsection (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) ~~BNY shall maintain such back-up system(s~~Subject to BNY’s representation under Section 2(b)(iv), ~~and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY shall not be responsible for delays or errors which occur by reason of circumstances beyond its reasonable control in the performance of its duties under this Agreement, including, without limitation, labor difficulties within or without BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY or BNY affiliate to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 2 contracts

Samples: Fund Administration and Accounting Agreement (MTB Group of Funds), Fund Administration and Accounting Agreement (MTB Funds)

Duties and Obligations of BNY. (a) BNY represents and warrants that it is providing the services contemplated hereunder 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. (b) Subject to the direction and control of each Fund's ’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (bc) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (cd) BNY 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 ’s financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the Funds' ’ respective counsel or independent auditors. (de) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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.~~ Mellon Corporation. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection and retention of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (ef) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with the BNY and to provide the BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of the BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ The BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to the BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. The BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by each Fund when acting in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by the BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNY which the BNY in its reasonable judgment deems reliable, the BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (fg) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (gh) Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of the Fund and shall value the securities held by the Fund at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Fund. BNY shall provide a report of such net asset value to the Fund at the time set forth in Schedule II, as amended upon mutual agreement of the parties from time to time. To the extent valuation of securities or computation of a 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such securities and the Fund’s net asset value, or subject to the prior approval of BNY, instruct BNY in writing to value securities and compute 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 BNY, instruct BNY in writing to compute the value of the securities or net asset value in a manner other than as specified in this paragraph. 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 net asset value. (i) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Fund. (hj) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ik) BNY may consult with counsel to the appropriate Fund (at the Fund's expense) or its own counsel, (at BNY'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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (jl) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (km) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1n) BNY, 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 by a 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 a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1l) even though BNY 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. (mo) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (np) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) ~~services provided~~ services; provided, however that BNY ~~is maintaining such back-up system(s) and disaster recovery plan(s) as described above~~shall maintain agreements making reasonable provisions for emergency use of electronic data processing equipment, orin accordance with applicable regulatory requirements. In the event of equipment failures, ~~provided if it does not~~BNY shall, ~~that such delays and errors would have occurred even if it had maintained~~ at no additional expense to the ~~same. BNY should use commercially~~ Fund, take reasonable ~~best efforts~~ steps to ~~resume performance as soon as practicable under the circumstances~~minimize service interruptions. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (oq) ~~BNY shall~~The books and records pertaining to the Fund, ~~as agent for~~ which are in the ~~Funds~~possession or under the control of BNY, ~~maintain and keep current~~ shall be the ~~books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2~~ property of the ~~General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended~~Fund. Such ~~books, accounts~~ books and ~~other documents~~ records shall be ~~made available upon reasonable request for inspection~~ prepared and maintained as required by the 1940 Act (and the rules thereunder) and such other applicable Federal Securities Laws, rules and regulations. The Fund and its duly authorized officers, employees and ~~auditors~~ agents and the staff of the ~~Funds~~ SEC shall have access to such books and records at all times during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon the reasonable request of the ~~Funds~~Fund, ~~BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in~~ copies of any such ~~delivery which are maintained~~ books and records shall be provided by BNY ~~on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining~~ to the ~~business of~~ Fund in the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized form requested by the ~~Funds or as~~ Fund, at the Fund's expense. Any such books and records may be ~~required by law,~~ maintained in the form of electronic media and ~~shall not~~ stored on any magnetic disk or tape or similar recording method. No records will be ~~used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains~~ destroyed without the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide Fund's written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do soconsent. (r) BNY ~~hereby specifically agrees~~ shall cooperate with, the Fund's independent public accountants and shall provide account analyses, fiscal year summaries, and other audit-related schedules with respect to the Fund. BNY shall take all reasonable action in the performance of its duties under this Agreement to assure that ~~it will provide~~ any ~~sub-certifications reasonably~~ requested by or necessary information is made available to such accountants for the ~~Funds in connection with any certification~~ expression of their opinion as to the financial statements of the Fund or as may otherwise be required by the ~~Xxxxxxxx-Xxxxx Act of 2002~~ Federal Securities Laws or ~~any rules or regulations promulgated by~~ the ~~Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care~~Fund.

Appears in 2 contracts

Samples: Fund Administration and Accounting Agreement (GLG Investment Series Trust), Fund Administration and Accounting Agreement (GLG Investment Series Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's Board and the provisions of this Agreement, BNY shall provide daily to each Fund and each Series specified on Exhibit A attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's Board and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset value. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 other than those listed on Schedule 1 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), BNY 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. BNY 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 other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such persons and is reasonably believed by BNY to be necessary or appropriate in order for BNY to perform its duties hereunder. In connection with its duties hereunder, BNY 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 BNY by a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY. BNY 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 BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service. (h) BNY may apply to an officer of any Fund for written instructions with respect to any matter arising in connection with BNY's performance hereunder for such Fund, and BNY shall not be liable for any action reasonably 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 BNY, set forth in writing any action reasonably proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 (provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions) unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the appropriate Fund or its own counsel, 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I attached hereto, BNY shall have no duty or obligation 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and Schedule I attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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 by a 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 a Fund. In the event BNY'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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this subsection (1) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 2 contracts

Samples: Fund Accounting Agreement (Ing Equity Trust), Fund Accounting Agreement (Ing Get Fund)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each Fund's Board~~ OMCAP and the provisions of this Agreement, BNY shall provide ~~daily~~ to ~~each Fund and each Series specified~~ OMCAP (i) the sub-administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and ~~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 BNY in writing~~ computation and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valueaccounting services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial records other than ~~those listed on Schedule 1~~ as specified in this Agreement and pursuant to Schedules I and II attached hereto, or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of ~~a Fund's~~ OMCAP’s prior written ~~consent (~~consent, which ~~shall not be unreasonably withheld)~~it may grant in its sole discretion, BNY 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~~ OMCAP’s consent shall not be required for any such delegation to any other subsidiary of The Bank of New York ~~Company, Inc.~~ Company Mellon Corporation and BNY shall be liable for the acts and omissions of any such subsidiary as if such acts and omissions were its own. BNY shall not be liable to ~~any Fund~~ OMCAP for any loss or damage arising out of, or in connection with, the actions or omissions to act of any unaffiliated delegee or agent utilized ~~hereunder other than a delegee or agent which is a subsidiary or the Bank of New York Company~~hereunder, ~~Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) ~~Each Fund~~ OMCAP shall cause ~~its~~ its, and each Fund’s, officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to ~~such~~ a Fund as is within the possession or knowledge of such ~~persons~~ persons, and which BNY reasonably believes is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. BNY shall not be liable for any loss, damage or expense resulting from or arising out of the failure of ~~the Fund~~ OMCAP to cause any information, documents or advice to be provided to BNY as provided ~~herein~~herein and shall be held harmless by OMCAP when carrying out its duties under this Agreement in accordance with its standard of care in reliance upon such information, documents or advice relating to a Fund. All fees or costs charged by such persons shall be borne by OMCAP. In the ~~appropriate Fund~~event that any services performed by BNY hereunder rely, in whole or in part, upon information obtained from an unaffiliated third party service utilized or subscribed to by BNY which BNY in its reasonable judgment deems reliable, BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. For the avoidance of doubt, in the event that any services performed by BNY hereunder rely, in whole or in part upon information obtained from an affiliated service provider, BNY shall be liable for the acts and omissions of any such affiliated service provider as if such acts and omissions were its own. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each Fund~~ OMCAP shall ~~furnish~~ furnish, and BNY ~~with~~ shall comply with, any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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~~ OMCAP shall have specified to BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. ~~Each Fund~~ OMCAP shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies ~~such Fund~~ OMCAP that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY in its reasonable judgment deems reliable at the time such information is required for calculations hereunder. At any time and from time to time, ~~the Fund~~ OMCAP also may furnish BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. In no event shall BNY ~~shall at no time~~ be required ~~or obligated~~ to ~~commence or maintain any utilization of~~determine, or ~~subscriptions~~ have any obligations with respect to, whether a market price represents any ~~particular securities pricing~~ fair or ~~similar service~~true value, ~~but~~ nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain~~ solely for a ~~subscription or access to at least one securities pricing or similar service~~Fund. (h) BNY may apply to an officer of ~~any Fund~~ OMCAP or other authorized person as identified on Exhibit B hereto for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for ~~such~~ a Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY,~~ shall set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 (provided that ~~BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions) unless, prior to taking or omitting to take any such action,~~ BNY has received written instructions ~~in response to~~ from such ~~application specifying~~ officer or authorized person authorizing the proposed action ~~to be taken~~ or ~~omitted~~omission. (i) BNY may consult with counsel to ~~the appropriate Fund~~ OMCAP or its own ~~counsel,~~ counsel and shall be fully protected with respect to anything done or omitted by it in good faith and without willful misconduct in accordance with the advice or opinion of such counsel. , so long as BNY ~~shall provide prompt~~ provides written notification to OMCAP reasonably in advance of acting on the ~~appropriate Fund in the event that it acts upon~~ advice or opinion of counsel ~~that~~ when such advice or opinion is inconsistent with ~~instructions, procedures,~~ the terms of this Agreement or ~~requests~~ other instructions or procedures provided by ~~the Fund~~OMCAP. ~~The appropriate Fund~~ OMCAP shall be liable for the fees and expenses of its counsel. It is expressly understood and acknowledged that counsel to the Funds or to OMCAP shall be under no obligation to provide advice or an opinion to BNY with respect to any matter. BNY may, at its own cost and ~~for~~ expense, consult with its own counsel in connection with the ~~reasonable fees and expense of BNY's own counsel, not~~ services to ~~exceed in any one instance $10,000 without the prior consent of the appropriate fund~~be performed under this Agreement. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY shall have no duty or obligation to with respect toto providing OMCAP with opinions or advice regarding the taxable nature of any corporate or Fund event, including, without limitation, any duty or obligation to determine, or advise or notify ~~any Fund~~ OMCAP of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund, or (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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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 by ~~a Fund~~ OMCAP 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 a Fund. In the event BNY's ’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 BNY which BNY in its reasonable judgment deems reliable, BNY 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 except that~~ information, so long as BNY ~~shall apply~~ is performing its normal back-testing and/or tolerance tests. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this subsection (1) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such Fund~~OMCAP. (n) BNY shall continuously maintain such back-up ~~system(s),~~ systems and disaster recovery ~~plan(s),~~ plans as are required by ~~its regulators~~ all applicable laws and ~~all laws applicable to it~~regulations. Provided BNY maintains such required back-up systems and disaster recovery plans, BNY 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 BNY~~, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services ~~provided~~ (but not including labor problems or work stoppages at BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesor any of its affiliates). Nor shall BNY 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 BNY or a designee or agent that is a subsidiary of The Bank of New York Mellon Corporation, to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) Pursuant to its obligations hereunder, BNY ~~shall, as agent for the Funds,~~ shall maintain and keep current the books, records, accounts and other ~~documents, if any,~~ documents listed in on Schedule I II and preserve any such books, records, accounts and other documents in accordance ~~with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended~~OMCAP’s directions. Such books, records, accounts and other documents shall be made available ~~upon reasonable request for inspection by officers~~to the Funds, ~~employees~~ OMCAP, its respective officers and employees, and the Funds’ auditors ~~of the Funds~~ during BNY's ’s normal business hours. (p) All ~~records maintained~~ books, records, accounts and other documents preserved by BNY ~~pursuant to this Agreement which the Funds are required to maintain and preserve~~ in accordance with ~~the above-mentioned Rules 31a-l and 31a-2~~ Section 4(o) of this Agreement shall be and shall remain the property of ~~the Funds~~ OMCAP and shall be surrendered to ~~the Funds or provided to their regulators~~ OMCAP promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall OMCAP’s request~~, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained~~. (q) ~~All~~ BNY shall treat as confidential and hold in the strictest confidence all books, records, ~~information~~ accounts and ~~data~~ other documents belonging to OMCAP or pertaining to the business of the Funds, ~~or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential~~ and shall not ~~be disclosed to any~~ disclose such books, records, accounts and other ~~person,~~ documents except as specifically authorized by ~~the Funds~~ OMCAP or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 2 contracts

Samples: Fund Sub Administration and Accounting Agreement (Old Mutual Insurance Series Fund), Fund Sub Administration and Accounting Agreement (Old Mutual Advisor Funds Ii)

Appears in 2 contracts

Samples: Fund Accounting Agreement (Voya Credit Income Fund), Fund Accounting Agreement (Voya Enhanced Securitized Income Fund)

Duties and Obligations of BNY. (a) Subject to the oversight and direction ~~and control~~ of ~~each Fund's Board~~ the Board, or its agents, and the provisions of this Agreement, BNY shall provide ~~daily~~ to ~~each~~ the Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto and (ii) the valuation and computation services ~~described in~~ listed on Schedule ~~I, as such schedule may be amended from time to time~~II attached hereto. ~~Subject to the provisions of this Agreement~~In connection therewith, BNY shall ~~compute the net asset value per share of each class of shares ("Class") of each Series of~~ provide 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~~ a copy of the Fund. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's Board and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' in a manner which the Fund then represents in writing to be consistent its Chief Compliance Officer Reference guide with all ~~applicable laws and regulations. The Fund may also from time to time instruct BNY in writing to compute~~ relevant attachments, updating the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuesame upon material changes being made. (b) In performing hereunder, BNY shall provide, at its expense, office space, furnishings, facilities, equipment and ~~personnel~~personnel required by it to perform the services described herein on the terms and for the compensation herein provided. (c) BNY shall, as promptly as practicable under the circumstances, send to the Fund such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. (d) BNY shall not provide any services relating to the management, investment advisory or sub-advisory functions of ~~any~~ the Fund, distribution of shares of ~~any~~ the Fund, maintenance of any Fund's ’s financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the ~~Funds' respective~~ Fund’s counsel or independent auditors. (de) Upon receipt of a the Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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. BNY shall not be liable to ~~any~~ 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 ~~other than a delegee or agent which~~ that is not a subsidiary ~~or the~~ of The Bank of New York Company, ~~Inc~~ Inc. so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (ef) ~~Each~~ The Fund shall use its best efforts to cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to ~~such~~ the Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to BNY by ~~a Fund's officers~~any of the aforementioned persons, ~~advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~provided that BNY acts in good faith. BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by the Fund when acting in reliance upon such information, documents or advice relating to the Fund, provided that such loss, damage or expense does not otherwise result from or arise out of BNY’s breach of this Agreement. All fees or costs charged by such persons shall be borne by the ~~appropriate~~ Fund. In the event that any services performed by BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by BNY which BNY in its reasonable judgment deems reliable, BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information, provided that BNY acts in good faith. (fg) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (gh) ~~Each~~ The Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. ~~Each~~ The Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies ~~such~~ the Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Fund. (hi) BNY may apply to an officer or duly authorized agent of ~~any~~ the Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for ~~such~~ the Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ij) BNY may consult with counsel to the ~~appropriate~~ Fund or its own counsel, at the Fund’s expense, and ~~shall be fully protected with respect to anything done or omitted by it~~ may rely in good faith ~~in accordance with~~ on the advice or opinion of such counsel. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (jk) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY shall have no duty or obligation to with respect to, including, without limitation, any duty or obligation to determine, or advise or notify ~~any~~ the Fund of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, a the Fund, (ii) the taxable nature or effect on a 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 a the Fund to its shareholders; or (iv) the effect under any federal, state, or foreign income tax laws of a the Fund making or not making any distribution or dividend payment, or any election with respect thereto. (kl) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1m) BNY, in performing the services required of it under the terms of this Agreement, shall be entitled to rely ~~fully~~ in good faith on the accuracy and validity of any and all instructions, explanations, information, specifications and documentation believed by it in good faith to be furnished to it by a 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'~~ the Fund’s 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 a the Fund. In the event BNY's ’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 BNY which BNY in good faith and in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a the Fund or any third party described in this ~~subsection~~ paragraph (1l) even though BNY 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. (mn) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a the Fund is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such~~ the Fund. (no) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns,~~ flood or catastrophe, acts of God, failures of transportation, or interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. Nor shall BNY 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 BNY~~ the Fund or its agents to supply BNY any instructions, explanations, information, specifications or documentation deemed necessary in good faith by BNY in the performance of its duties under this Agreement. (op) BNY shall, directly or through third parties, maintain and preserve for the periods prescribed, such records relating to the services to be performed by BNY under this Agreement as are required pursuant to the 1940 Act and the Securities Exchange Act of 1934, as amended. All such records shall at all times remain the respective properties of the Fund, shall be readily accessible during normal business hours to the Fund, and shall be promptly surrendered upon the termination of this Agreement or otherwise on written request. Records shall be surrendered in usable machine readable format. (q) BNY shall, as ~~agent for~~ promptly as practicable provide the ~~Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance~~ Fund with the ~~applicable provisions~~ most current Statement of ~~Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended~~Auditing Standards No. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.70

Appears in 2 contracts

Samples: Fund Administration and Accounting Agreement (Thirty Eight Hundred Fund LLC), Fund Administration and Accounting Agreement (Thirty Eight Hundred Fund LLC)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund and each Series specified on Exhibit A attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule I attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ~~other than those listed on Schedule 1~~ 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), BNY 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. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons and is reasonably believed by BNY to be necessary or appropriate~~ persons, in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY 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 BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. BNY 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 BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular securities pricing or similar service, but shall be required and obligated to maintain a subscription or access to at least one~~ securities pricing or similar service. (h) BNY may apply to an officer of any Fund for written instructions with respect to any matter arising in connection with BNY's performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I attached hereto, BNY 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and Schedule I attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) ~~BNY~~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 by a 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 a Fund. In the event BNY'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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall ~~maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY 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 ~~BNY~~the Bank, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 2 contracts

Samples: Fund Accounting Agreement (Ing Variable Insurance Trust), Fund Accounting Agreement (Ing Equity Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each Fund's Board~~ the Managing Owner and the provisions of this Agreement, BNY shall provide ~~daily~~ separately to each Fund (i) the administrative services set forth on Schedule I attached hereto, and each Series specified on Exhibit A attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial ~~records~~ records, other than those listed ~~on Schedule 1~~ in Schedules I and II attached hereto, or other services normally performed by the ~~Funds'~~ Funds respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY may delegate any of its duties and obligations hereunder to such Fund to any delegee or agent whenever and on such terms and conditions as it deems necessary or appropriate. Notwithstanding the foregoing, no ~~Fund~~ Fund’s consent shall be required for any such delegation to any ~~other subsidiary~~ BNY Affiliate notwithstanding the domicile of ~~The Bank of New York Company~~such BNY Affiliate, ~~Inc.~~ and BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or ~~wilful~~ willful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company~~, ~~Inc.,~~ provided that BNY shall be ~~deemed~~ liable for the acts or omissions of any BNY Affiliate to ~~have~~ the same extent it would be liable under the terms hereof had it committed ~~any~~ such act or omission of and not delegated the same, and BNY shall notify each affected Fund upon any such ~~delegee~~delegation to a BNY Affiliate. (e) Each Fund shall cause its officers, managers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to ~~such~~ that Fund as is within the possession or knowledge of such persons ~~and is reasonably believed by BNY to be necessary or appropriate~~ in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled reasonably to rely, and shall be held harmless by each Fund when acting in reliance, upon the instructions, advice or any documents relating to ~~such~~ a Fund provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator~~ any of the aforementioned persons (~~if any) and transfer agent and reasonably believed to be accurate by BNY~~“Proper Instructions”). BNY shall not be liable for any loss, damage or expense resulting from or arising out of the failure of ~~the~~ a Fund to cause any information, documents or advice to be provided to BNY as provided herein, provided BNY acts without negligence or willful misconduct. All fees or costs charged by such persons shall be borne by the ~~appropriate~~ relevant Fund. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of or BNY Affiliate or any officer or employee thereof from acting for or with any third ~~parties,~~ parties and providing services similar or identical to some or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY by Proper Instruction with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY by Proper Instruction with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Fund. (h) BNY may apply ~~to an officer of any Fund~~ for ~~written instructions~~ Proper Instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ taken or ~~omitted to be~~ not taken by it in good faith in accordance with such ~~instructions~~Proper Instructions. Such application for ~~instructions~~ Proper Instructions may, at the option of BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received ~~written instructions~~ Proper Instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to ~~the appropriate~~ a 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 after consultation with the Managing Owner in accordance with the advice or opinion of such counsel. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this ~~Agreement~~ Agreement, but to the extent expressly otherwise provided in Schedules I or ~~Schedule I~~ II attached hereto, BNY shall have no duty or obligation to with respect to, including, without limitation, any duty or obligation to determine, or advise or notify ~~any~~ a Fund of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, a such Fund, (ii) the taxable nature or effect on a such 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~~ other amount paid, payable or deemed paid, by a such Fund to its shareholders; or (iv) the effect under any federal, state, foreign, or ~~foreign~~ other applicable income tax laws of a such Fund making or not making any distribution or ~~dividend~~ other payment, or any election with respect thereto. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and Schedule I attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1) BNY, in performing the services required of it under the terms of this Agreement, shall be entitled reasonably to rely fully on the accuracy and validity of any and all ~~instructions~~Proper Instructions, explanations, information, specifications and documentation furnished to it by a Fund and shall have no duty or obligation to review the accuracy, validity or propriety of such ~~instructions~~Proper 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'~~ a Fund’s 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 a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, or from a broker-dealer selected by BNY, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ sub-section (1k) even though BNY 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. (ml) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (nm) Subject to the provisions of this sub-section (m), BNY shall ~~maintain~~ compute the net asset value per share of each Fund and shall value the Securities held by such ~~back-up system(s),~~ Fund at such times and ~~disaster recovery plan(s), as are required by its regulators~~ dates and ~~all laws applicable to it. BNY shall not be responsible for delays or errors which occur by reason of circumstances beyond its control~~ in the ~~performance~~ manner specified in the then currently effective Prospectus of ~~its duties under this Agreement~~such Fund, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, ~~labor difficulties within~~ those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely for each Fund. To the extent valuation of Securities or ~~without~~ computation of a Fund’s net asset value as specified in the Fund’s then currently effective Prospectus is at any time inconsistent with any applicable laws or regulations, such Fund shall immediately so notify BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and net asset value, or subject to the prior approval of BNY, ~~mechanical breakdowns~~instruct BNY in writing to value Securities and compute net asset value in a manner which such Fund then represents in writing to be consistent with all applicable laws and regulations. Such Fund may also from time to time, ~~flood~~ subject to the prior approval of BNY, instruct BNY in writing to compute the value of the Securities or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) net asset value in a manner other than as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. Nor shall BNY be responsible for delays or failures to supply the information or services specified in this ~~Agreement where~~ sub-section (m). By giving such ~~delays~~ instruction, such Fund shall be deemed to have represented that such instruction is consistent with all applicable laws and regulations and its then currently effective Prospectus. Each Fund shall have sole responsibility for determining the method of valuation of Securities and the method of computing net asset value. (n) In providing the services hereunder with the prior written consent of the Fund (which consent shall not be unreasonably withheld) BNY may utilize any legal, tax or ~~failures are caused~~ other regulatory, compliance, or monitoring services, in each case not a BNY Affiliate, reasonably believed by BNY to be reliable to provide information and reasonably satisfactory to the ~~failure~~ applicable Fund. Each Fund agrees that BNY shall not be liable for any loss, damage or expense incurred as a result of errors or omissions of any ~~person(s) other than BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary~~ vendor utilized by BNY in or any permitted delegee or agent hereunder, provided that such loss, damage or expense was not a result of the ~~performance~~ gross negligence or willful misconduct of ~~its duties under this Agreement~~such vendor. (o) BNY ~~shall,~~ shall have no duties or responsibilities whatsoever except such duties and responsibilities as ~~agent for the Funds, maintain~~ are specifically set forth in this Agreement and ~~keep current the books, accounts and other documents, if any, listed in Schedule~~ Schedules I and ~~preserve any such books~~II attached hereto, ~~accounts~~ and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents no covenant or obligation shall be ~~made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by~~ implied against BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with ~~the performance of BNY's duties under~~ this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do soAgreement. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 2 contracts

Samples: Fund Administration and Accounting Agreement (Jefferies Commodity Real Return ETF), Fund Administration and Accounting Agreement (Jefferies S&P 500 VIX Short-Term Futures ETF)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each Fund's Board~~ OMFS and the provisions of this Agreement, BNY shall provide ~~daily~~ to ~~each Fund and each Series specified~~ OMFS (i) the sub-administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and ~~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 BNY in writing~~ computation and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valueaccounting services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial records other than ~~those listed on Schedule 1~~ as specified in this Agreement and pursuant to Schedules I and II attached hereto, or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of ~~a Fund's~~ OMFS’s prior written ~~consent (~~consent, which ~~shall not be unreasonably withheld)~~it may grant in its sole discretion, BNY 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~~ OMFS’s consent shall not be required for any such delegation to any other subsidiary of The Bank of New York ~~Company, Inc.~~ Company Mellon Corporation and BNY shall be liable for the acts and omissions of any such subsidiary as if such acts and omissions were its own. BNY shall not be liable to ~~any Fund~~ OMFS for any loss or damage arising out of, or in connection with, the actions or omissions to act of any unaffiliated delegee or agent utilized ~~hereunder other than a delegee or agent which is a subsidiary or the Bank of New York Company~~hereunder, ~~Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) ~~Each Fund~~ OMFS shall cause ~~its~~ its, and each Fund’s, officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to ~~such~~ a Fund as is within the possession or knowledge of such ~~persons~~ persons, and which BNY reasonably believes is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. BNY shall not be liable for any loss, damage or expense resulting from or arising out of the failure of ~~the Fund~~ OMFS to cause any information, documents or advice to be provided to BNY as provided ~~herein~~herein and shall be held harmless by OMFS when carrying out its duties under this Agreement in accordance with its standard of care in reliance upon such information, documents or advice relating to a Fund. All fees or costs charged by such persons shall be borne by OMFS. In the ~~appropriate Fund~~event that any services performed by BNY hereunder rely, in whole or in part, upon information obtained from an unaffiliated third party service utilized or subscribed to by BNY which BNY in its reasonable judgment deems reliable, BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. For the avoidance of doubt, in the event that any services performed by BNY hereunder rely, in whole or in part upon information obtained from an affiliated service provider, BNY shall be liable for the acts and omissions of any such affiliated service provider as if such acts and omissions were its own. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each Fund~~ OMFS shall ~~furnish~~ furnish, and BNY ~~with~~ shall comply with, any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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~~ OMFS shall have specified to BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. ~~Each Fund~~ OMFS shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies ~~such Fund~~ OMFS that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY in its reasonable judgment deems reliable at the time such information is required for calculations hereunder. At any time and from time to time, ~~the Fund~~ OMFS also may furnish BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. In no event shall BNY ~~shall at no time~~ be required ~~or obligated~~ to ~~commence or maintain any utilization of~~determine, or ~~subscriptions~~ have any obligations with respect to, whether a market price represents any ~~particular securities pricing~~ fair or ~~similar service~~true value, ~~but~~ nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain~~ solely for a ~~subscription or access to at least one securities pricing or similar service~~Fund. (h) BNY may apply to an officer of ~~any Fund~~ OMFS or other authorized person as identified on Exhibit B hereto for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for ~~such~~ a Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY,~~ shall set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 (provided that ~~BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions) unless, prior to taking or omitting to take any such action,~~ BNY has received written instructions ~~in response to~~ from such ~~application specifying~~ officer or authorized person authorizing the proposed action ~~to be taken~~ or ~~omitted~~omission. (i) BNY may consult with counsel to ~~the appropriate Fund~~ OMFS or its own ~~counsel,~~ counsel and shall be fully protected with respect to anything done or omitted by it in good faith and without willful misconduct in accordance with the advice or opinion of such counsel. , so long as BNY ~~shall provide prompt~~ provides written notification to OMFS reasonably in advance of acting on the ~~appropriate Fund in the event that it acts upon~~ advice or opinion of counsel ~~that~~ when such advice or opinion is inconsistent with ~~instructions, procedures,~~ the terms of this Agreement or ~~requests~~ other instructions or procedures provided by ~~the Fund~~OMFS. ~~The appropriate Fund~~ OMFS shall be liable for the fees and expenses of its counsel. It is expressly understood and acknowledged that counsel to the Funds or to OMFS shall be under no obligation to provide advice or an opinion to BNY with respect to any matter. BNY may, at its own cost and ~~for~~ expense, consult with its own counsel in connection with the ~~reasonable fees and expense of BNY's own counsel, not~~ services to ~~exceed in any one instance $10,000 without the prior consent of the appropriate fund~~be performed under this Agreement. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY shall have no duty or obligation to with respect toto providing OMFS with opinions or advice regarding the taxable nature of any corporate or Fund event, including, without limitation, any duty or obligation to determine, or advise or notify ~~any Fund~~ OMFS of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Fund, or (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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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 by ~~a Fund~~ OMFS 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 a Fund. In the event BNY's ’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 BNY which BNY in its reasonable judgment deems reliable, BNY 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 except that~~ information, so long as BNY ~~shall apply~~ is performing its normal back-testing and/or tolerance tests. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this subsection (1) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such Fund~~OMFS. (n) BNY shall continuously maintain such back-up ~~system(s),~~ systems and disaster recovery ~~plan(s),~~ plans as are required by ~~its regulators~~ all applicable laws and ~~all laws applicable to it~~regulations. Provided BNY maintains such required back-up systems and disaster recovery plans, BNY 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 BNY~~, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services ~~provided~~ (but not including labor problems or work stoppages at BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesor any of its affiliates). Nor shall BNY 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 BNY or a designee or agent that is a subsidiary of The Bank of New York Mellon Corporation, to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) Pursuant to its obligations hereunder, BNY ~~shall, as agent for the Funds,~~ shall maintain and keep current the books, records, accounts and other ~~documents, if any,~~ documents listed in on Schedule I II and preserve any such books, records, accounts and other documents in accordance ~~with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended~~OMFS’s directions. Such books, records, accounts and other documents shall be made available ~~upon reasonable request for inspection by officers~~to the Funds, ~~employees~~ OMFS, its respective officers and employees, and the Funds’ auditors ~~of the Funds~~ during BNY's ’s normal business hours. (p) All ~~records maintained~~ books, records, accounts and other documents preserved by BNY ~~pursuant to this Agreement which the Funds are required to maintain and preserve~~ in accordance with ~~the above-mentioned Rules 31a-l and 31a-2~~ Section 4(o) of this Agreement shall be and shall remain the property of ~~the Funds~~ OMFS and shall be surrendered to ~~the Funds or provided to their regulators~~ OMFS promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall OMFS’s request~~, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained~~. (q) ~~All~~ BNY shall treat as confidential and hold in the strictest confidence all books, records, ~~information~~ accounts and ~~data~~ other documents belonging to OMFS or pertaining to the business of the Funds, ~~or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential~~ and shall not ~~be disclosed to any~~ disclose such books, records, accounts and other ~~person,~~ documents except as specifically authorized by ~~the Funds~~ OMFS or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 2 contracts

Samples: Fund Sub Administration and Accounting Agreement (Old Mutual Advisor Funds), Fund Sub Administration and Accounting Agreement (Old Mutual Funds III)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each Fund~~the Trust's Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified on Exhibit A attached hereto~~ the services ~~described in~~ set forth on Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's Board and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valueI attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) In performing hereunder, BNY shall in accordance with its standard of care endeavor to act in conformity with the Trust's Charter and By-laws last delivered to BNY; the 1940 Act and the rules thereunder, including but not limited to Rules 31a-1 to 31a-3, and other applicable laws and regulations, as the same may be amended from time to time; and each Fund's Prospectus. (d) BNY 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 ~~other than those listed on Schedule 1~~ or ~~other~~ services normally performed by the Funds' respective counsel or independent auditors, except as otherwise described in this Agreement. (de) Upon receipt of ~~a Fund~~the Trust's prior written consent ~~(which shall~~ and not ~~be unreasonably withheld)~~otherwise, BNY 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~~ including BNY's liability for the foregoing, no Fund consent shall be required for any such delegation to any other subsidiary of The Bank of New York Company, Inc. BNY shall not be liable to any Fund for any loss or damage arising out of, or in connection with, the actions acts or omissions to act of any delegee or agent utilized hereunder other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of for such delegee or ~~agent. With respect to any delegee or~~ such agent ~~which is a subsidiary of The Bank of New York Company, Inc.,~~ as BNY ~~shall be deemed to have committed any act or omission of such delegee~~and the Trust agree upon in writing. (ef) ~~Each Fund~~ The Trust shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, ~~current administrator (if any)~~ administrator, and transfer agent ("service providers"), to cooperate with BNY and to provide BNY, upon request, ~~with~~ such information, documents and advice relating to ~~such Fund~~ the Funds as is within the possession or knowledge of such persons and is reasonably believed by BNY to be necessary or appropriate in order for BNY to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled to ~~rely, and shall be held harmless by each Fund when acting in reliance, upon the~~ rely on any instructions, ~~advice~~ advice, information, or ~~any~~ documents relating to ~~such Fund~~ the Funds provided to BNY by a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY. BNY 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 BNY as provided herein~~service providers described in this subsection (f). All fees or costs charged by such ~~persons~~ service providers shall be borne by the appropriate Fund. BNY shall promptly notify the Trust if any requested information, document, or advice is not promptly received in response to a request by BNY. (fg) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting as administrator for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service. (h) BNY may ~~apply to an officer of any Fund for~~ request from the Trust written instructions with respect to any matter or issue which is not routine and not generally arising in the ordinary course in connection with BNY's performance ~~hereunder for~~ hereunder. BNY is entitled to reasonably rely and act in good faith accordance with such ~~Fund,~~ written instructions given by authorized persons and ~~BNY~~ shall not be liable for any action ~~reasonably~~ taken or omitted to be taken by it in good faith in accordance with such instructions. Such ~~application~~ request for instructions may, at the option of BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY shall not be liable for any action taken or omitted to be taken in accordance with a the proposal included in any such ~~application~~ request on or after the date specified therein ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such ~~application~~ request specifying the action to be taken or omitted~~. (i)~~ . BNY may consult with counsel to the ~~appropriate Fund~~ Trust, at the Trust's expense or its own counsel, ~~and shall be fully protected~~ at BNY's expense, with respect to ~~anything done~~ any matter or ~~omitted by it in good faith in accordance with~~ issue. Following such consultation, BNY must promptly notify the ~~advice or opinion~~ Trust of the course of action that BNY intends to take if written instructions are not received within a stated additional period of time after such ~~counsel~~notice. Under these circumstances, BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall not be liable for ~~the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund~~taking such actions as if written instructions had been provided. (ji) ~~Notwithstanding any other provision contained in this Agreement or Schedule I attached hereto,~~ BNY shall ~~have no duty~~ be responsible for determining and properly reflecting, and advising or ~~obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify any Fund~~ notifying the Trust 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 ~~its~~ 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. (kj) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I ~~attached~~ or II hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1) BNY, 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 by a 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 a Fund. In the event BNY'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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this subsection (1) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 2 contracts

Samples: Fund Services Agreement (E Trade Funds), Fund Services Agreement (E Trade Funds)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's ’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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.~~ Mellon Corporation. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with the BNY and to provide the BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of the BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ The BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to the BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. The BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by each Fund when acting in reliance in good faith upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by the BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNY which the BNY in its reasonable judgment deems reliable, the BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each~~ Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of the Fund and shall value the securities held by the Fund at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Fund. BNY shall provide a report of such net value to the Fund and Authorized Participants at the respective times set forth in Schedule II, as amended from time to time. To the extent valuation of securities or computation of a 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such securities and the Fund’s net asset value, or subject to the prior approval of BNY, instruct BNY in writing to value securities and compute 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 BNY, instruct BNY in writing to compute the value of the securities or net asset value in a manner other than as specified in this paragraph. 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 net asset value. (h) The Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of ~~Securities~~ securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service~~, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~. (hi) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ij) BNY 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (jk) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (kl) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1m) BNY, 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 by a 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 a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1m) even though BNY 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. (mn) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (no) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (U.S. One Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each Fund's Board~~ FT Services and the provisions of this Agreement, BNY shall provide ~~daily~~ to ~~each Fund and each Series specified~~ the Funds (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial ~~records other than those listed on Schedule 1~~ records, except to the extent specifically set forth herein, or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of ~~a Fund's~~ FT Services’ prior written ~~consent (which shall not be unreasonably withheld)~~consent, BNY 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~~ BNY may delegate any ~~such delegation~~ of its duties and obligations hereunder to any other subsidiary of The Bank of New York ~~Company, Inc.~~ Mellon Corporation and it will use commercially reasonable efforts to provide advance written notice to FT Services of its so doing. BNY shall ~~not~~ be liable to FT Services and any Fund for any loss or damage arising out of, or in connection with, the actions or omissions to act of any affiliated delegee or agent utilized hereunder ~~other than a delegee~~ to the same extent as it would be liable hereunder if it had taken or ~~agent which is a subsidiary or the Bank of New York Company, Inc so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of~~ omitted such ~~delegee or agent~~action itself. ~~With~~ BNY’s liability with respect to any ~~delegee~~ non-affiliated delegate or agent ~~which is a subsidiary of The Bank of New York Company, Inc., BNY~~ approved by FT Services shall be ~~deemed~~ limited to ~~have committed any act~~ such instances where BNY failed to reasonably select, monitor and retain such delegate or ~~omission of such delegee~~agent. (e) ~~Each Fund~~ FT Services shall cause ~~its~~ the Trust’s officers, advisors, sponsor, distributor, legal ~~counsel~~counsel (subject to any applicable privileges), independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with BNY and to provide BNY, upon reasonable request, with such information, documents and advice relating to ~~such Fund~~ the Trust as is within the possession or knowledge of such ~~persons~~ persons, and which, in the reasonable opinion of BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. In connection with its duties hereunder, BNY 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 BNY by a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY. BNY shall not be ~~liable for~~ responsible for, under any ~~loss~~duty to inquire into, ~~damage~~ or ~~expense resulting from~~ be deemed to make any assurances with respect to the accuracy, validity or ~~arising out~~ propriety of ~~the failure of the Fund to cause~~ any information, documents or advice ~~to be~~ provided to BNY ~~as provided herein. All fees or costs charged~~ by ~~such persons~~ any of the aforementioned persons, and BNY shall be ~~borne~~ held harmless by FT Services when acting in good faith reliance upon such information, documents or advice relating to the ~~appropriate Fund~~Trust. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder; provided, however, that notwithstanding this paragraph BNY may not use FT Services’, the Funds’ or any of their affiliates’ proprietary information, know-how or methodologies in providing such services to such other third parties. (g) ~~Each~~ Subject to the provisions of this Agreement, BNY shall compute the net asset value per share (“NAV”) of a Fund and shall ~~furnish~~ value the securities held by the Fund at such times and dates and in the manner specified in the then-effective Prospectus of the Fund and in accordance with the Trust’s valuation procedures actually provided to BNY, except that, notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Trust. BNY shall provide a report of such NAV to FT Services, the Trust and Authorized Participants at the respective times set forth in Schedule II, as amended from time to time. To the extent valuation of securities or computation of a NAV as specified in the Fund’s then-effective Prospectus and valuation procedures actually provided to BNY are at any time inconsistent with FT Services’ or the Trust’s reasonable interpretation of any applicable laws or regulations, FT Services shall promptly so notify BNY in writing and thereafter BNY shall value securities and/or compute NAV or other computations consistent with the Fund’s Prospectus and valuation procedures actually provided to BNY, as they may be amended, which amendments shall constitute a representation by FT Services (which representation shall be deemed to be continuing) that the same is consistent with all applicable laws and regulations and with the Trust’s amended Prospectus or valuation procedures. FT Services may also from time to time instruct BNY in writing to compute the value of the securities or NAV in a manner other than as specified in this paragraph. By giving such instruction, FT Services shall be deemed to have represented that such instruction is consistent with all applicable laws and regulations and the then-effective Prospectus of the Fund and valuation procedures of the Trust. The Trust shall have sole authority and responsibility for determining the method of valuation of securities and the method of computing NAV. (h) FT Services shall furnish, or cause the Trust to furnish, BNY with, and BNY shall comply with, any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by ~~BNY~~ BNY, FT Services or the Trust in the performance of ~~its~~ BNY’s duties hereunder, including, without limitation, valuation procedures describing the amounts or written formula for calculating the amounts and times of accrual of Fund liabilities and ~~expenses and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY shall not be required to include as Fund liabilities and expenses, nor as a reduction of ~~net asset value~~NAV, any accrual for any federal, state, or foreign income taxes unless FT Services or the ~~Fund~~ Trust shall have specified to BNY the precise amount of the same to be included in liabilities and expenses or used to reduce ~~net asset value~~NAV; provided, however, that (i) FT Services or the Trust may specify the precise amount in the form of rules to be applied by BNY (e.g., applicable tax rates) and (ii) with respect to foreign securities, BNY will book minimum withholding taxes on interest, dividends and gains. ~~Each Fund~~ FT Services shall also furnish BNY with bid, offer, or market values of ~~Securities~~ securities if BNY notifies ~~such Fund~~ FT Services that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY ~~which~~ that BNY 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~~ FT Services also may furnish BNY with bid, offer, or market values of ~~Securities~~ securities and instruct BNY to use such information in its calculations hereunder. BNY shall ~~at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any~~ use the particular securities pricing or similar ~~service~~services as may be specified by FT Services, ~~but shall~~ or by the Trust in the Trust’s pricing procedures as they may be ~~required and obligated~~ amended from time to ~~maintain a subscription or access~~ time, provided that BNY has existing subscriptions to ~~at least one securities pricing or similar service~~facilitate the use of such services. (hi) BNY may apply to an a duly authorized officer or agent of ~~any Fund~~ FT Services for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder ~~for~~ and, subject to its carrying out such ~~Fund~~instructions in accordance with its standard of care as set forth herein, ~~and~~ BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 (provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions) unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ij) BNY may consult with its own counsel at its own expense, or with counsel to FT Services at FT Services’ expense with approval by FT Services, with respect to any matter arising in connection with the ~~appropriate Fund or~~ services to be performed by BNY under this Agreement and, subject to its ~~own counsel~~carrying out such actions in accordance with its standard of care as set forth herein, ~~and~~ shall be fully protected with respect to anything done or omitted by it in good faith and in accordance with the advice or opinion of ~~such~~ FT Services’ counsel. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (jk) ~~Notwithstanding any other provision contained~~ BNY is responsible for identifying securities and transactions whose U.S. tax treatment differs from the treatment under U.S. generally accepted accounting principles. BNY may consult with FT Services or its Authorized Persons (as defined herein) to determine the appropriate U.S. tax treatment for certain complex securities or transactions. As provided in ~~this Agreement or Schedule~~ Schedules I and II attached hereto, BNY shall ~~have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify any Fund of: (i)~~ perform various duties in support of the ~~taxable nature~~ tax position 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 its 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 theretoFunds. (kl) BNY shall have no duties or responsibilities whatsoever with respect to the services provided hereunder except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or ~~obligation~~ obligation, except for those set forth herein, shall be implied against BNY in connection with this Agreement. (1m) BNY, in performing the services required of it under the terms of this Agreement, and subject to its standard of care as set forth herein, shall be entitled to rely ~~fully~~ in good faith on the accuracy and validity of any and all instructions, explanations, information, specifications and documentation furnished to it by a 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 a FundFT Services. In the event BNY's ’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,~~ information from a pricing or similar service utilized, or subscribed to, by BNY which ~~BNY~~ BNY, in good faith and in its ~~judgment~~ reasonable judgment, deems reliable, ~~BNY~~ BNY, subject to its standard of care, relating to the input of such pricing, as set forth herein, 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 except that BNY shall apply its normal tolerance tests. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this subsection (1) even though BNY 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 issuersinformation. (mn) BNY, in performing the services required of it under the terms of this Agreement, shall notify FT Services of any accrued interest that remains unpaid on its contractual interest payment date, but shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such Fund~~FT Services or the Trust. (no) Subject to BNY’s obligation to maintain a commercially reasonable Disaster Recovery Plan and Back-Up System, neither FT Services nor BNY shall ~~maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY shall not~~ be responsible for delays or errors ~~which~~ that 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 ~~BNY~~BNY or FT Services, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, or communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the sameservices. BNY ~~should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. Nor~~ shall ~~BNY~~ not be responsible for delays or failures to supply the information or services specified in this ~~Agreement~~ Agreement, where such delays or failures are caused by the failure of any person(s) other than BNY to supply any instructions, explanations, information, specifications or documentation reasonably deemed necessary by BNY in the performance of its duties under this Agreement. Upon the occurrence of any such delay or failure, BNY shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. (op) BNY ~~shall~~agrees to as promptly as practicable under the circumstances, ~~as agent~~ notify FT Services in the event of any of the following: (i) Any of the representations and warranties of BNY in Section 3 above cease to be true and correct; or (ii) BNY is for any reason unable to perform any of its obligations under this Agreement. (q) In performing the ~~Funds~~services hereunder, ~~maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance~~ BNY shall comply with the applicable provisions of ~~Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940~~each Fund’s Prospectus, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do soincluding effective amendments thereto. (r) On a quarterly basis, BNY ~~hereby specifically agrees that it~~ will provide to FT Services and the Trust certifications in connection with Rule 38a-1 under the 1940 Act, including an attestation as to whether there have been any material changes to the policy and procedures summaries provided to the Trust, and sub-certifications ~~reasonably requested by~~ related to the ~~Funds in connection with any certification required by the Xxxxxxxx~~Sxxxxxxx-Xxxxx Act of ~~2002~~ 2002. (s) BNY will furnish to FT Services and the Trust, on a semi-annual basis, a report in accordance with Statements on Standards for Attestation Engagements No. 16 (the “SSAE Report”) as well as such other reports and information relating to BNY’s policies and procedures and its compliance with such policies and procedures and with the laws applicable to its business and its services, as the parties may mutually agree upon. (t) BNY shall maintain levels and types of insurance coverage including, without limitation, errors and omissions, fidelity bond and electronic data processing coverages, which are determined by its board of directors/trustees to be appropriate for its business. Such types and levels of coverage are consistent with the types and levels maintained in the industry by other high quality fund administrators for registered investment companies. (u) BNY shall cooperate with the Trust’s independent public accountants and shall take all reasonable actions in the performance of its obligations under this Agreement to provide such information, as may be reasonably requested by FT Services or the Trust from time to time, to such accountants for the expression of their opinion. (v) In performing the services set forth in this Agreement, BNY shall conform with the 1940 Act and all rules and regulations thereunder, with all other applicable federal, state and foreign laws and regulations, with any ~~rules or regulations promulgated~~ applicable procedures adopted by the ~~Securities~~ Trust’s board of trustees (the “Board”), and ~~Exchange Commission thereunder, provided~~ with the ~~same do not change BNY's standard~~ provisions of ~~care~~each Fund’s Prospectus.

Appears in 1 contract

Samples: Subcontract for Fund Administration and Accounting Services (Franklin ETF Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto and (ii) the valuation, accounting and computation services ~~described in~~ listed on Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's Board and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valueII attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and ~~personnel~~personnel necessary for the performance of its duties hereunder. (c) BNY shall not provide any services under this Agreement 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 ~~other than those listed~~ (except to the extent such financial records are generated by BNY in the course of the performance of its duties hereunder, in which case BNY will preserve and retain such records on ~~Schedule 1~~ behalf of the Fund in accordance with BNY's record retention policies and procedures) 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), BNY 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.~~ Inc.. Notwithstanding any such delegation, and irrespective of whether or not the consent of the Funds is required (or has been obtained) for such delegation, BNY shall be responsible for the reasonable selection of any such delegee or agent, and shall not be discharged of its duties to provide the delegated services. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by each Fund when acting in good faith and in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by BNY which BNY in good faith and in its reasonable judgment deems reliable, BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of the Fund and shall value the securities held by the Fund at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Fund. BNY shall provide a report of such net asset value to the Fund and Authorized Participants at the respective times set forth in Schedule II, as amended from time to time. To the extent valuation of securities or computation of a 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such securities and the Fund's net asset value, or subject to the prior approval of BNY, instruct BNY in writing to value securities and compute 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 BNY, instruct BNY in writing to compute the value of the securities or net asset value in a manner other than as specified in this paragraph. 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 net asset value. (h) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service~~, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~. (hi) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ij) BNY may consult with counsel to the appropriate Fund at such Fund's expense, or its own ~~counsel~~counsel at its own expense, provided that such counsel has been approved by the Fund, where notice from BNY as to its selected counsel which is not objected to in writing by the Fund within one business day shall constitute the Fund's approval, and BNY 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (jk) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (kl) With respect to the services contemplated hereunder, BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto~~, and no covenant or obligation shall be implied against BNY in connection with this Agreement~~. (1m) BNY, 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 by a 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~~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 a Fund. In the event BNY's computations hereunder rely, in whole or in part, upon information, including, without limitation, bid, offer or market values of ~~securities~~ Securities or other assets, or accruals of interest or earnings thereon, from a pricing or similar service utilized, or subscribed to, by BNY which BNY in its judgment deems reliable, and which is consistent with the pricing policies as adopted by the Board and provided to BNY, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1m) even though BNY 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. (mn) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (no) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 ~~BNY~~ BNY, its employees or or its affiliates, to supply any instructions, explanations, information, specifications or documentation deemed in good faith to be necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will ~~provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided~~ in such instances as ~~much notice~~ promptly as is ~~reasonably practicable~~ reasonable under the ~~circumstances, BNY shall have no liability for any failure to do so~~circumstances notify the Fund of such failures. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (TDAX Funds, Inc.)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's ’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto and (ii) the valuation, accounting and computation services ~~described in~~ listed on Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's Board and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valueII attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and ~~personnel~~personnel necessary for the performance of its duties hereunder. (c) BNY shall not provide any services under this Agreement relating to the management, investment advisory or sub-advisory functions of any Fund, distribution of shares of any Fund, maintenance of any Fund's ’s financial records ~~other than those listed~~ (except to the extent such financial records are generated by BNY in the course of the performance of its duties hereunder, in which case BNY will preserve and retain such records on ~~Schedule 1~~ behalf of the Fund in accordance with BNY’s record retention policies and procedures) or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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.~~ Inc.. Notwithstanding any such delegation, and irrespective of whether or not the consent of the Funds is required (or has been obtained) for such delegation, BNY shall be responsible for the reasonable selection of any such delegee or agent, and shall not be discharged of its duties to provide the delegated services. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by each Fund when acting in good faith and in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by BNY which BNY in good faith and in its reasonable judgment deems reliable, BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Fund. (h) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the appropriate Fund at such Fund’s expense, or its own ~~counsel~~counsel at its own expense, provided that such counsel has been approved by the Fund, where notice from BNY as to its selected counsel which is not objected to in writing by the Fund within one business day shall constitute the Fund’s approval, and BNY 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (k) With respect to the services contemplated hereunder, BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto~~, and no covenant or obligation shall be implied against BNY in connection with this Agreement~~. (1l) BNY, 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 by a 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~~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 a Fund. In the event BNY's ’s computations hereunder rely, in whole or in part, upon information, including, without limitation, bid, offer or market values of ~~securities~~ Securities or other assets, or accruals of interest or earnings thereon, from a pricing or similar service utilized, or subscribed to, by BNY which BNY in its judgment deems reliable, and which is consistent with the pricing policies as adopted by the Board and provided to BNY, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall ~~maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 ~~BNY~~ BNY, its employees or or its affiliates, to supply any instructions, explanations, information, specifications or documentation deemed in good faith to be necessary by BNY in the performance of its duties under this Agreement. BNY will in such instances as promptly as is reasonable under the circumstances notify the Fund of such failures. (o) BNY ~~shall~~shall keep confidential all books and records relating to the Funds and its shareholders, except when (i) disclosure is required by law, (ii) BNY is advised by counsel that it may incur liability for failure to make a disclosure, (iii) BNY is requested to divulge such information by a court, governmental agency or entity or by a self-regulatory organization registered under the Securities Exchange Act of 1934, or (iv) as ~~agent for~~ requested or authorized by Funds or the Advisor (including pursuant to this Agreement or its policies and procedures). BNY shall provide the Funds with reasonable advance notice of disclosure pursuant to items (i) – (iii) of the previous sentence, to the extent reasonably practicable and permissible by law. BNY shall promptly upon the Funds’ demand, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of turn over to the Funds ~~during BNY's normal business hours. (p) All~~ and cease to retain the files, records and documents created and maintained ~~and preserved~~ by ~~BNY~~ it pursuant to this Agreement which are no longer needed by it in the ~~Funds are required to maintain and preserve~~ performance of its services or in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Fundsrelevant law, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer discregulation, or ~~are otherwise maintained~~bank policy. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (HealthShares (TM) Inc.)

Duties and Obligations of BNY. (a) Subject to the direction and control of DB Commodity Services LLC, in its capacity as managing owner of each ~~Fund's Board~~ of the Funds, and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto and (ii) the valuation and computation services ~~described in~~ listed on Schedule III attached hereto. Without limiting the foregoing, ~~as such schedule may~~ it is agreed that all services with respect to federal, state and local income tax matters, including the preparation and filing of returns and reports, shall be ~~amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each Series~~ provided by a third party retained by or on behalf of the ~~Fund~~ Funds, initially Price Waterhouse Coopers, and ~~shall value the securities held~~ not by the Fund (the "Securities") at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's Board and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valueBank. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial ~~records~~ records, other than those listed ~~on Schedule 1~~ in Schedules I and II attached hereto, or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or ~~wilful~~ willful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons and is reasonably believed by BNY to be necessary or appropriate~~ persons, in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled to rely, and shall be held harmless by each Fund when acting in reliance, upon the ~~instructions~~information, documents and advice ~~or any documents~~ relating to such Fund provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator~~ any of the aforementioned persons or Proper Instructions (~~if any) and transfer agent and reasonably believed to be accurate by BNY~~as hereinafter defined). BNY 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 BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY by Proper Instruction with bid, offer, or market values of ~~Securities~~ assets if BNY notifies such Fund that same are not available to BNY from a ~~security~~ pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY by Proper Instruction with bid, offer, or market values of ~~Securities~~ assets and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular securities~~ pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Fund. (h) BNY may apply to an officer of any Fund for ~~written instructions~~ Proper Instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ taken or omitted to be taken by it in good faith in accordance with such ~~instructions~~Proper Instructions. Such application for ~~instructions~~ Proper Instructions may, at the option of BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received ~~written instructions~~ Proper Instructions in response to such application specifying the action to be taken or omitted. (i) BNY 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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~~ Proper Instructions furnished to it by a Fund and shall have no duty or obligation to review the accuracy, validity or propriety of such ~~instructions, explanations, information, specifications or documentation,~~ Proper Instructions including, without limitation, ~~evaluations of securities~~evaluations; 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~~assets; and amounts receivable or amounts payable for the sale or redemption of Fund shares effected by or on behalf of a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of ~~securities or~~ other assets by a Fund or any third party described in this ~~subsection~~ (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall ~~maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall ~~be made available upon reasonable request for inspection by officers, employees and auditors of~~ provide the Funds ~~during~~ with custodial and transfer agency services on BNY~~'s normal business hours~~’s standard terms for no additional consideration. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (Db Currency Index Value Master Fund)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each Fund's~~ the Trust’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund and each Series specified on Exhibit A attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each Series of the Fund and shall value the securities held by the Fund (i) the ~~"Securities"~~administrative services set forth on Schedule I attached hereto and (ii) ~~at such times~~ the valuation, computation and dates and in the manner specified in the then currently effective Prospectus of the Fund. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's Board and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valueaccounting services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY shall not provide any services relating to the management, investment advisory or sub-advisory functions of ~~any~~ the Fund, distribution of shares of ~~any~~ the Fund, maintenance of ~~any~~ the Fund's ’s financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the ~~Funds' respective~~ Trust’s counsel or independent ~~auditors~~auditor. (d) Upon receipt of ~~a Fund's~~ the Trust’s prior written consent (which shall not be unreasonably withheld), BNY 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. No such delegation of its duties and obligations hereunder shall discharge BNY from its obligations hereunder. Notwithstanding the foregoing, no ~~Fund~~ Trust consent shall be required for any such delegation to any other subsidiary of The Bank of New York Company, ~~Inc.~~ Inc.; and BNY hereunder shall be as liable for the acts or omissions of any such subsidiary as if such acts or omissions were its own. BNY shall not be liable to ~~any Fund~~ the Trust 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) ~~Each Fund~~ The Trust shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to ~~such Fund~~ the Trust as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. BNY shall not be liable for any loss, damage or expense resulting from or arising out of the failure of the ~~Fund~~ Trust to cause any information, documents or advice to be provided to BNY as provided ~~herein~~herein and shall be held harmless by the Trust when acting in reliance upon such information, documents or advice relating to the Trust. All fees or costs charged by such persons shall be borne by the ~~appropriate Fund~~Trust. In the event that any services performed by BNY hereunder related to the calculation of the intraday indicative value or NAV — rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by BNY which BNY in its reasonable judgment deems reliable, BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each Fund~~ The Trust shall furnish BNY with any and all instructions, explanations, information, specifications and documentation reasonably deemed ~~reasonably~~ necessary by BNY 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~~ Trust liabilities and ~~expenses and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY shall not be required to include as ~~Fund~~ Trust liabilities and expenses, nor as a reduction of net asset value, any accrual for any federal, state, or foreign income taxes unless the ~~Fund~~ Trust shall have specified to BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. ~~Each Fund~~ The Trust shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies ~~such Fund~~ the Trust that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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~~ Trust also may furnish BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Trust. (h) BNY may apply to an officer or duly authorized agent of ~~any Fund~~ the Trust for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for ~~such Fund~~the Trust, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be ~~taken~~taken (which date shall be reasonably selected by BNY given the particular circumstances), and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the ~~appropriate Fund~~ Trust or its own counsel, at the Trust’s expense, with respect to any matter arising in connection with the services to be performed by BNY under this Agreement, and shall promptly advise the Trust of the advice or opinion of such counsel, 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~~. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon~~ ; provided such advice or opinion ~~of counsel that~~ is ~~inconsistent~~ consistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fundgenerally accepted industry legal standards. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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~~ the Trust of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, a the Fund, (ii) the taxable nature or effect on a 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 a the Fund to its shareholders; or (iv) the effect under any federal, state, or foreign income tax laws of a the Fund making or not making any distribution or dividend payment, or any election with respect thereto. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or ~~obligation~~ obligation, except for those set forth herein, shall be implied against BNY in connection with this Agreement. (1l) BNY, 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 by ~~a Fund~~ the Trust 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'~~ the Fund’s 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 a the Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by ~~a Fund~~ the Trust or any third party described in this ~~subsection~~ (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a the Fund is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such Fund~~the Trust. (n) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation reasonably deemed necessary by BNY in the performance of its duties under this Agreement~~. (o) BNY shall, as agent for~~ . Upon the ~~Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve~~ occurrence of any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds delay or ~~provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds~~failure, BNY shall ~~provide in hard copy, computer disc, on micro-film or other format~~ use reasonable efforts to resume performance as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except soon as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances~~, BNY shall have no liability for any failure to do so~~. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (Yyy Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each~~ the Fund's ~~Board~~ Trustees and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund and each Series specified on Exhibit A attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each Series of the Fund and shall value the securities held by the Fund (i) the ~~"Securities"~~administrative services set forth on Schedule I attached hereto and (ii) at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY shall not provide any services relating to the management, investment advisory or sub-advisory functions of ~~any~~ the Fund, distribution of shares of ~~any~~ the Fund, maintenance of ~~any~~ the Fund's financial ~~records other than those listed on Schedule 1~~ records, except to the extent specifically set forth herein or other services normally performed by the Funds' respective counsel or independent auditors. (d) Upon receipt of a the Fund's prior written consent (which shall not be unreasonably withheld), BNY 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. BNY 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 other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., and BNY shall be deemed to have ~~committed~~ taken or omitted any ~~act~~ action taken or ~~omission of~~ omitted by any such ~~delegee~~subsidiary. (e) ~~Each~~ The Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such ~~information,~~ information or documents ~~and advice~~ relating to ~~such~~ the Fund as is within the possession or knowledge of such ~~persons and is reasonably believed by BNY to be necessary or appropriate~~ persons, in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled to rely, and shall be held harmless by ~~each~~ the Fund when acting in reliance, upon the ~~instructions, advice~~ any such information or ~~any~~ documents ~~relating to such Fund~~ provided to BNY, or upon any advice received from (i) a person reasonably believed by BNY to have been identified by a the Fund as authorized to give advice on behalf of the Fund or its advisors (each an "Authorized Person") (ii) Fund Counsel, or (iii) the Fund's ~~officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~Independent Accountants. BNY 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 from legal counsel or independent accountants to be provided to BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each~~ The Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY shall not be required to include as the 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. ~~Each~~ The Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies ~~such~~ the Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular securities pricing or similar service, but shall be required and obligated to maintain a subscription or access to at least one~~ securities pricing or similar service. (h) BNY may apply to an officer of ~~any~~ the Fund for written instructions with respect to any matter arising in connection with BNY's performance hereunder for ~~such~~ the Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the ~~appropriate~~ Fund or its own outside 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY shall have no duty or obligation to with respect to, including, without limitation, any duty or obligation to determine, or advise or notify ~~any~~ the Fund of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable ~~to, a~~ to the Fund, (ii) the taxable nature or effect on a 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 a the Fund to its shareholders; or (iv) the effect under any federal, state, or foreign income tax laws of a the Fund making or not making any distribution or dividend payment, or any election with respect thereto. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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 by a any authorized person on behalf of 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 a the Fund. In the event BNY'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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a the Fund or any third party described in this ~~subsection~~ (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a the Fund is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such~~ the Fund. (n) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (Powershares Exchange Traded Fund Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's ’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY may delegate any of its duties and obligations hereunder to any delegee or agent whenever and on such commercially reasonable 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.~~ Mellon Corporation. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection and retention of such delegee or agent. ~~With respect to any~~ Any BNY affiliated delegee or agent ~~which is a subsidiary of The Bank of New York Company, Inc., BNY~~ shall be ~~deemed~~ subject to ~~have committed any act or omission~~ the terms of ~~such delegee~~this Agreement. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to the BNY by ~~a Fund's officers~~any of the aforementioned persons. Absent BNY’s fraud, ~~advisors~~willful misconduct or bad faith, ~~sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY.~~ BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by each Fund when acting in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by BNY which BNY in its reasonable judgment deems reliable, absent BNY’s fraud, willful misconduct or bad faith, BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of ~~Securities~~ securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely the responsibility of the Fund. (h) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ taken or omitted to be taken by it in good faith in accordance with such instructions absent BNY’s negligence, fraud or willful misconduct in carrying out such instructions. Such application for instructions may, at the option of BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and absent BNY’s negligence, fraud or willful misconduct in carrying out such action, BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the appropriate ~~Fund or its own counsel~~Fund, 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice~~ counsel absent BNY’s fraud, willful misconduct or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fundbad faith. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY shall have no duty or obligation 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, in performing the services required of it under the terms of this ~~Agreement~~Agreement and schedules I and II attached hereto, shall be entitled to rely fully on the accuracy and validity of any and all instructions, explanations, information, specifications and documentation furnished to it by a 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~~securities; and amounts receivable or amounts payable for the sale or redemption of Fund shares effected by or on behalf of a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, absent BNY’s fraud, willful misconduct or bad faith, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall ~~maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY shall~~ not be responsible for delays or errors which occur by reason of circumstances beyond its reasonable control in the performance of its duties under this Agreement, including, without limitation, labor difficulties not within ~~or without~~ BNY’s control, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (IndexIQ Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each~~ the Fund's ’s Board and the provisions of this Agreement, BNY shall provide daily to each ~~Fund and each~~ Series ~~specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto and (ii) the valuation and computation and accounting services ~~described in~~ listed on Schedule III attached hereto, at such frequency as ~~such schedule may~~ contemplated therein, and as each shall be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("“Class"”) of each Series ~~of the Fund~~ and shall value the securities held by ~~the Fund~~ each Series (the "“Securities"”) at such times and dates and in the manner specified in the then currently effective Prospectus ~~of the Fund~~as provided to BNY. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's ’s Board and as specified in the Fund's ’s then currently effective ~~Prospectus~~Prospectus as provided to BNY, is at any time inconsistent with any applicable laws or regulations, the Fund shall immediately so notify BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each ~~Series'~~ Series 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 instruct BNY in writing to compute the value of the Securities or a Series' ’ or Class' ’ net asset value in a manner other than as specified in this paragraph. 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~~ Prospectuses of the Fund. The Fund shall have sole responsibility for determining the method of valuation of Securities and the method of computing each Series' ’ and Class' ’ net asset value. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY shall not provide any services relating to the management, investment advisory or sub-advisory functions of any Series of the Fund, distribution of shares of any Series of the Fund, maintenance of any Series of the Fund's ’s financial records other than ~~those listed on Schedule 1~~ as specified in this Agreement and pursuant to Schedules I and II attached hereto, or other services normally performed by the ~~Funds' respective~~ Fund’s counsel or independent auditors. (d) Upon receipt of a the Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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. and BNY shall be liable for the acts and omissions of any such subsidiary as if such acts and omissions were its own. BNY shall not be liable to ~~any~~ the Fund for any loss or damage arising out of, or in connection with, the actions or omissions to act of any unaffiliated delegee or agent utilized hereunder ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent. With respect to any agent or delegee ~~or agent which~~ that is a subsidiary of The Bank of New York ~~Company, Inc.~~Mellon Corporation, BNY shall be deemed to have committed any act or omission of such delegee. (e) ~~Each~~ The Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with BNY and to provide BNY, upon reasonable request, with such information, documents and advice relating to ~~such~~ the Fund as is within the possession or knowledge of such ~~persons~~ persons, and which BNY reasonably believes is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to BNY by ~~a Fund's officers~~any of the aforementioned persons, ~~advisors~~provided that BNY has reasonably determined such party to have been authorized to provide such information, ~~sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed~~ documents or advice provided to ~~be accurate by~~ BNY. BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by the Fund when acting in good faith reliance upon such information, documents or advice relating to such Fund, provided that (i) BNY has reasonably determined that such information was provided by an authorized person of the Fund and (ii) BNY is carrying out its duties under this Agreement in accordance with its standard of care. All fees or costs charged by such persons shall be borne by the ~~appropriate~~ Fund. In the event that any services performed by BNY hereunder rely, in whole or in part, upon information obtained from an unaffiliated third party service utilized or subscribed to by BNY which BNY in its reasonable judgment deems reliable, BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. For the avoidance of doubt, in the event that any services performed by BNY hereunder rely, in whole or in part upon information obtained from an affiliated service provider, BNY shall be liable for the acts and omissions of any such affiliated service provider as if such acts and omissions were its own. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder. (g) ~~Each~~ The Fund shall ~~furnish~~ furnish, and BNY ~~with~~ shall comply with, any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNY 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 of a Series and BNY shall comply with any such instructions, explanations, information, ~~specifications,~~ specifications and documentation. Notwithstanding any other provision in this Agreement, BNY shall not act on oral instructions from Authorized Persons unless the then-current certificate of the Fund specifying authorized persons, in the form set forth in Exhibit B, authorizes Authorized Persons to give oral instructions. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. ~~Each~~ The Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies ~~such~~ the Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY in its reasonable 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular independent securities pricing or similar service, but shall be required and obligated to maintain a subscription or access to at least one independent securities pricing or similar service. In no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely for the Fund. (h) BNY may apply to an officer or duly authorized agent of ~~any~~ the Fund provided authority to give written instructions in the then-current certificate in the form set forth in Exhibit B hereto for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for ~~such~~ any Series of the Fund, and BNY shall not be liable for any action ~~reasonably~~ taken or omitted to be taken by it in good faith in accordance with such instructions, in the absence of manifest error in the instructions. Such application for instructions ~~may, at the option of BNY,~~ shall set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by ~~BNY~~ BNY, in good faith, with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY shall not be liable for any action taken or omitted to be taken in good faith in accordance with a proposal included in any such application on or after the date specified ~~therein (~~therein, in the absence of manifest error in the application, provided that (i) BNY has received written instructions from such officer or authorized person authorizing the proposed action or omission or (ii) BNY has given the Fund or the officer ~~of the Funds~~ or authorized person a commercially reasonable amount of time to respond to the request for ~~instructions) unless~~instructions and the Fund, ~~prior~~ officer or authorized person has failed to ~~taking or omitting to take any~~ direct BNY during such ~~action, BNY has received written instructions in response to such application specifying the action to be taken or omitted~~time. (i) BNY may consult with counsel to the ~~appropriate~~ Fund or its own counsel, , and shall be fully protected with respect to anything done or omitted by it in good faith and without willful misconduct in accordance with the advice or opinion of such counsel. , so long as BNY ~~shall provide prompt~~ provides written notification to the ~~appropriate~~ Fund reasonably in advance of acting on the ~~event that it acts upon~~ advice or opinion of counsel ~~that~~ when such advice or opinion is inconsistent with ~~instructions, procedures,~~ the terms of this Agreement or ~~requests~~ other instructions or procedures provided by the Fund. ~~The appropriate~~ Each Series of the Fund shall be liable for the fees and expenses of its counsel. It is expressly understood and acknowledged that counsel to the Fund shall be under no obligation to provide advice or an opinion to BNY with respect to any matter. BNY may, at its own cost and ~~for~~ expense, consult with its own counsel in connection with the ~~reasonable fees and expense of BNY's own counsel, not~~ services to ~~exceed in any one instance $10,000 without the prior consent of the appropriate fund~~be performed under this Agreement. (j) ~~Notwithstanding any other provision contained~~ While BNY will perform certain tax services as explicitly contemplated in ~~this Agreement~~ Schedules I or ~~Schedule I~~ II attached hereto, BNY shall have no duty or obligation ~~with respect to, including, without limitation, any duty or obligation~~ to determine, or advise or notify ~~any~~ the Fund of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, a Series of the Fund, (ii) the taxable nature or effect on a Series of the Fund or its shareholders of any corporate actions, class actions, tax ~~reclaims~~reclaims (provided that, certain services relating to tax reclaims may be provided by BNY subject to the terms and conditions of a custodial services agreement), tax refunds or similar events, (iii) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by a Series of the Fund to its shareholders; or (iv) the effect under any federal, state, or foreign income tax laws of a Series of the Fund making or not making any distribution or dividend payment, or any election with respect thereto. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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 by on behalf of a Fund reasonably believed by BNY to be accurate and valid, 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;~~ including the amounts or formula for calculating the amounts and times of accrual ~~of Series'~~ liabilities and expenses; , and 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 a Fund. In the event BNY'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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this subsection (1) even though BNY 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 issuerssecurities. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a ~~Fund~~ Series is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such Fund~~the Series. (n) BNY shall continuously maintain such back-up ~~system(s),~~ systems and disaster recovery ~~plan(s),~~ plans as are required by ~~its regulators~~ all applicable laws and ~~all laws applicable to it~~regulations. Provided BNY maintains such required back-up systems and disaster recovery plans, BNY 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 BNY~~limitation , mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services ~~provided~~ (but not including labor stoppages at BNY ~~is maintaining such back-up system(s~~or any of its affiliates) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. Nor shall BNY 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 BNY or, subject to Section 4(d) herein, a designee or agent that is a subsidiary of The Bank of New York Mellon Corporation to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) Pursuant to its obligations hereunder, BNY ~~shall, as agent for the Funds,~~ shall maintain and keep current the books, records, accounts and other ~~documents, if any,~~ documents listed in on Schedule I II and preserve any such books, records, accounts and other documents in accordance with the Fund’s directions and the applicable provisions of Rules ~~31a-l~~ 31a-1 and 31a-2 of the General Rules and Regulations ~~under~~ of the Investment Company Act of 1940, as such Rules may be amended. Such books, records, accounts and other documents shall be made available ~~upon reasonable request for inspection by officers~~to the Fund, ~~employees~~ its officers and employees, and the Fund’s auditors ~~of the Funds~~ during BNY's ’s normal business hours. (p) All ~~records maintained~~ books, records, accounts and other documents preserved by BNY ~~pursuant to this Agreement which the Funds are required to maintain and preserve~~ in accordance with ~~the above-mentioned Rules 31a-l and 31a-2~~ Section 4(o) of this Agreement shall be and shall remain the property of the ~~Funds~~ Fund and shall be surrendered to the ~~Funds~~ Fund or ~~provided to their regulators~~ its regulator(s) promptly upon the Fund’s request ~~by the Funds~~ in the form ~~in which~~ such ~~records~~ books, records, or accounts have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) ~~All~~ BNY shall treat as confidential and hold in the strictest confidence all books, records, ~~information~~ accounts and ~~data~~ other documents belonging to the Fund or pertaining to the business of the ~~Funds~~Fund, ~~or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential~~ and shall not ~~be disclosed to any~~ disclose such books, records, accounts and other ~~person,~~ documents except as specifically authorized by the ~~Funds~~ Fund or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the ~~Funds~~ Fund in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated thereunder by the ~~Securities and Exchange Commission thereunder~~SEC, provided that the same do not change BNY's ’s standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (AQR Funds)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each Fund's~~ the Trust’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to ~~each Fund and each Series specified~~ the Funds (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto and (ii) the valuation, computation and accounting services ~~described in~~ listed on Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's Board and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valueII attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY shall not provide any services relating to the management, investment advisory or sub-advisory functions of ~~any Fund~~the Funds, distribution of shares of ~~any Fund~~the Funds, maintenance of ~~any Fund's~~ the Funds’ financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the ~~Funds' respective~~ Trust’s counsel or independent ~~auditors~~auditor. (d) Upon receipt of ~~a Fund's~~ the Trust’s prior written consent (which shall not be unreasonably withheld), BNY 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. No such delegation of its duties and obligations hereunder shall discharge BNY from its obligations hereunder. Notwithstanding the foregoing, no ~~Fund~~ Trust consent shall be required for any such delegation to any other subsidiary of The Bank of New York Company, ~~Inc.~~ Inc.; and BNY hereunder shall be as liable for the acts or omissions of any such subsidiary as if such acts or omissions were its own. BNY shall not be liable to ~~any Fund~~ the Trust 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or ~~wilful~~ willful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) ~~Each Fund~~ The Trust shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to ~~such Fund~~ the Trust as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. BNY shall not be liable for any loss, damage or expense resulting from or arising out of the failure of the ~~Fund~~ Trust to cause any information, documents or advice to be provided to BNY as provided ~~herein. All fees or costs charged by such persons~~ herein and shall be ~~borne~~ held harmless by the ~~appropriate Fund~~Trust when acting in reliance upon such information, documents or advice relating to the Trust. In the event that any services performed by BNY hereunder related to the calculation of the intraday indicative value or NAV rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by BNY which BNY in its reasonable judgment deems reliable, BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each Fund~~ The Trust shall furnish BNY with any and all instructions, explanations, information, specifications and documentation reasonably deemed ~~reasonably~~ necessary by BNY 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~~ Trust liabilities and ~~expenses and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY shall not be required to include as ~~Fund~~ Trust liabilities and expenses, nor as a reduction of net asset value, any accrual for any federal, state, or foreign income taxes unless the ~~Fund~~ Trust shall have specified to BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. ~~Each Fund~~ The Trust shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies ~~such Fund~~ the Trust that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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~~ Trust also may furnish BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Trust. (h) BNY may apply to an officer or duly authorized agent of ~~any Fund~~ the Trust for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for ~~such Fund~~the Trust, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be ~~taken~~taken (which date shall be reasonably selected by BNY given the particular circumstances), and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the ~~appropriate Fund~~ Trust at the Trust’s expense, with respect to any matter arising in connection with the services to be performed by BNY under this Agreement, and shall promptly advise the Trust of the advice or ~~its own~~ opinion of such counsel, 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~~. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon~~ ; provided such advice or opinion of is consistent with generally accepted industry legal standards, and further provided that the Trust’s counsel ~~that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund~~ shall be ~~liable for~~ under no obligation to provide advice to BNY with respect to any matter. BNY may, at its own cost and expense, consult with its own legal counsel in connection with the ~~fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not~~ services to ~~exceed in any one instance $10,000 without the prior consent of the appropriate fund~~be performed under this Agreement. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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~~ the Trust of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, ~~a Fund~~the Funds, (ii) the taxable nature or effect on ~~a Fund~~ the Funds or ~~its~~ their 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~~ the Funds to ~~its~~ their shareholders; or (iv) the effect under any federal, state, or foreign income tax laws of ~~a Fund~~ the Funds making or not making any distribution or dividend payment, or any election with respect thereto. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or ~~obligation~~ obligation, except for those set forth herein, shall be implied against BNY in connection with this Agreement. (1l) BNY, in performing the services required of it under the terms of this Agreement, shall be entitled to rely ~~fully~~ in good faith on the accuracy and validity of any and all instructions, explanations, information, specifications and documentation furnished to it by ~~a Fund~~ the Trust 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~~securities provided by the Trust; the amounts or formula for calculating the amounts and times of accrual of ~~Series'~~ the Funds’ 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~~ Funds’ shares effected by or on behalf of ~~a Fund~~the Funds. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by ~~a Fund~~ the Trust or any third party described in this ~~subsection (1)~~ section even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to ~~a Fund~~ the Funds is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such Fund~~the Trust. (n) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY~~, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services ~~provided~~ (but not including labor problems or work stoppages at BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesor any of its affiliates). Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation reasonably deemed necessary by BNY in the performance of its duties under this Agreement~~. (o) BNY shall, as agent for~~ . Upon the ~~Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve~~ occurrence of any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds delay or ~~provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds~~failure, BNY shall ~~provide in hard copy, computer disc, on micro-film or other format~~ use reasonable efforts to resume performance as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except soon as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances~~, BNY shall have no liability for any failure to do so~~. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (Bear Stearns Active Etf Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of DB Commodity Services LLC, in its capacity as managing owner of each ~~Fund's Board~~ of the Funds, and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons and is reasonably believed by BNY to be necessary or appropriate~~ persons, in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY 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 BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator~~ any of the aforementioned persons or Proper Instructions (~~if any) and transfer agent and reasonably believed to be accurate by BNY~~as hereinafter defined). BNY 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 BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY by Proper Instruction with bid, offer, or market values of ~~Securities~~ assets if BNY notifies such Fund that same are not available to BNY from a ~~security~~ pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY by Proper Instruction with bid, offer, or market values of ~~Securities~~ assets and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular securities~~ pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Fund. (h) BNY may apply to an officer of any Fund for ~~written instructions~~ Proper Instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ taken or omitted to be taken by it in good faith in accordance with such ~~instructions~~Proper Instructions. Such application for ~~instructions~~ Proper Instructions may, at the option of BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received ~~written instructions~~ Proper Instructions in response to such application specifying the action to be taken or omitted. (i) BNY 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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~~ Proper Instructions furnished to it by a Fund and shall have no duty or obligation to review the accuracy, validity or propriety of such ~~instructions, explanations, information, specifications or documentation,~~ Proper Instructions including, without limitation, ~~evaluations of securities~~evaluations; 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~~assets; and amounts receivable or amounts payable for the sale or redemption of Fund shares effected by or on behalf of a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of ~~securities or~~ other assets by a Fund or any third party described in this ~~subsection~~ (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall ~~maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall ~~be made available upon reasonable request for inspection by officers, employees and auditors of~~ provide the Funds ~~during~~ with custodial and transfer agency services on BNY~~'s normal business hours~~’s standard terms for no additional consideration. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (DB Commodity Index Tracking Master Fund)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's ’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund and each Series specified on Exhibit A attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule I attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with the BNY and to provide the BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of the BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ The BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to the BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. The BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by each Fund when acting in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by the BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNY which the BNY in its reasonable judgment deems reliable, the BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each~~ Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of the Fund and shall value the securities held by the Fund at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Fund. BNY shall provide a report of such net value to the Fund and Authorized Participants at the respective times set forth in Schedule I, as amended from time to time. To the extent valuation of securities or computation of a 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such securities and the Fund’s net asset value, or subject to the prior approval of BNY, instruct BNY in writing to value securities and compute 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 BNY, instruct BNY in writing to compute the value of the securities or net asset value in a manner other than as specified in this paragraph. 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 net asset value. (h) The Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service~~, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~. (hi) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ij) BNY 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (jk) Notwithstanding any other provision contained in this Agreement or Schedule I attached hereto, BNY 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 its 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. (kl) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and Schedule I attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1m) BNY, 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 by a 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 a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1m) even though BNY 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. (mn) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (no) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Accounting Agreement (ALPS ETF Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each Fund~~the Trust's Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to ~~each Fund and each Series specified~~ the Trust (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY ~~shall not~~ may, pursuant to a separate agreement, provide ~~any~~ services relating to the ~~management, investment advisory or~~ sub-advisory functions of ~~any Fund~~the Trust or maintenance of the Trust's shareholder records, but shall have no duty or obligation to provide such services under this Agreement. BNY shall in no event provide services relating to distribution of shares of ~~any Fund, maintenance of any Fund's financial records other than those listed on Schedule 1~~ the Trust or other services normally performed by the ~~Funds'~~ Trust's respective counsel or independent auditors. (d) Upon receipt of ~~a Fund~~the Trust's prior written ~~consent (which shall not be unreasonably withheld)~~consent, BNY 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; provided, however, that no such delegation of its duties and obligations hereunder shall discharge BNY from its obligations hereunder. Notwithstanding the foregoing, no ~~Fund~~ Trust consent shall be required for any such delegation to any other subsidiary or affiliate of ~~The Bank of New York Company, Inc. BNY 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 other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., and BNY hereunder shall be ~~deemed to have committed~~ as liable for the acts or omissions of any ~~act~~ such subsidiary or affiliate as if such acts or omission ~~of such delegee~~were its own. (e) ~~Each Fund~~ The Trust shall cause its officers, advisors, sponsor, distributor, legal ~~counsel~~counsel (subject to any applicable privileges), independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to ~~such Fund~~ the Trust as is within the possession or knowledge of such ~~persons~~ persons, and which, in the reasonable opinion of BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled to reasonably rely, and shall be held harmless by ~~each Fund~~ the Trust when acting in reasonable reliance, upon the ~~instructions~~foregoing, upon any Proper Instructions, as that term is defined herein in Section 6, or open advice or any documents relating to ~~such Fund~~ the Trust provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and~~ any of the individuals listed on Exhibit B attached hereto or any individual reasonably believed by BNY to be accurate by BNY. BNY 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 BNY as provided hereinan Authorized Person (each an "Authorized Person"). All fees or costs charged by such persons shall be borne by the ~~appropriate Fund~~Trust. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder. (g) ~~Each~~ Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of the Fund and shall value the securities held by the Fund at such times and dates and in the manner specified in the then-effective Prospectus of the Trust and in accordance with the Trust's valuation procedures actually provided to BNY, except that, notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Trust. BNY shall provide a report of such net asset value to the Trust and Authorized Participants at the respective times set forth in Schedule II, as amended from time to time. To the extent valuation of securities or computation of a net asset value as specified in the Trust's then-effective Prospectus and valuation procedures actually provided to BNY are at any time inconsistent with any applicable laws or regulations, the Trust or BNY, as applicable shall immediately so notify the other party in writing and thereafter BNY shall value securities and/or compute net asset value or other computations consistent with the Trust's Prospectus and valuation procedures actually provided to BNY, as they may be amended, which amendments shall constitute a representation by the Trust (which representation shall be deemed to be continuing) that the same is consistent with all applicable laws and regulations and with its amended Prospectus or valuation procedures. The Trust may also from time to time instruct BNY in writing to compute the value of the securities or net asset value in a manner other than as specified in this paragraph. By giving such instruction, the Trust shall be deemed to have represented that such instruction is consistent with all applicable laws and regulations and the then-effective Prospectus and valuation procedures of the Trust. The Trust shall have sole authority and responsibility for determining the method of valuation of securities and the method of computing net asset value. (h) The Trust shall furnish BNY with Proper Instructions, as that term is defined herein in Section 6, containing any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNY in the performance of its duties hereunder, including, without limitation, valuation procedures describing the amounts or written formula for calculating the amounts and times of accrual of ~~Fund~~ Trust liabilities and ~~expenses and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY shall not be required to include as ~~Fund~~ Trust liabilities and expenses, nor as a reduction of net asset value, any accrual for any federal, state, or foreign income taxes unless the ~~Fund~~ Trust shall have specified to BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. ~~Each Fund~~ At the Trust's request, BNY will use good faith efforts to arrange for the provisions of valuation information or price(s) from party(ies) independent of the Trust, and identified by the Trust or its authorized agents, for each security or other investment/asset in the Trust for which market prices are not readily available. The Trust shall also furnish BNY with bid, offer, or market values of ~~Securities~~ securities if BNY notifies ~~such Fund~~ the Trust that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY ~~which~~ that BNY 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~~ Trust also may furnish BNY with bid, offer, or market values of ~~Securities~~ securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service~~, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~. (hi) BNY may apply to an officer of ~~any Fund~~ the Trust for written ~~instructions~~ Proper Instructions, as that term is defined herein in Section 6, with respect to any matter arising in connection with BNY's performance hereunder for ~~such Fund~~the Trust, and BNY shall not be liable for any action ~~reasonably~~ taken or omitted to be taken by it in good faith in accordance with such ~~instructions~~Proper Instructions. Such application ~~for instructions~~ may, at the option of BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 (provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions) unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ij) BNY may consult with counsel to the ~~appropriate Fund or its own counsel,~~ Trust at the Trust's expense with respect to any matter arising in connection with the services to be performed by BNY under this Agreement and BNY shall be fully protected with respect to anything done or omitted by it in good faith and in accordance with the advice or opinion of ~~such~~ Trust counsel. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (jk) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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~~ the Trust of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, ~~a Fund,~~ the Trust; (ii) the taxable nature or effect on ~~a Fund~~ the Trust 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~~ the Trust to its shareholders; or (iv) the effect under any federal, state, or foreign income tax laws of ~~a Fund~~ the Trust making or not making any distribution or dividend payment, or any election with respect thereto. (kl) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or ~~obligation~~ obligation, except for those set forth herein, shall be implied against BNY in connection with this Agreement. (1m) BNY, 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 by a Fund and BNY shall have no duty or obligation to review the accuracy, validity or propriety of ~~such instructions~~Proper Instructions, explanations, information, specifications or ~~documentation,~~ documentation furnished by Authorized Persons including, without limitation, : (i) evaluations of securities; (ii) valuation procedures describing the amounts or formula for calculating the amounts and times of accrual of ~~Series'~~ Fund liabilities and expenses; (iii) the amounts receivable and the amounts payable on the sale or purchase of ~~Securities~~securities; and (iv) amounts receivable or amounts payable for the sale or redemption of Fund shares effected by or on behalf of ~~a Fund~~the Trust. In the event BNY'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 BNY ~~which BNY~~ that BNY, in its ~~judgment~~ reasonable judgment, deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by ~~a Fund~~ the Trust or any third party described in this ~~subsection~~ sub-section (1m) even though ~~BNY~~ BNY, in performing services similar to the services provided pursuant to this Agreement for ~~others~~ others, may receive different valuations of the same or different securities of the same issuers. (mn) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to ~~a Fund~~ the Trust is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such Fund~~the Trust. (no) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY shall not be responsible for delays or errors ~~which~~ that 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, or communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the sameservices. BNY ~~should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. Nor~~ shall ~~BNY~~ not 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement~~. (o) BNY shall, as agent for~~ . Upon the ~~Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve~~ occurrence of any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds delay or ~~provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds~~failure, BNY shall ~~provide in hard copy, computer disc, on micro-film or other format~~ use commercially reasonable efforts to resume performance as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except soon as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, . BNY ~~shall have no liability for any failure to do so. (r) BNY hereby specifically agrees~~ further represents that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities has developed and ~~Exchange Commission thereunder~~implemented commercially reasonable business continuity and disaster recovery policies, ~~provided the same do not change BNY's standard of care~~procedures and facilities.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (RevenueShares ETF Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's ’s Board and the provisions of this Agreement, BNY shall provide daily to each Fund and each Series specified on Exhibit A attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("“Class"”) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's ’s Board and as specified in the Fund's ’s then currently effective Prospectus, is at any time inconsistent with any applicable laws or regulations, the Fund shall immediately so notify BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series'’, or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' ’ 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 instruct BNY in writing to compute the value of the Securities or a Series' ’ or Class' ’ net asset value in a manner other than as specified in this paragraph. 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' ’ and Class' ’ net asset value. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial records other than those listed on Schedule 1 or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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. BNY 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 other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such persons and is reasonably believed by BNY to be necessary or appropriate in order for BNY to perform its duties hereunder. In connection with its duties hereunder, BNY 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 BNY by a Fund's ’s officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY. BNY 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 BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service. (h) BNY may apply to an officer of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action reasonably 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 BNY, set forth in writing any action reasonably proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 (provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions) unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the appropriate Fund or its own counsel, 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's ’s own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I attached hereto, BNY shall have no duty or obligation 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and Schedule I attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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 by a 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 a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this subsection (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules ~~31a-l~~ 31a-1 and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's ’s normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules ~~31a-l~~ 31a-1 and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's ’s duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's ’s standard of care.

Appears in 1 contract

Samples: Fund Accounting Agreement (ING Separate Portfolios Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's Board and the provisions of this Agreement, BNY shall provide daily to each Fund and each Series specified on Exhibit A attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's Board and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset value. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 other than those listed on Schedule 1 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), BNY 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. BNY 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 other than a delegee or agent which is a subsidiary or the Bank of New York Company, ~~Inc~~ Inc. so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such persons and is reasonably believed by BNY to be necessary or appropriate in order for BNY to perform its duties hereunder. In connection with its duties hereunder, BNY 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 BNY by a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY. BNY 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 BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service. (h) BNY may apply to an officer of any Fund for written instructions with respect to any matter arising in connection with BNY's performance hereunder for such Fund, and BNY shall not be liable for any action reasonably 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 BNY, set forth in writing any action reasonably proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 (provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions) unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the appropriate Fund or its own counsel, 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I attached hereto, BNY shall have no duty or obligation 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and Schedule I attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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 by a 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 a Fund. In the event BNY'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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this subsection (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Accounting Agreement (Ing Global Equity Dividend & Premium Opportunity Fund)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each~~ the Fund's ~~Board~~ Trustees and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund and each Series specified on Exhibit A attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each Series of the Fund and shall value the securities held by the Fund (i) the ~~"Securities"~~administrative services set forth on Schedule I attached hereto and (ii) at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY shall not provide any services relating to the management, investment advisory or sub-advisory functions of ~~any~~ the Fund, distribution of shares of ~~any~~ the Fund, maintenance of ~~any~~ the Fund's financial ~~records other than those listed on Schedule 1~~ records, except to the extent specifically set forth herein or other services normally performed by the Funds' respective counsel or independent auditors. (d) Upon receipt of a the Fund's prior written consent (which shall not be unreasonably withheld), BNY 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. BNY shall not be liable to ~~any~~ 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 unaffiliated with BNY and utilized hereunder ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or ~~wilful~~ willful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) ~~Each~~ The Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such ~~information,~~ information or documents ~~and advice~~ relating to ~~such~~ the Fund as is within the possession or knowledge of such ~~persons and is reasonably believed by BNY to be necessary or appropriate~~ persons, in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled to rely, and shall be held harmless by ~~each~~ the Fund when acting in reliance, upon the instructions, advice or any documents ~~relating to such Fund~~ provided to BNY from (i) a person reasonably believed by a BNY to have been identified by the Fund as authorized to give advice on behalf of the Fund or its advisors (each an "Authorized Person"), (ii) Fund counsel, (iii) the Fund's ~~officers, advisors, sponsor, distributor, legal counsel,~~ independent accountants, ~~current administrator~~ (~~if any~~iv) the Fund's adviser and ~~transfer agent and reasonably believed to be accurate by BNY~~(v) the Fund's distributor. BNY 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 from legal counsel or independent accountants to be provided to BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder. (g) ~~Each~~ The Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. ~~Each~~ The Fund shall also furnish BNY with bid, offer, or market values of ~~Securities~~ the Fund's portfolio securities ("Securities") if BNY notifies ~~such~~ the Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Fund. (h) BNY may apply to an officer of ~~any~~ the Fund for written instructions with respect to any matter arising in connection with BNY's performance hereunder for ~~such~~ the Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) If BNY shall be in doubt as to any question of law pertaining to any action it should or should not take, BNY may ~~consult~~ request advice from outside counsel of its own choosing (who may be counsel for the Fund, the Fund's investment adviser or BNY, at the option of BNY). The Fund shall pay the reasonable cost of any counsel retained by BNY with ~~counsel~~ prior notice to the appropriate Fund or its own counsel, 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify ~~any~~ the Fund of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable ~~to, a~~ to the Fund, (ii) the taxable nature or effect on a 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 a the Fund to its shareholders; , or (iv) the effect under any federal, state, or foreign income tax laws of a the Fund making or not making any distribution or dividend payment, or any election with respect thereto. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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 by a any Authorized Person on behalf of 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 a the Fund. In the event BNY'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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a the Fund or any third party described in this ~~subsection~~ paragraph (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a the Fund is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such~~ the Fund. (n) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (First Trust Exchange-Traded Fund)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's ’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with the BNY and to provide the BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of the BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ The BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to the BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. The BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by each Fund when acting in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by the BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNY which the BNY in its reasonable judgment deems reliable, the BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each~~ Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of the Fund and shall value the securities held by the Fund at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Fund. BNY shall provide a report of such net value to the Fund and Authorized Participants at the respective times set forth in Schedule II, As amended from time to time. To the extent valuation of securities or computation of a 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such securities and the Fund’s net asset value, or subject to the prior approval of BNY, instruct BNY in writing to value securities and compute 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 BNY, instruct BNY in writing to compute the value of the securities or net asset value in a manner other than as specified in this paragraph. 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 net asset value. (h) The Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service~~, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~. (hi) BNY may apply to an ~~officer of any Fund~~ Authorized Person for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ij) BNY may consult with counsel to the appropriate Fund or its own outside 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (jk) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (kl) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1m) BNY, 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 by a 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 a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1m) even though BNY 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. (mn) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (no) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (SPA ETF Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's ’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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.~~ Mellon Corporation. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with the BNY and to provide the BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of the BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ The BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall be held harmless by each Fund when acting in reliance~~or he deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to the BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. The BNY 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 BNY as provided ~~herein~~herein and shall he held harmless by each Fund when acting in reliance in good faith upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by the BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNY which the BNY in its reasonable judgment deems reliable, the BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each~~ Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of the Fund and shall value the securities held by the Fund at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall he solely the responsibility of the Fund. BNY shall provide a report of such net value to the Fund and Authorized Participants at the respective times set forth in Schedule II, as amended from time to time. To the extent valuation of securities or computation of a 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such securities and the Fund’s net asset value, or subject to the prior approval of BNY, instruct BNY in writing to value securities and compute 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 BNY, instruct BNY in writing to compute the value of the securities or net asset value in a manner other than as specified in this paragraph. 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 net asset value. (h) The Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of ~~Securities~~ securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service~~, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~. (hi) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ij) BNY 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (jk) ~~Notwithstanding~~ Not withstanding any other provision contained in this Agreement or Schedule I l or ll attached ~~hereto~~here to, BNY 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 its 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. (kl) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against ~~BNY~~ I3NY in connection with this Agreement. (1m) BNY, 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 by a 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 a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1m) even though ~~BNY~~ I3NY 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. (mn) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (no) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (U.S. One Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ~~other than those listed on Schedule 1~~ 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), BNY 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. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or ~~wilful~~ willful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, ; independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons and is reasonably believed by BNY to be necessary or appropriate~~ persons, in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY 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 BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. BNY 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 BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service., (h) BNY may apply to an officer of any Fund for written instructions with respect to any matter arising in connection with BNY's performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 ~~its~~ 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) ~~BNY~~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 by a 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 a Fund. In the event BNY'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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this subsection (1) even though BNY 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.or (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall ~~maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY 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 ~~BNY~~the Bank, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Administration and Fund Accounting Agreement (New York Life Investment Management Institutional Funds)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's ’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund and each Series specified on Exhibit A attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule I attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with the BNY and to provide the BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of the BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ The BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to the BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. The BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by each Fund when acting in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by the BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNY which the BNY in its reasonable judgment deems reliable, the BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each~~ Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of the Fund and shall value the securities held by the Fund at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Fund. BNY shall provide a report of such net value to the Fund and Authorized Participants at the respective times set forth in Schedule I, as amended from time to time. To the extent valuation of securities or computation of a 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such securities and the Fund’s net asset value, or subject to the prior approval of BNY, instruct BNY in writing to value securities and compute 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 BNY, instruct BNY in writing to compute the value of the securities or net asset value in a manner other than as specified in this paragraph. 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 net asset value. (h) The Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service~~, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~. (hi) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ij) BNY 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (jk) Notwithstanding any other provision contained in this Agreement or Schedule I attached hereto, BNY 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 its shareholders; or 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. (kl) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and Schedule I attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1m) BNY, 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 by a 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 a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1m) even though BNY 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. (mn) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (no) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Accounting Agreement (ALPS ETF Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's ’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 other than those listed on Schedule 1~~ or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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~~Mellon Corporation, ~~Inc.~~ but BNY shall notify the Funds prior to any such delegation. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or ~~wilful~~ willful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company~~, ~~Inc.,~~ provided that BNY shall be ~~deemed~~ liable for the acts or omissions of any BNY affiliate to ~~have~~ the same extent it would be liable under the terms hereof had it committed ~~any~~ such act or omission of and not delegated the same to such ~~delegee~~BNY affiliate. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with the BNY and to provide the BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of the BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ The BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to the BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. The BNY 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 BNY as provided herein. All fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by the BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNY which the BNY in its reasonable judgment deems reliable, the BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. In no event shall BNY ~~shall at no time~~ be required ~~or obligated~~ to ~~commence or maintain any utilization of~~determine, or ~~subscriptions~~ have any obligations with respect to, whether a market price represents any ~~particular securities pricing~~ fair or ~~similar service~~true value, ~~but~~ nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Fund. (h) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the appropriate Fund or its own ~~counsel,~~ counsel 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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 by a 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 a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall ~~maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (Cullen Funds Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's ’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY shall not provide any services relating to the ~~management,~~ investment advisory or sub-advisory functions of any ~~Fund,~~ Fund and distribution of shares of any ~~Fund, maintenance of any Fund's financial records other than those listed on Schedule 1~~ Fund or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with the BNY and to provide the BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of the BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ The BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to the BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. The BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by each Fund when acting in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by the BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNY which the BNY in its reasonable judgment deems reliable, the BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Fund. (h) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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 by a 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 a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall ~~maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (Williams Capital Management Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each~~ the Fund's ’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to ~~each~~ a Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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.~~ Mellon Corporation. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or ~~wilful~~ willful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) ~~Each~~ The Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with the BNY and to provide the BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of the BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ The BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to the BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. The BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by a Fund when acting in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by the BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNY which the BNY in its reasonable judgment deems reliable, the BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each~~ Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of the Fund and shall value the securities held by the Fund at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Fund. BNY shall provide a report of such net value to the Fund and Authorized Participants at the respective times set forth in Schedule II, as amended from time to time. To the extent valuation of securities or computation of a 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such securities and the Fund’s net asset value, or subject to the prior approval of BNY, instruct BNY in writing to value securities and compute 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 BNY, instruct BNY in writing to compute the value of the securities or net asset value in a manner other than as specified in this paragraph. 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 net asset value. (h) The Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. ~~Each~~ The Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service~~, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~. (hi) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ij) BNY 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (jk) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (kl) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1m) BNY, 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 by a 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 a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1m) even though BNY 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. (mn) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (no) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement~~. (o) BNY shall, as agent for~~ . Upon the ~~Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve~~ occurrence of any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds delay or ~~provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds~~failure, BNY shall ~~provide in hard copy, computer disc, on micro-film or other format~~ use commercially reasonable efforts to resume performance as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except soon as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, . BNY ~~shall have no liability for any failure to do so. (r) BNY hereby specifically agrees~~ further represents that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities has developed and ~~Exchange Commission thereunder~~implemented commercially reasonable business continuity and disaster recovery policies, ~~provided the same do not change BNY's standard of care~~procedures and facilities.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (EGA Emerging Global Shares Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's ’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent. ~~With respect to any~~ Any such delegee or agent ~~which is a subsidiary of The Bank of New York Company, Inc., BNY~~ shall be ~~deemed~~ subject to ~~have committed any act or omission~~ the terms of ~~such delegee~~this Agreement. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with the BNY and to provide the BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of the BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ The BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to the BNY by ~~a Fund's officers~~any of the aforementioned persons. Absent BNY’s negligence, ~~advisors~~fraud or willful misconduct, ~~sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY.~~ BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by each Fund when acting in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by the BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNY which the BNY in its reasonable judgment deems reliable, absent BNY’s negligence, fraud or willful misconduct, BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely the responsibility of the Fund. (h) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ taken or omitted to be taken by it in good faith in accordance with such ~~instructions~~instructions absent BNY’s negligence, fraud or willful misconduct. Such application for instructions may, at the option of BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and absent BNY’s negligence, fraud or willful misconduct, BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the appropriate Fund or its own counsel, at its own 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~~. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice~~ , absent BNYmaking’s negligence, fraud or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fundwillful misconduct. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY shall have no duty or obligation 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1) BNY, in performing the services required of it under the terms of this ~~Agreement~~Agreement and schedules I and II attached hereto, shall be entitled to rely fully on the accuracy and validity of any and all instructions, explanations, information, specifications and documentation furnished to it by a 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~~securities; and amounts receivable or amounts payable for the sale or redemption of Fund shares effected by or on behalf of a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, absent BNY’s negligence, fraud or willful misconduct, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall ~~maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY shall~~ not be responsible for delays or errors which occur by reason of circumstances beyond its reasonable control in the performance of its duties under this Agreement, including, without limitation, labor difficulties ~~within or without~~ not related to BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (IndexIQ ETF Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each ~~Fund's Board~~ Fund and the provisions of this Agreement, BNY shall provide ~~daily~~ to ~~each Fund and each Series specified on Exhibit A attached hereto the services described in Schedule I, as~~ such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each Series of the Fund and shall value the securities held by the Fund (i) the ~~"Securities"~~administrative services set forth on Schedule I attached hereto, and (ii) at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY shall not provide ~~any~~ services relating to the management, investment advisory or sub-advisory functions of any Fund, distribution of ~~shares~~ membership interests of any Fund, ~~maintenance of any Fund's financial records other than those listed on Schedule 1~~ or other services normally performed by the ~~Funds' respective~~ Fund’s counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY may delegate any of its duties and obligations hereunder to such Fund to any delegee or agent whenever and on such terms and conditions as it deems necessary or appropriate. Notwithstanding the foregoing, no ~~Fund~~ Fund’s consent shall be required for any such delegation to any other subsidiary of The Bank of New York Company, Inc. (hereinafter a “BNY Affiliate”) notwithstanding the domicile of such Bank Affiliate, and BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or ~~wilful~~ willful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company~~, ~~Inc.,~~ provided that BNY shall be ~~deemed~~ liable for the acts or omissions of any BNY Affiliate to ~~have~~ the same extent it would be liable under the terms hereof had it committed ~~any~~ such act or omission of and not delegated the same, and BNY shall notify each affected Fund upon any such ~~delegee~~delegation to a BNY Affiliate. (e) Each Fund shall cause its officers, managers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to ~~such~~ that Fund as is within the possession or knowledge of such persons ~~and is reasonably believed by BNY to be necessary or appropriate~~ in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled reasonably to rely, and shall be held harmless by each Fund when acting in reliance, upon the instructions, advice or any documents relating to ~~such~~ a Fund provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. BNY shall not be liable for any loss, damage or expense resulting from or arising out of the failure of ~~the~~ a Fund to cause any information, documents or advice to be provided to BNY as provided herein, provided BNY acts without negligence or willful misconduct. All fees or costs charged by such persons shall be borne by the ~~appropriate~~ relevant Fund. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of or BNY Affiliate or any officer or employee thereof from acting for or with any third ~~parties,~~ parties and providing services similar or identical to some or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Fund. (h) BNY may apply to an officer of ~~any~~ a Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ taken or ~~omitted to be~~ not taken by it in good faith in accordance with such instructions. Such application for instructions may, at the option of BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to ~~the appropriate~~ a 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 after consultation with the Fund in accordance with the advice or opinion of such counsel. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this ~~Agreement~~ Agreement, but to the extent expressly otherwise provided in Schedules I or ~~Schedule I~~ II attached hereto, BNY shall have no duty or obligation to with respect to, including, without limitation, any duty or obligation to determine, or advise or notify ~~any~~ a Fund of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, a such Fund, (ii) the taxable nature or effect on a such Fund or its ~~shareholders~~ members 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~~ other amount paid, payable or deemed paid, by a such Fund to its ~~shareholders~~members; or (iv) the effect under any federal, state, foreign, or ~~foreign~~ other applicable income tax laws of a such Fund making or not making any distribution or ~~dividend~~ other payment, or any election with respect thereto. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and Schedule I attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1) BNY, in performing the services required of it under the terms of this Agreement, shall be entitled reasonably to rely fully on the accuracy and validity of any and all instructions, explanations, information, specifications and documentation furnished to it by a 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'~~ a Fund’s 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~~ membership interests effected by or on behalf of a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, or from a broker-dealer selected by BNY, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ sub-section (1k) even though BNY 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. (m1) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such~~ the Fund. (nm) Subject to the provisions of the Agreement, BNY shall ~~maintain~~ compute the net asset value per share of membership interest of each Fund and shall value the Securities held by such ~~back-up system(s),~~ Fund at such times and ~~disaster recovery plan(s), as are required by its regulators~~ dates and ~~all laws applicable to it. BNY shall not be responsible for delays or errors which occur by reason of circumstances beyond its control~~ in the ~~performance~~ manner specified in the then currently effective Confidential Offering Memorandum of ~~its duties under this Agreement~~such Fund, except that notwithstanding any language in the Confidential Offering Memorandum, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, ~~labor difficulties within~~ those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely for each Fund. BNY shall provide a report of such net value to the Fund and Authorized Participants at the respective times agreed to between the parties from time to tune. To the extent valuation of Securities or ~~without~~ computation of a Fund’s net asset value as specified in the Fund’s then currently effective Confidential Offering Memorandum is at any time inconsistent with any applicable laws or regulations, such Fund shall immediately so notify BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and net asset value, or subject to the prior approval of BNY, ~~mechanical breakdowns~~instruct BNY in writing to value Securities and compute net asset value in a manner which such Fund then represents in writing to be consistent with all applicable laws and regulations. Such Fund may also from time to time, ~~flood~~ subject to the prior approval of BNY, instruct BNY in writing to compute the value of the Securities or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) net asset value in a manner other than as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. Nor shall BNY be responsible for delays or failures to supply the information or services specified in this ~~Agreement where~~ sub-section (m). By giving such ~~delays~~ instruction, such Fund shall be deemed to have represented that such instruction is consistent with all applicable laws and regulations and its then currently effective Confidential Offering Memorandum. Each Fund shall have sole responsibility for determining the method of valuation of Securities and the method of computing net asset value. (n) In providing the services hereunder BNY is authorized to utilize any legal, tax or ~~failures are caused~~ other regulatory, compliance, or monitoring services, in each case not a BNY Affiliate, reasonably believed by ~~the failure~~ BNY to be reliable to provide information. Each Fund agrees that BNY shall not be liable for any loss, damage or expense incurred as a result of errors or omissions of any ~~person(s) other than BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary~~ vendor utilized by BNY ~~in the performance~~ or any permitted delegee or agent hereunder, and that no such vendor shall be an agent or delegee of ~~its duties under this Agreement~~BNY. (o) BNY ~~shall,~~ shall have no duties or responsibilities whatsoever except such duties and responsibilities as ~~agent for the Funds, maintain~~ are specifically set forth in this Agreement and ~~keep current the books, accounts and other documents, if any, listed in Schedule~~ Schedules I and ~~preserve any such books~~II attached hereto, ~~accounts~~ and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents no covenant or obligation shall be ~~made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by~~ implied against BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with ~~the performance of BNY's duties under~~ this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do soAgreement. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Services Agreement (GreenHaven Continuous Commodity Index Fund)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each Fund's~~ the Trust’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to ~~each Fund and each Series specified~~ the Funds (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto and (ii) the valuation, computation services ~~described in~~ listed on Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's Board and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valueII attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY shall not provide any services relating to the management, investment advisory or sub-advisory functions of ~~any Fund~~the Funds, distribution of shares of ~~any Fund~~the Funds, maintenance of ~~any Fund's~~ the Funds’ financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the ~~Funds' respective~~ Trust’s counsel or independent ~~auditors~~auditor. (d) Upon receipt of ~~a Fund's~~ the Trust’s prior written consent (which shall not be unreasonably withheld), BNY may delegate any of its duties and obligations hereunder to any delegee or agent whenever and on such commercially reasonable terms and conditions as it deems necessary or appropriate. No such delegation of its duties and obligations hereunder shall discharge BNY from its obligations hereunder. Notwithstanding the foregoing, no ~~Fund~~ Trust consent shall be required for any such delegation to any other subsidiary of The Bank of New York ~~Company~~Mellon Corporation, ~~Inc.~~ and BNY hereunder shall be as liable for the acts or omissions of any such subsidiary as if such acts or omissions were its own. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or ~~wilful~~ willful misconduct in the selection and retention of such delegee or agent. ~~With respect to any~~ Any BNY affiliated delegee or agent ~~which is a subsidiary of The Bank of New York Company, Inc., BNY~~ shall be ~~deemed~~ subject to ~~have committed any act or omission~~ the terms of ~~such delegee~~this Agreement. (e) ~~Each Fund~~ The Trust shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to ~~such Fund~~ the Trust as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to BNY by ~~a Fund's officers~~any of the aforementioned persons. Absent BNY’s fraud, ~~advisors~~willful misconduct or bad faith, ~~sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY.~~ BNY shall not be liable for any loss, damage or expense resulting from or arising out of the failure of the ~~Fund~~ Trust to cause any information, documents or advice to be provided to BNY as provided ~~herein~~herein and shall be held harmless by the Trust when acting in reliance upon such information, documents or advice relating to the Trust. All fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by BNY hereunder related to the calculation of the intraday indicative value or net asset value rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by BNY which BNY in its reasonable judgment deems reliable, absent BNY’s fraud, willful misconduct or bad faith, BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation reasonably deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of ~~Securities~~ securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of ~~Securities~~ securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely the responsibility of the Fund. (h) BNY may apply to an officer or duly authorized agent of ~~any Fund~~ the Trust for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for ~~such Fund~~the Trust, and BNY shall not be liable for any action ~~reasonably~~ taken or omitted to be taken by it in good faith in accordance with such instructions absent BNY’s negligence, fraud or willful misconduct in carrying out such instructions. Such application for instructions may, at the option of BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be ~~taken~~taken (which date shall be reasonably selected by BNY given the particular circumstances), and absent BNY’s negligence, fraud or willful misconduct in carrying out such actions, BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the ~~appropriate Fund~~ Trust at the Trust’s expense, with respect to any matter arising in connection with the services to be performed by BNY under this Agreement, and shall promptly advise the Trust of the advice or ~~its own~~ opinion of such counsel, 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon~~ counsel absent BNY’s fraud, willful misconduct or bad faith; provided such advice or opinion of is consistent with generally accepted industry legal standards, and further provided that the Trust’s counsel ~~that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund~~ shall be ~~liable for~~ under no obligation to provide advice to BNY with respect to any matter. BNY may, at its own cost and expense, consult with its own legal counsel in connection with the ~~fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not~~ services to ~~exceed in any one instance $10,000 without the prior consent of the appropriate fund~~be performed under this Agreement. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY shall have no duty or obligation 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or ~~obligation~~ obligation, except for those set forth herein, shall be implied against BNY in connection with this Agreement. (1l) BNY, in performing the services required of it under the terms of this ~~Agreement~~Agreement and schedules I and II attached hereto, shall be entitled to rely ~~fully~~ in good faith on the accuracy and validity of any and all instructions, explanations, information, specifications and documentation furnished to it by a 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~~securities provided by the Fund; the amounts or formula for calculating the amounts and times of accrual of ~~Series'~~ a Fund’s liabilities and expenses; the amounts receivable and the amounts payable on the sale or purchase of ~~Securities~~securities; and amounts receivable or amounts payable for the sale or redemption of Fund shares effected by or on behalf of a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, absent BNY’s fraud, willful misconduct or bad faith, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection (1)~~ section even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall ~~maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY shall~~ not be responsible for delays or errors which occur by reason of circumstances beyond its reasonable control in the performance of its duties under this Agreement, including, without limitation~~, labor difficulties within or without BNY~~, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services ~~provided~~ (but not including labor problems or work stoppages at BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesor any of its affiliates). Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation reasonably deemed necessary by BNY in the performance of its duties under this Agreement~~. (o) BNY shall, as agent for~~ . Upon the ~~Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve~~ occurrence of any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds delay or ~~provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds~~failure, BNY shall ~~provide in hard copy, computer disc, on micro-film or other format~~ use reasonable efforts to resume performance as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except soon as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances~~, BNY shall have no liability for any failure to do so~~. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (IndexIQ Active ETF Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each Fund's~~ the Trust’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to the Trust (i) the administrative services set forth on Schedule I attached hereto and (ii) the valuation and computation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY may, pursuant to a separate agreement, provide certain sub-advisory services, but shall not provide any services relating to the management, investment advisory or sub-advisory functions of the Trust pursuant to this agreement or its terms or, as related to the maintenance of the Trust's shareholder records. BNY shall in no event provide services relating to the distribution of shares of the Trust or other services normally performed by the Trust's respective distributor, counsel or independent auditors. (d) Upon receipt of the Trust's prior written consent, BNY 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 provided, however, that no such delegation of its duties or obligations hereunder shall discharge BNY from its obligations to provide or secure the provision of services hereunder. Notwithstanding the foregoing, no Trust consent shall be required for any such delegation to any other subsidiary of The Bank of New York Mellon Corporation, and BNY shall remain liable for the acts or omissions of such affiliate as if performed directly by BNY as contemplated hereunder. BNY 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 permitted delegee or agent utilized hereunder so long as BNY acts in good faith and without negligence or willful misconduct in the selection of such delegee or agent. The Trust shall cause its officers, advisors, sponsor, distributor, legal counsel, (subject to applicable privilege) independent accountants, current administrator (if any), transfer agent, and any other service provider to cooperate with the BNY and to provide the BNY, upon request, with such information, documents and advice relating to the Trust as is within the possession or knowledge of such persons, and which, in the reasonable opinion of the BNY, is necessary in order to enable it to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled to rely in good faith, and shall be held harmless by the Trust when acting in good faith reliance, upon the foregoing, upon any Proper Instructions, as that term is defined herein in Section 6, or open advice or any documents relating to the Trust provided to BNY by any of the individuals listed on Exhibit B attached hereto or any individual believed in good faith by BNY to be an Authorized Person (each an "Authorized Person"). (e) The BNY shall not be responsible for, under any duty to inquire into, or be deemed to make any assurances with respect to the accuracy, validity or propriety of any information, documents or advice provided to the BNY by any of the aforementioned persons. The BNY 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 BNY as provided herein and shall be held harmless by each Fund when acting in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the Trust. In the event that any services performed by the BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNY which the BNY in its reasonable judgment deems reliable, the BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and ~~each Series specified on Exhibit A attached hereto~~ providing services similar or identical to same or all of the services ~~described in Schedule I, as such schedule may be amended from time to time~~provided hereunder. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of ~~each class of shares ("Class") of each 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~~Trust and in accordance with the Trust's valuation procedures actually provided to BNY, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Trust. BNY shall provide a report of such net asset value to the Trust and Authorized Participants at the respective times set forth in Schedule II, as amended from time to time. To the extent valuation of ~~Securities~~ securities or computation of a net asset value ~~of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's Board and~~ as specified in the ~~Fund~~Trust's then ~~currently~~ effective ~~Prospectus, is~~ Prospectus and valuation procedures actually provided to BNY are at any time inconsistent with any applicable laws or regulations, the ~~Fund~~ Trust shall immediately so notify BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such ~~Securities~~ securities and the Fund’s net asset ~~value of each Class of each Series'~~value, or subject to the prior approval of BNY, ~~which BNY shall not unreasonably withhold,~~ instruct BNY in writing to value ~~Securities~~ securities and compute ~~the~~ net asset value ~~of each Class of each Series'~~ 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~~ time, subject to the prior approval of BNY, instruct BNY in writing to compute the value of the ~~Securities~~ securities or ~~a Series' or Class'~~ net asset value in a manner other than as specified in this paragraph. 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 and valuation procedures of the ~~Fund~~Trust. The ~~Fund~~ Trust shall have sole authority responsibility for determining the method of valuation of ~~Securities~~ securities and the method of computing ~~each Series' and Class'~~ net asset value. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 other than those listed on Schedule 1 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), BNY 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. BNY 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 other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such persons and is reasonably believed by BNY to be necessary or appropriate in order for BNY to perform its duties hereunder. In connection with its duties hereunder, BNY 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 BNY by a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY. BNY 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 BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder. (g) ~~Each~~ The Fund shall furnish BNY with Proper Instructions as that term is defined herein in section 6, containing any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNY in the performance of its duties hereunder, including, without limitation, valuation procedures describing the amounts or written formula for calculating the amounts and times of accrual of Fund liabilities and ~~expenses and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service~~, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~. (h) ~~BNY~~ (i)BNY may apply to an officer of ~~any Fund~~ the Trust for written ~~instructions~~ Proper Instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ taken or omitted to be taken by it in good faith in accordance with such ~~instructions~~Proper Instructions. Such application ~~for instructions~~ may, at the option of BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY 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 and in accordance with the advice or opinion of ~~such~~ Trust counsel. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation except those set forth herein shall be implied against BNY in connection with this Agreement. (1) BNY, 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 by a Fund and . BNY shall have no duty or obligation to review the accuracy, validity or propriety of ~~such instructions~~Proper Instructions, explanations, information, specifications or ~~documentation~~documentation furnished by Authorized Persons , including, without limitation, evaluations of securities; valuation procedures describing 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 a ~~Fund~~Fund and may rely on the same absolutely. In the event BNY's ’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 BNY which BNY in ~~its judgment deems~~ good fxxxx xxxxx reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1m) even though BNY 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. (ml) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund~~. (n) BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it~~. BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the sameservices. BNY ~~should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. Nor~~ shall ~~BNY~~ not 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement~~. (o) BNY shall, as agent for~~ . Upon the ~~Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve~~ occurrence of any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds delay or ~~provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds~~failure, BNY shall ~~provide in hard copy, computer disc, on micro-film or other format~~ use commercially reasonable efforts to resume performance as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except soon as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, . BNY ~~shall have no liability for any failure to do so. (r) BNY hereby specifically agrees~~ further represents that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities has developed and ~~Exchange Commission thereunder~~implemented commercially reasonable business continuity and disaster recovery policies, ~~provided the same do not change BNY's standard of care~~procedures and facilities.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (Direxion Shares ETF Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of DB Commodity Services LLC, in its capacity as managing owner of each ~~Fund's Board~~ of the Funds, and the provisions of this Agreement, BNY shall provide ~~daily~~ separately to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto and (ii) the valuation and computation services ~~described in~~ listed on Schedule III attached hereto. Without limiting the foregoing, ~~as such schedule may~~ it is agreed that all services with respect to federal, state and local income tax matters, including the preparation and filing of returns and reports, shall be ~~amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each Series~~ provided by a third party retained by or on behalf of the ~~Fund~~ Funds, initially Price Waterhouse Coopers, and ~~shall value the securities held~~ not by the Fund (the "Securities") at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's Board and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset value. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial ~~records~~ records, other than those listed ~~on Schedule 1~~ in Schedules I and II attached hereto, or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of ~~a Fund's~~ prior written consent by the Trusts, on behalf of their corresponding Fund, each as applicable (which shall not be unreasonably withheld), BNY 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. BNY shall not be liable to the Trust, the Master Trust or 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or ~~wilful~~ willful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each ~~Fund~~ of the Trusts, on behalf of each of their corresponding Funds, shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons and is reasonably believed by BNY to be necessary or appropriate~~ persons, in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled to rely, and shall be held harmless by the Trusts and each ~~Fund~~ of the Funds, as applicable when acting in reliance, upon the ~~instructions~~information, documents and advice ~~or any documents~~ relating to such Fund provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator~~ any of the aforementioned persons or Proper Instructions (~~if any) and transfer agent and reasonably believed to be accurate by BNY~~as hereinafter defined). BNY shall not be liable for any loss, damage or expense resulting from or arising out of the Trusts or any failure of the Fund to cause any information, documents or advice to be provided to BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each Fund~~ The Trusts, on behalf of each of their corresponding Funds, shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. ~~Each Fund~~ The Trusts, on behalf of each of their corresponding Funds, shall also furnish BNY by Proper Instruction with bid, offer, or market values of ~~Securities~~ assets if BNY notifies such Fund that same are not available to BNY from a ~~security~~ pricing or similar service utilized, or subscribed to, by BNY which BNY in its judgment deems reliable at the time such information is required for calculations hereunder. At any time and from ~~time to~~ time-to-time, the ~~Fund~~ Trusts, on behalf of each of their corresponding Funds, also may furnish BNY by Proper Instruction with bid, offer, or market values of ~~Securities~~ assets and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular securities~~ pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the applicable Fund. (h) BNY may apply to an officer of ~~any Fund~~ the Trusts, on behalf of each of their corresponding Funds, for ~~written instructions~~ Proper Instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ taken or omitted to be taken by it in good faith in accordance with such ~~instructions~~Proper Instructions. Such application for ~~instructions~~ Proper Instructions may, at the option of BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received ~~written instructions~~ Proper Instructions in response to such application specifying the action to be taken or omitted. (i) BNY 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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~~ Proper Instructions furnished to it by ~~a Fund~~ the Trusts, on behalf of each of their corresponding Funds, and shall have no duty or obligation to review the accuracy, validity or propriety of such ~~instructions, explanations, information, specifications or documentation,~~ Proper Instructions including, without limitation, ~~evaluations of securities~~evaluations; 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~~assets; and amounts receivable or amounts payable for the sale or redemption of Fund shares effected by or on behalf of a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of ~~securities or~~ other assets by a Fund or any third party described in this ~~subsection~~ paragraph (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall ~~maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall ~~be made available upon reasonable request for inspection by officers, employees and auditors of~~ provide the Funds ~~during~~ with custodial and transfer agency services on BNY~~'s normal business hours~~’s standard terms for no additional consideration. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (PowerShares DB Multi-Sector Commodity Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each Fund's~~ the Trust’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to the Trust the valuation and computation services listed on Schedule I attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY may, pursuant to a separate agreement, provide certain sub-advisory services, but shall not provide any services relating to the management, investment advisory or sub-advisory functions of the Trust pursuant to this agreement or its terms or, as related to the maintenance of the Trust’s shareholder records. BNY shall in no event provide services relating to the distribution of shares of the Trust or other services normally performed by the Trust’s respective distributor, counsel or independent auditors. (d) Upon receipt of the Trust’s prior written consent, BNY 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 provided, however, that no such delegation of its duties or obligations hereunder shall discharge BNY from its obligations to provide or secure the provision of services hereunder. Notwithstanding the foregoing, no Trust consent shall be required for any such delegation to any other subsidiary of The Bank of New York Mellon Corporation, and BNY shall remain liable for the acts or omissions of such affiliate as if performed directly by BNY as contemplated hereunder. BNY 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 permitted delegee or agent utilized hereunder so long as BNY acts in good faith and without negligence or willful misconduct in the selection of such delegee or agent. The Trust shall cause its officers, advisors, sponsor, distributor, legal counsel, (subject to applicable privilege) independent accountants, current administrator (if any), transfer agent, and any other service provider to cooperate with the BNY and to provide the BNY, upon request, with such information, documents and advice relating to the Trust as is within the possession or knowledge of such persons, and which, in the reasonable opinion of the BNY, is necessary in order to enable it to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled to rely in good faith, and shall be held harmless by the Trust when acting in good faith reliance, upon the foregoing, upon any Proper Instructions, as that term is defined herein in Section 6, or open advice or any documents relating to the Trust provided to BNY by any of the individuals listed on Exhibit B attached hereto or any individual believed in good faith by BNY to be an Authorized Person (each an “Authorized Person”). (e) BNY shall not be responsible for, under any duty to inquire into, or be deemed to make any assurances with respect to the accuracy, validity or propriety of any information, documents or advice provided to the BNY by any of the aforementioned persons. The BNY 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 BNY as provided herein and shall be held harmless by each Fund when acting in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the Trust. In the event that any services performed by the BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNY which the BNY in its reasonable judgment deems reliable, the BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and ~~each Series specified on Exhibit A attached hereto~~ providing services similar or identical to same or all of the services ~~described in Schedule I, as such schedule may be amended from time to time~~provided hereunder. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of ~~each class of shares ("Class") of each 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~~Trust and in accordance with the Trust’s valuation procedures actually provided to BNY, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Trust. BNY shall provide a report of such net asset value to the Trust and Authorized Participants at the respective times set forth in Schedule I, as amended from time to time. To the extent valuation of ~~Securities~~ securities or computation of a net asset value ~~of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's Board and~~ as specified in the ~~Fund's~~ Trust’s then ~~currently~~ effective ~~Prospectus, is~~ Prospectus and valuation procedures actually provided to BNY are at any time inconsistent with any applicable laws or regulations, the ~~Fund~~ Trust shall ~~immediately~~ promptly so notify BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such ~~Securities~~ securities and the Fund’s net asset ~~value of each Class of each Series'~~value, or subject to the prior approval of BNY, ~~which BNY shall not unreasonably withhold,~~ instruct BNY in writing to value ~~Securities~~ securities and compute ~~the~~ net asset value ~~of each Class of each Series'~~ 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~~ time, subject to the prior approval of BNY, instruct BNY in writing to compute the value of the ~~Securities~~ securities or ~~a Series' or Class'~~ net asset value in a manner other than as specified in this paragraph. 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 and valuation procedures of the ~~Fund~~Trust. The ~~Fund~~ Trust shall have sole authority responsibility for determining the method of valuation of ~~Securities~~ securities and the method of computing ~~each Series' and Class'~~ net asset value. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 other than those listed on Schedule 1 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), BNY 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. BNY 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 other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such persons and is reasonably believed by BNY to be necessary or appropriate in order for BNY to perform its duties hereunder. In connection with its duties hereunder, BNY 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 BNY by a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY. BNY 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 BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder. (g) ~~Each~~ The Fund shall furnish BNY with Proper Instructions as that term is defined herein in section 6, containing any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNY in the performance of its duties hereunder, including, without limitation, valuation procedures describing the amounts or written formula for calculating the amounts and times of accrual of Fund liabilities and ~~expenses and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service~~, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~. (h) BNY may apply to an officer of ~~any Fund~~ the Trust for written ~~instructions~~ Proper Instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ taken or omitted to be taken by it in good faith in accordance with such ~~instructions~~Proper Instructions. Such application ~~for instructions~~ may, at the option of BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with its own external counsel or, at the Fund’s expense with approval by the Trust, with counsel to the ~~appropriate Fund or its own counsel~~Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and in accordance with the advice or opinion of such counsel. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I attached hereto, BNY 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and Schedule I attached hereto, and no covenant or obligation except those set forth herein shall be implied against BNY in connection with this Agreement. (1) BNY, 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 by a Fund and . BNY shall have no duty or obligation to review the accuracy, validity or propriety of ~~such instructions~~Proper Instructions, explanations, information, specifications or ~~documentation~~documentation furnished by Authorized Persons , including, without limitation, evaluations of securities; valuation procedures describing 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 a ~~Fund~~Fund and may rely on the same absolutely. In the event BNY's ’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 BNY which BNY in ~~its judgment deems~~ good fxxxx xxxxx reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1m) even though BNY 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. (ml) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund~~. (n) BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it~~. BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the sameservices. BNY ~~should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. Nor~~ shall ~~BNY~~ not 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement~~. (o) BNY shall, as agent for~~ . Upon the ~~Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve~~ occurrence of any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds delay or ~~provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds~~failure, BNY shall ~~provide in hard copy, computer disc, on micro-film or other format~~ use commercially reasonable efforts to resume performance as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except soon as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, . BNY ~~shall have no liability for any failure to do so. (r) BNY hereby specifically agrees~~ further represents that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities has developed and ~~Exchange Commission thereunder~~implemented commercially reasonable business continuity and disaster recovery policies, ~~provided the same do not change BNY's standard of care~~procedures and facilities.

Appears in 1 contract

Samples: Fund Accounting Agreement (Direxion Shares ETF Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each Fund~~the Trust's Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to ~~each Fund and each Series specified~~ the Trust (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY ~~shall not~~ may, pursuant to a separate agreement, provide ~~any~~ services relating to the ~~management, investment advisory or~~ sub-advisory functions of ~~any Fund~~the Trust or maintenance of the Trust's shareholder records, but shall have no duty or obligation to provide such services under this Agreement. BNY shall in no event provide services relating to distribution of shares of ~~any Fund, maintenance of any Fund's financial records other than those listed on Schedule 1~~ the Trust or other services normally performed by the ~~Funds'~~ Trust's respective counsel or independent auditors. (d) Upon receipt of ~~a Fund~~the Trust's prior written ~~consent (which shall not be unreasonably withheld)~~consent, BNY 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; provided, however, that no such delegation of its duties and obligations hereunder shall discharge BNY from its obligations hereunder. Notwithstanding the foregoing, no ~~Fund~~ Trust consent shall be required for any such delegation to any other subsidiary or affiliate of ~~The Bank of New York Company, Inc. BNY 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 other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., and BNY hereunder shall be ~~deemed to have committed~~ as liable for the acts or omissions of any ~~act~~ such subsidiary or affiliate as if such acts or omission ~~of such delegee~~were its own. (e) ~~Each Fund~~ The Trust shall cause its officers, advisors, sponsor, distributor, legal ~~counsel~~counsel (subject to any applicable privileges), independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to ~~such Fund~~ the Trust as is within the possession or knowledge of such ~~persons~~ persons, and which, in the reasonable opinion of BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled to reasonably rely, and shall be held harmless by ~~each Fund~~ the Trust when acting in reasonable reliance, upon the ~~instructions~~foregoing, upon any Proper Instructions, as that term is defined herein in Section 6, or open advice or any documents relating to ~~such Fund~~ the Trust provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and~~ any of the individuals listed on Exhibit B attached hereto or any individual reasonably believed by BNY to be accurate by BNY. BNY 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 BNY as provided hereinan Authorized Person (each an "Authorized Person"). All fees or costs charged by such persons shall be borne by the ~~appropriate Fund~~Trust. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder. (g) ~~Each~~ Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of the Fund and shall value the securities held by the Fund at such times and dates and in the manner specified in the then-effective Prospectus of the Trust and in accordance with the Trust's valuation procedures actually provided to BNY, except that, notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Trust. BNY shall provide a report of such net asset value to the Trust and Authorized Participants at the respective times set forth in Schedule II, as amended from time to time. To the extent valuation of securities or computation of a net asset value as specified in the Trust's then-effective Prospectus and valuation procedures actually provided to BNY are at any time inconsistent with any applicable laws or regulations, the Trust or BNY, as applicable shall immediately so notify the other party in writing and thereafter BNY shall value securities and/or compute net asset value or other computations consistent with the Trust's Prospectus and valuation procedures actually provided to BNY, as they may be amended, which amendments shall constitute a representation by the Trust (which representation shall be deemed to be continuing) that the same is consistent with all applicable laws and regulations and with its amended Prospectus or valuation procedures. The Trust may also from time to time instruct BNY in writing to compute the value of the securities or net asset value in a manner other than as specified in this paragraph. By giving such instruction, the Trust shall be deemed to have represented that such instruction is consistent with all applicable laws and regulations and the then-effective Prospectus and valuation procedures of the Trust. The Trust shall have sole authority and responsibility for determining the method of valuation of securities and the method of computing net asset value. (h) The Trust shall furnish BNY with Proper Instructions, as that term is defined herein in Section 6, containing any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNY in the performance of its duties hereunder, including, without limitation, valuation procedures describing the amounts or written formula for calculating the amounts and times of accrual of ~~Fund~~ Trust liabilities and ~~expenses and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY shall not be required to include as ~~Fund~~ Trust liabilities and expenses, nor as a reduction of net asset value, any accrual for any federal, state, or foreign income taxes unless the ~~Fund~~ Trust shall have specified to BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. ~~Each Fund~~ The Trust shall also furnish BNY with bid, offer, or market values of ~~Securities~~ securities if BNY notifies ~~such Fund~~ the Trust that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY ~~which~~ that BNY 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~~ Trust also may furnish BNY with bid, offer, or market values of ~~Securities~~ securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service~~, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~. (hi) BNY may apply to an officer of ~~any Fund~~ the Trust for written ~~instructions~~ Proper Instructions, as that term is defined herein in Section 6, with respect to any matter arising in connection with BNY's performance hereunder for ~~such Fund~~the Trust, and BNY shall not be liable for any action ~~reasonably~~ taken or omitted to be taken by it in good faith in accordance with such ~~instructions~~Proper Instructions. Such application ~~for instructions~~ may, at the option of BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 (provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions) unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ij) BNY may consult with counsel to the ~~appropriate Fund or its own counsel,~~ Trust at the Trust's expense with respect to any matter arising in connection with the services to be performed by BNY under this Agreement and BNY shall be fully protected with respect to anything done or omitted by it in good faith and in accordance with the advice or opinion of ~~such~~ Trust counsel. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (jk) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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~~ the Trust of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, ~~a Fund,~~ the Trust; (ii) the taxable nature or effect on ~~a Fund~~ the Trust 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~~ the Trust to its shareholders; or (iv) the effect under any federal, state, or foreign income tax laws of ~~a Fund~~ the Trust making or not making any distribution or dividend payment, or any election with respect thereto. (kl) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or ~~obligation~~ obligation, except for those set forth herein, shall be implied against BNY in connection with this Agreement. (1m) BNY, 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 by a Fund and BNY shall have no duty or obligation to review the accuracy, validity or propriety of ~~such instructions~~Proper Instructions, explanations, information, specifications or ~~documentation,~~ documentation furnished by Authorized Persons including, without limitation, : (i) evaluations of securities; (ii) valuation procedures describing the amounts or formula for calculating the amounts and times of accrual of ~~Series'~~ Fund liabilities and expenses; (iii) the amounts receivable and the amounts payable on the sale or purchase of ~~Securities~~securities; and (iv) amounts receivable or amounts payable for the sale or redemption of Fund shares effected by or on behalf of ~~a Fund~~the Trust. In the event BNY'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 BNY ~~which BNY~~ that BNY, in its ~~judgment~~ reasonable judgment, deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by ~~a Fund~~ the Trust or any third party described in this ~~subsection~~ sub-section (1m) even though ~~BNY~~ BNY, in performing services similar to the services provided pursuant to this Agreement for ~~others~~ others, may receive different valuations of the same or different securities of the same issuers. (mn) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to ~~a Fund~~ the Trust is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such Fund~~the Trust. (no) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY shall not be responsible for delays or errors ~~which~~ that 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, or communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the sameservices. BNY ~~should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. Nor~~ shall ~~BNY~~ not 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement~~. (o) BNY shall, as agent for~~ . Upon the ~~Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve~~ occurrence of any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds delay or ~~provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds~~failure, BNY shall ~~provide in hard copy, computer disc, on micro-film or other format~~ use commercially reasonable efforts to resume performance as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except soon as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, . BNY ~~shall have no liability for any failure to do so. (r) BNY hereby specifically agrees~~ further represents that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities has developed and ~~Exchange Commission thereunder~~implemented commercially reasonable business continuity and disaster recovery policies, ~~provided the same do not change BNY's standard of care~~procedures and facilities.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (RevenueShares ETF Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each Fund's Board~~ the Managing Owner and the provisions of this Agreement, BNY shall provide ~~daily~~ separately to each Fund (i) the administrative services set forth on Schedule I attached hereto, and each Series specified on Exhibit A attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial ~~records~~ records, other than those listed ~~on Schedule 1~~ in Schedules I and II attached hereto, or other services normally performed by the ~~Funds'~~ Funds respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY may delegate any of its duties and obligations hereunder to such Fund to any delegee or agent whenever and on such terms and conditions as it deems necessary or appropriate. Notwithstanding the foregoing, no ~~Fund~~ Fund’s consent shall be required for any such delegation to any ~~other subsidiary~~ BNY Affiliate notwithstanding the domicile of ~~The Bank of New York Company~~such BNY Affiliate, ~~Inc.~~ and BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or ~~wilful~~ willful misconduct in the selection or supervision of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company~~, ~~Inc.,~~ provided that BNY shall be ~~deemed~~ liable for the acts or omissions of any BNY Affiliate to ~~have~~ the same extent it would be liable under the terms hereof had it committed ~~any~~ such act or omission of and not delegated the same, and BNY shall notify each affected Fund upon any such ~~delegee~~delegation to a BNY Affiliate. (e) ~~Each~~ To the extent permitted by applicable laws and provided that such information is not subject to any confidentiality obligation by the relevant party, each Fund shall make commercially reasonable efforts to cause its officers, managers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon reasonable request, with such information, documents and advice relating to ~~such~~ that Fund as is within the possession or knowledge of such persons ~~and is reasonably believed by BNY to be necessary or appropriate~~ in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled reasonably to rely, and shall be held harmless by each Fund when acting in reliance, upon the instructions, advice or any documents relating to ~~such~~ a Fund provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. BNY shall not be liable for any loss, damage or expense resulting from or arising out of the failure of ~~the~~ a Fund to cause any information, documents or advice to be provided to BNY as provided herein, provided BNY acts without negligence or willful misconduct. All fees or costs charged by such persons shall be borne by the ~~appropriate~~ relevant Fund. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of or BNY Affiliate or any officer or employee thereof from acting for or with any third ~~parties,~~ parties and providing services similar or identical to some or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Fund. (h) BNY may apply to ~~an officer of any Fund~~ the Managing Owner for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ taken or ~~omitted to be~~ not taken by it in good faith in accordance with such instructions. Such application for instructions may, at the option of BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to ~~the appropriate~~ a 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 after consultation with the Managing Owner in accordance with the advice or opinion of such counsel. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this ~~Agreement~~ Agreement, but to the extent expressly otherwise provided in Schedules I or ~~Schedule I~~ II attached hereto, BNY shall have no duty or obligation to with respect to, including, without limitation, any duty or obligation to determine, or advise or notify ~~any~~ a Fund of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, a such Fund, (ii) the taxable nature or effect on a such 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~~ other amount paid, payable or deemed paid, by a such Fund to its shareholders; or (iv) the effect under any federal, state, foreign, or ~~foreign~~ other applicable income tax laws of a such Fund making or not making any distribution or ~~dividend~~ other payment, or any election with respect thereto. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and Schedule I attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1) BNY, in performing the services required of it under the terms of this Agreement, shall be entitled reasonably to rely fully on the accuracy and validity of any and all instructions, explanations, information, specifications and documentation furnished to it by a 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'~~ a Fund’s 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 a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, or from a broker-dealer selected by BNY, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ sub-section (1k) even though BNY 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. (ml) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (nm) Subject to the provisions of this sub-section (m), BNY shall ~~maintain~~ compute the net asset value per share of each Fund and shall value the Securities held by such ~~back-up system(s),~~ Fund at such times and ~~disaster recovery plan(s), as are required by its regulators~~ dates and ~~all laws applicable to it. BNY shall not be responsible for delays or errors which occur by reason of circumstances beyond its control~~ in the ~~performance~~ manner specified in the then currently effective Prospectus of ~~its duties under this Agreement~~such Fund, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, ~~labor difficulties within~~ those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely for each Fund. To the extent valuation of Securities or ~~without~~ computation of a Fund’s net asset value as specified in the Fund’s then currently effective Prospectus is at any time inconsistent with any applicable laws or regulations, such Fund shall immediately so notify BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and net asset value, or subject to the prior approval of BNY, ~~mechanical breakdowns~~instruct BNY in writing to value Securities and compute net asset value in a manner which such Fund then represents in writing to be consistent with all applicable laws and regulations. Such Fund may also from time to time, ~~flood~~ subject to the prior approval of BNY, instruct BNY in writing to compute the value of the Securities or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) net asset value in a manner other than as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. Nor shall BNY be responsible for delays or failures to supply the information or services specified in this ~~Agreement where~~ sub-section (m). By giving such ~~delays or failures are caused by~~ instruction, such Fund shall be deemed to have represented that such instruction is consistent with all applicable laws and regulations and its then currently effective Prospectus. Each Fund shall have sole responsibility for determining the ~~failure~~ method of ~~any person(s) other than BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in~~ valuation of Securities and the ~~performance~~ method of ~~its duties under this Agreement~~computing net asset value. (on) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no ~~liability for any failure to do so. (r)~~ duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY ~~hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds~~ in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of carethis Agreement.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (BNP Paribas L/S Commodities Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's ’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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.~~ Mellon Corporation. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with the BNY and to provide the BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of the BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ The BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to the BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. The BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by each Fund when acting in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by the BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNY which the BNY in its reasonable judgment deems reliable, the BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each~~ Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of the Fund and shall value the securities held by the Fund at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Fund. BNY shall provide a report of such net value to the Fund and Authorized Participants at the respective times set forth in Schedule II, as amended from time to time. To the extent valuation of securities or computation of a 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such securities and the Fund’s net asset value, or subject to the prior approval of BNY, instruct BNY in writing to value securities and compute 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 BNY, instruct BNY in writing to compute the value of the securities or net asset value in a manner other than as specified in this paragraph. 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 net asset value. (h) The Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service~~, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~. (hi) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ij) BNY may consult with counsel to the appropriate ~~Fund or its own counsel~~Fund, 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (jk) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (kl) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1m) BNY, 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 by a 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 a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1m) even though BNY 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. (mn) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (no) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (TXF Funds Inc)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each Fund's~~ the Trusts’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each ~~Fund and each~~ Series ~~specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY shall not provide any services relating to the management, investment advisory or sub-advisory functions of any ~~Fund~~Series, distribution of shares of any ~~Fund~~Series, maintenance of any ~~Fund's~~ Series’ financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the ~~Funds'~~ Trust’s respective counsel or independent auditors. (d) Upon receipt of ~~a Fund's~~ the Trust’s prior written consent (which shall not be unreasonably withheld), BNY 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~~ Trust consent shall be required for any such delegation to any other subsidiary of The Bank of New York ~~Company, Inc.~~ Mellon Corporation. BNY shall not be liable to the Trust, on behalf of any ~~Fund~~ Seires, 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) ~~Each Fund~~ The Trust, on behalf of each Series, shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with the BNY and to provide the BNY, upon request, with such information, documents and advice relating to such ~~Fund~~ Series as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of the BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ The BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to the BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. The BNY shall not be liable for any loss, damage or expense resulting from or arising out of the failure of the ~~Fund~~ Trust, on behalf of any Series, to cause any information, documents or advice to be provided to the BNY as provided ~~herein~~herein and shall be held harmless by the Trust, on behalf of each Series, when acting in reliance upon such information, documents or advice relating to such Series. All fees or costs charged by such persons shall be borne by the appropriate ~~Fund~~Series. In the event that any services performed by the BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNY which the BNY in its reasonable judgment deems reliable, the BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each Fund~~ The Trust, on behalf of each Series, shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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~~ Series liabilities and ~~expenses and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY shall not be required to include as ~~Fund~~ Series liabilities and expenses, nor as a reduction of net asset value, any accrual for any federal, state, or foreign income taxes unless the ~~Fund~~ Trust, on behalf of a Series, shall have specified to BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. ~~Each Fund~~ The Trust, on behalf of each Series, shall also furnish BNY with bid, offer, or market values of ~~Securities~~ securities if BNY notifies ~~such Fund~~ the Trust that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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~~ Trust, on behalf of a Series, also may furnish BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated~~ solely for the applicable Series. BNY shall furnish the Trust with any information that BNY may have available, which may be relevant to ~~maintain a subscription or access to at least one securities pricing or similar service~~the valuation of securities. (h) BNY may apply to an officer or duly authorized agent of ~~any Fund~~ the Trust for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for ~~such Fund~~any Series, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the ~~appropriate Fund~~ Trust, on behalf of the applicable Series, or its own counsel, at such Series’ 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. , provided, that, BNY ~~shall provide prompt notification~~ provides notice to the ~~appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions~~Trust, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent on behalf of the ~~appropriate fund~~applicable Series, of such counsel’s advice. (j) Notwithstanding any other provision contained in this Agreement or Schedule I attached hereto, BNY shall have no duty or obligation 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1k) BNY, 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 by ~~a Fund~~ the Trust 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~~securities; and amounts receivable or amounts payable for the sale or redemption of ~~Fund~~ Series shares effected by or on behalf of a ~~Fund~~Series. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by the Trust, on behalf of a ~~Fund~~ Series, or any third party described in this ~~subsection~~ (1k) even though BNY 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. Notwithstanding anything to the contrary in this (k), in the event that others receive different valuations of the same or different securities of the same issuers and the discrepancies are greater than _______, BNY shall evaluate or make an inquiry regarding the propriety of the valuation. (ml) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a ~~Fund~~ Series is or will be actually paid, but will accrue such interest until otherwise instructed by the Trust, on behalf of such ~~Fund~~Series. (nm) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services ~~provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not,~~ or circumstances that ~~such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts~~ are not reasonably expected to ~~resume performance as soon as practicable under the circumstances~~be covered in a standard business continuity policy. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (Destra Investment Trust)

Duties and Obligations of BNY. (a) BNY represents and warrants that it is providing the services contemplated hereunder 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. (b) Subject to the direction and control of each Fund's ’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (bc) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (cd) BNY 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 ’s financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the Funds' ’ respective counsel or independent auditors. (de) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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.~~ Mellon Corporation. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection and retention of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (ef) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with the BNY and to provide the BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of the BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ The BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to the BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. The BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by each Fund when acting in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by the BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNY which the BNY in its reasonable judgment deems reliable, the BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (fg) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (gh) Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of the Fund and shall value the securities held by the Fund at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Fund. BNY shall provide a report of such net asset value to the Fund at the time set forth in Schedule II, as amended upon mutual agreement of the parties from time to time. To the extent valuation of securities or computation of a 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such securities and the Fund’s net asset value, or subject to the prior approval of BNY, instruct BNY in writing to value securities and compute 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 BNY, instruct BNY in writing to compute the value of the securities or net asset value in a manner other than as specified in this paragraph. 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 net asset value. (i) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service.~~ solely for the Fund. (h‘j) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ik) BNY may consult with counsel to the appropriate Fund (at the Fund’s expense) or its own counsel, (at BNY’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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (jl) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (km) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1n) BNY, 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 by a 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 a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1) even though BNY 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. (mo) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (np) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) ~~services provided~~ services; provided, however that BNY ~~is maintaining such back-up system(s) and disaster recovery plan(s) as described above~~shall maintain agreements making reasonable provisions for emergency use of electronic data processing equipment, orin accordance with applicable regulatory requirements. In the event of equipment failures, ~~provided if it does not~~BNY shall, ~~that such delays and errors would have occurred even if it had maintained~~ at no additional expense to the ~~same. BNY should use commercially~~ Fund, take reasonable ~~best efforts~~ steps to ~~resume performance as soon as practicable under the circumstances~~minimize service interruptions. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (oq) ~~BNY shall~~The books and records pertaining to the Fund, ~~as agent for~~ which are in the ~~Funds~~possession or under the control of BNY, ~~maintain and keep current~~ shall be the ~~books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2~~ property of the ~~General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended~~Fund. Such ~~books, accounts~~ books and ~~other documents~~ records shall be ~~made available upon reasonable request for inspection~~ prepared and maintained as required by the 1940 Act (and the rules thereunder) and such other applicable Federal Securities Laws, rules and regulations. The Fund and its duly authorized officers, employees and ~~auditors~~ agents and the staff of the ~~Funds~~ SEC shall have access to such books and records at all times during BNY's ’s normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon the reasonable request of the ~~Funds~~Fund, ~~BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in~~ copies of any such ~~delivery which are maintained~~ books and records shall be provided by BNY ~~on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining~~ to the ~~business of~~ Fund in the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized form requested by the ~~Funds or as~~ Fund, at the Fund’s expense. Any such books and records may be ~~required by law,~~ maintained in the form of electronic media and ~~shall not~~ stored on any magnetic disk or tape or similar recording method. No records will be ~~used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains~~ destroyed without the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide Fund’s written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do soconsent. (r) BNY ~~hereby specifically agrees~~ shall cooperate with, the Fund’s independent public accountants and shall provide account analyses, fiscal year summaries, and other audit-related schedules with respect to the Fund. BNY shall take all reasonable action in the performance of its duties under this Agreement to assure that ~~it will provide~~ any ~~sub-certifications reasonably~~ requested by or necessary information is made available to such accountants for the ~~Funds in connection with any certification~~ expression of their opinion as to the financial statements of the Fund or as may otherwise be required by the ~~Xxxxxxxx-Xxxxx Act of 2002~~ Federal Securities Laws or ~~any rules or regulations promulgated by~~ the ~~Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care~~Fund.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (GLG Investment Series Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto and (ii) the valuation, accounting and computation services ~~described in~~ listed on Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's Board and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valueII attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and ~~personnel~~personnel necessary for the performance of its duties hereunder. (c) BNY shall not provide any services under this Agreement 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 ~~other than those listed~~ (except to the extent such financial records are generated by BNY in the course of the performance of its duties hereunder, in which case BNY will preserve and retain such records on ~~Schedule 1~~ behalf of the Fund in accordance with BNY's record retention policies and procedures) 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), BNY 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.~~ Inc.. Notwithstanding any such delegation, and irrespective of whether or not the consent of the Funds is required (or has been obtained) for such delegation, BNY shall be responsible for the reasonable selection of any such delegee or agent, and shall not be discharged of its duties to provide the delegated services. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by each Fund when acting in good faith and in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by BNY which BNY in good faith and in its reasonable judgment deems reliable, BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of the Fund and shall value the securities held by the Fund at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Fund. BNY shall provide a report of such net asset value to the Fund and Authorized Participants at the respective times set forth in Schedule II, as amended from time to time. To the extent valuation of securities or computation of a 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such securities and the Fund's net asset value, or subject to the prior approval of BNY, instruct BNY in writing to value securities and compute 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 BNY, instruct BNY in writing to compute the value of the securities or net asset value in a manner other than as specified in this paragraph. 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 net asset value. (h) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service~~, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~. (hi) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ij) BNY may consult with counsel to the appropriate Fund at such Fund's expense, or its own ~~counsel~~counsel at its own expense, provided that such counsel has been approved by the Fund, where notice from BNY as to its selected counsel which is not objected to in writing by the Fund within one business day shall constitute the Fund's approval, and BNY 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (jk) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (kl) With respect to the services contemplated hereunder, BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto~~, and no covenant or obligation shall be implied against BNY in connection with this Agreement~~. (1m) BNY, 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 by a 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~~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 a Fund. In the event BNY's computations hereunder rely, in whole or in part, upon information, including, without limitation, bid, offer or market values of ~~securities~~ Securities or other assets, or accruals of interest or earnings thereon, from a pricing or similar service utilized, or subscribed to, by BNY which BNY in its judgment deems reliable, and which is consistent with the pricing policies as adopted by the Board and provided to BNY, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1m) even though BNY 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. (mn) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (no) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 ~~BNY~~ BNY, its employees or or its affiliates, to supply any instructions, explanations, information, specifications or documentation deemed in good faith to be necessary by BNY in the performance of its duties under this Agreement~~. (o)~~ . BNY ~~shall,~~ will in such instances as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations promptly as is reasonable under the ~~Investment Company Act~~ circumstances notify the Fund of ~~1940, as~~ such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hoursfailures. (p) ~~All~~ BNY shall keep confidential all books and records relating to the Funds and its shareholders, except when (i) disclosure is required by law, (ii) BNY is advised by counsel that it may incur liability for failure to make a disclosure, (iii) BNY is requested to divulge such information by a court, governmental agency or entity or by a self-regulatory organization registered under the Securities Exchange Act of 1934, or (iv) as requested or authorized by Funds or the Advisor (including pursuant to this Agreement or its policies and procedures). BNY shall provide the Funds with reasonable advance notice of disclosure pursuant to items (i) - (iii) of the previous sentence, to the extent reasonably practicable and permissible by law. BNY shall promptly upon the Funds' demand, turn over to the Funds and cease to retain the files, records and documents created and maintained ~~and preserved~~ by ~~BNY~~ it pursuant to this Agreement which are no longer needed by it in the ~~Funds are required to maintain and preserve~~ performance of its services or in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Fundsrelevant law, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer discregulation, or ~~are otherwise maintained~~bank policy. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (Realty Funds, Inc.)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's ’s Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial records ~~other than those listed on Schedule 1~~ not required under this Agreement or other services ~~normally~~ performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written ~~consent (~~consent, which shall not be unreasonably ~~withheld~~withheld as related to any (“BNY Affiliate”), BNY 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.~~ BNY 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 approved delegee or agent utilized hereunder ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company~~, ~~Inc.,~~ and provided that BNY shall be ~~deemed to have committed~~ liable for the acts or omissions of any ~~act~~ BNY Affiliate as it would be for its own acts or ~~omission of such delegee~~ommissions. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. BNY 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~~ advice, that it has knowledge of, or should reasonably have knowledge of, to be provided to BNY as provided ~~herein~~herein and shall be held harmless by each Fund when acting in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the appropriate Fund. In the event that any services performed by BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by BNY which BNY in its reasonable judgment deems reliable, BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information; provided, that, BNY takes all reasonable steps to notify third party service providers of the nature and extent to which BNY’s services depend on information provided by such third party service providers. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each~~ Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of the Fund and shall value the securities held by the Fund at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Fund. BNY shall provide a report of such net value to the Fund and Authorized Participants at the respective times set forth in Schedule II, as amended from time to time. To the extent valuation of securities or computation of a 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such securities and the Fund’s net asset value, or subject to the prior approval of BNY, instruct BNY in writing to value securities and compute 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 BNY, instruct BNY in writing to compute the value of the securities or net asset value in a manner other than as specified in this paragraph. 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 net asset value. (h) The Fund or its delegates shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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~~ or its delegates have specified to BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service~~, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~. (hi) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ij) BNY may consult ~~with~~ Fund counsel on matters relating to the ~~appropriate Fund or~~ Fund, at such Fund’s expense, our other nationally recognized outside counsel at its own ~~counsel~~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. ; provided that BNY ~~shall provide prompt notification to the appropriate Fund in the event that it acts upon advice~~ will responsible for all direct costs, expenses, damages, liabilities or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense claims arising out of BNY's ’s own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I attached hereto, BNY shall have no duty or obligation 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 its 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 theretonegligence as contemplated hereunder. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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 by a Fund or its delegates 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 a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such ~~Fund~~Fund or its delegates. (n) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) ~~services~~ services, provided that BNY has established and is maintaining ~~such~~ a disaster recovery plan and back-up ~~system(s) and disaster recovery plan(s) as described above~~system, ~~or, provided~~ or if ~~it does~~ not, that such ~~delays and errors~~ delay or error would have occurred even if it BNY had ~~maintained~~ established and was maintaining the ~~same~~disaster recovery plan and back-up system. Upon the occurrence of any such delay or error BNY ~~should~~ shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. ~~Nor~~ BNY shall ~~BNY~~ not 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 BNY and its delegates to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (Old Mutual Global Shares Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of DB Commodity Services LLC, in its capacity as managing owner of each ~~Fund's Board~~ of the Funds, and the provisions of this Agreement, BNY shall provide ~~daily~~ separately to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto and (ii) the valuation and computation services ~~described in~~ listed on Schedule III attached hereto. Without limiting the foregoing, ~~as such schedule may~~ it is agreed that all services with respect to federal, state and local income tax matters, including the preparation and filing of returns and reports, shall be ~~amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each Series~~ provided by a third party retained by or on behalf of the ~~Fund~~ Funds, initially Price Waterhouse Coopers, and ~~shall value the securities held~~ not by the Fund (the "Securities") at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's Board and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valueBank. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial ~~records~~ records, other than those listed ~~on Schedule 1~~ in Schedules I and II attached hereto, or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or ~~wilful~~ willful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons and is reasonably believed by BNY to be necessary or appropriate~~ persons, in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled to rely, and shall be held harmless by each Fund when acting in reliance, upon the ~~instructions~~information, documents and advice ~~or any documents~~ relating to such Fund provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator~~ any of the aforementioned persons or Proper Instructions (~~if any) and transfer agent and reasonably believed to be accurate by BNY~~as hereinafter defined). BNY 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 BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY by Proper Instruction with bid, offer, or market values of ~~Securities~~ assets if BNY notifies such Fund that same are not available to BNY from a ~~security~~ pricing or similar service utilized, or subscribed to, by BNY which BNY in its judgment deems reliable at the time such information is required for calculations hereunder. At any time and from ~~time to~~ time-to-time, the Fund also may furnish BNY by Proper Instruction with bid, offer, or market values of ~~Securities~~ assets and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular securities~~ pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Fund. (h) BNY may apply to an officer of any Fund for ~~written instructions~~ Proper Instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ taken or omitted to be taken by it in good faith in accordance with such ~~instructions~~Proper Instructions. Such application for ~~instructions~~ Proper Instructions may, at the option of BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received ~~written instructions~~ Proper Instructions in response to such application specifying the action to be taken or omitted. (i) BNY 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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~~ Proper Instructions furnished to it by a Fund and shall have no duty or obligation to review the accuracy, validity or propriety of such ~~instructions, explanations, information, specifications or documentation,~~ Proper Instructions including, without limitation, ~~evaluations of securities~~evaluations; 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~~assets; and amounts receivable or amounts payable for the sale or redemption of Fund shares effected by or on behalf of a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of ~~securities or~~ other assets by a Fund or any third party described in this ~~subsection~~ (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall ~~maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall ~~be made available upon reasonable request for inspection by officers, employees and auditors of~~ provide the Funds ~~during~~ with custodial and transfer agency services on BNY~~'s normal business hours~~’s standard terms for no additional consideration. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (DB Multi-Sector Commodity Master Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's ’s Board and the provisions of this Agreement, . BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial records ~~other than those listed on Schedule 1~~ or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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.~~ Mellon Corporation. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with the BNY and to provide the BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of the BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ The BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to the BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. The BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by each Fund when acting in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the appropriate Fund~~. (f)~~ . In the event that any services performed by the BNY hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNY which the BNY in its reasonable judgment deems reliable, the BNY shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each~~ Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of the Fund and shall value the securities held by the Fund at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Fund. BNY shall provide a report of such net value to the Fund and Authorized Participants at the respective times set forth in Schedule II, as amended from time to time. To the extent valuation of securities or computation of a 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such securities and the Fund’s net asset value, or subject to the prior approval of BNY, instruct BNY in writing to value securities and compute 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 BNY, instruct BNY in writing to compute the value of the securities or net asset value in a manner other than as specified in this paragraph. 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 net asset value. (h) The Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service~~, but shall be required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~. (hi) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ij) BNY may consult with counsel to the appropriate ~~Fund or its own counsel~~Fund, 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (jk) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (kl) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1m) BNY, 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 by a 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 a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1m) even though BNY 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. (mn) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (no) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (Ook Inc)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each Fund's Board~~ FT Services and the provisions of this Agreement, BNY shall provide ~~daily~~ to ~~each Fund and each Series specified~~ the Funds (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial ~~records other than those listed on Schedule 1~~ records, except to the extent specifically set forth herein, or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of ~~a Fund's~~ FT Services’ prior written ~~consent (which shall not be unreasonably withheld)~~consent, BNY 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~~ BNY may delegate any ~~such delegation~~ of its duties and obligations hereunder to any other subsidiary of The Bank of New York ~~Company, Inc.~~ Mellon Corporation and it will use commercially reasonable efforts to provide advance written notice to FT Services of its so doing. BNY shall ~~not~~ be liable to FT Services and any Fund for any loss or damage arising out of, or in connection with, the actions or omissions to act of any affiliated delegee or agent utilized hereunder ~~other than a delegee~~ to the same extent as it would be liable hereunder if it had taken or ~~agent which is a subsidiary or the Bank of New York Company, Inc so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of~~ omitted such ~~delegee or agent~~action itself. ~~With~~ BNY’s liability with respect to any ~~delegee~~ non-affiliated delegate or agent ~~which is a subsidiary of The Bank of New York Company, Inc., BNY~~ approved by FT Services shall be ~~deemed~~ limited to ~~have committed any act~~ such instances where BNY failed to reasonably select, monitor and retain such delegate or ~~omission of such delegee~~agent. (e) ~~Each Fund~~ FT Services shall cause ~~its~~ the Trust’s officers, advisors, sponsor, distributor, legal ~~counsel~~counsel (subject to any applicable privileges), independent accountants, current administrator (if any) ), transfer agent, and ~~transfer agent~~ any other service provider to cooperate with BNY and to provide BNY, upon reasonable request, with such information, documents and advice relating to ~~such Fund~~ the Trust as is within the possession or knowledge of such ~~persons~~ persons, and which, in the reasonable opinion of BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. In connection with its duties hereunder, BNY 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 BNY by a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY. BNY shall not be ~~liable for~~ responsible for, under any ~~loss~~duty to inquire into, ~~damage~~ or ~~expense resulting from~~ be deemed to make any assurances with respect to the accuracy, validity or ~~arising out~~ propriety of ~~the failure of the Fund to cause~~ any information, documents or advice ~~to be~~ provided to BNY ~~as provided herein. All fees or costs charged~~ by ~~such persons~~ any of the aforementioned persons, and BNY shall be ~~borne~~ held harmless by FT Services when acting in good faith reliance upon such information, documents or advice relating to the ~~appropriate Fund~~Trust. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to some or all of the services provided hereunder; provided, however, that notwithstanding this paragraph BNY may not use FT Services’, the Funds’ or any of their affiliates’ proprietary information, know-how or methodologies in providing such services to such other third parties. (g) ~~Each~~ Subject to the provisions of this Agreement, BNY shall compute the net asset value per share (“NAV”) of a Fund and shall ~~furnish~~ value the securities held by the Fund at such times and dates and in the manner specified in the then-effective Prospectus of the Fund and in accordance with the Trust’s valuation procedures actually provided to BNY, except that, notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Trust. BNY shall provide a report of such NAV to FT Services, the Trust and Authorized Participants at the respective times set forth in Schedule II, as amended from time to time. To the extent valuation of securities or computation of a NAV as specified in the Fund’s then-effective Prospectus and valuation procedures actually provided to BNY are at any time inconsistent with FT Services’ or the Trust’s reasonable interpretation of any applicable laws or regulations, FT Services shall promptly so notify BNY in writing and thereafter BNY shall value securities and/or compute NAV or other computations consistent with the Fund’s Prospectus and valuation procedures actually provided to BNY, as they may be amended, which amendments shall constitute a representation by FT Services (which representation shall be deemed to be continuing) that the same is consistent with all applicable laws and regulations and with the Trust’s amended Prospectus or valuation procedures. FT Services may also from time to time instruct BNY in writing to compute the value of the securities or NAV in a manner other than as specified in this paragraph. By giving such instruction, FT Services shall be deemed to have represented that such instruction is consistent with all applicable laws and regulations and the then-effective Prospectus of the Fund and valuation procedures of the Trust. The Trust shall have sole authority and responsibility for determining the method of valuation of securities and the method of computing NAV. (h) FT Services shall furnish, or cause the Trust to furnish, BNY with, and BNY shall comply with, any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by ~~BNY~~ BNY, FT Services or the Trust in the performance of ~~its~~ BNY’s duties hereunder, including, without limitation, valuation procedures describing the amounts or written formula for calculating the amounts and times of accrual of Fund liabilities and ~~expenses and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY shall not be required to include as Fund liabilities and expenses, nor as a reduction of ~~net asset value~~NAV, any accrual for any federal, state, or foreign income taxes unless FT Services or the ~~Fund~~ Trust shall have specified to BNY the precise amount of the same to be included in liabilities and expenses or used to reduce ~~net asset value~~NAV; provided, however, that (i) FT Services or the Trust may specify the precise amount in the form of rules to be applied by BNY (e.g., applicable tax rates) and (ii) with respect to foreign securities, BNY will book minimum withholding taxes on interest, dividends and gains. ~~Each Fund~~ FT Services shall also furnish BNY with bid, offer, or market values of ~~Securities~~ securities if BNY notifies ~~such Fund~~ FT Services that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY ~~which~~ that BNY 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~~ FT Services also may furnish BNY with bid, offer, or market values of ~~Securities~~ securities and instruct BNY to use such information in its calculations hereunder. BNY shall ~~at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any~~ use the particular securities pricing or similar ~~service~~services as may be specified by FT Services, ~~but shall~~ or by the Trust in the Trust’s pricing procedures as they may be ~~required and obligated~~ amended from time to ~~maintain a subscription or access~~ time, provided that BNY has existing subscriptions to ~~at least one securities pricing or similar service~~facilitate the use of such services. (hi) BNY may apply to an a duly authorized officer or agent of ~~any Fund~~ FT Services for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder ~~for~~ and, subject to its carrying out such ~~Fund~~instructions in accordance with its standard of care as set forth herein, ~~and~~ BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 (provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions) unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (ij) BNY may consult with its own counsel at its own expense, or with counsel to FT Services at FT Services’ expense with approval by FT Services, with respect to any matter arising in connection with the ~~appropriate Fund or~~ services to be performed by BNY under this Agreement and, subject to its ~~own counsel~~carrying out such actions in accordance with its standard of care as set forth herein, ~~and~~ shall be fully protected with respect to anything done or omitted by it in good faith and in accordance with the advice or opinion of ~~such~~ FT Services’ counsel. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (jk) ~~Notwithstanding any other provision contained~~ Except as provided in ~~this Agreement or Schedule~~ Schedules I and II attached hereto, BNY 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~~ FT Services 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 its 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. (kl) BNY shall have no duties or responsibilities whatsoever with respect to the services provided hereunder except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or ~~obligation~~ obligation, except for those set forth herein, shall be implied against BNY in connection with this Agreement. (1m) BNY, in performing the services required of it under the terms of this Agreement, and subject to its standard of care as set forth herein, shall be entitled to rely ~~fully~~ in good faith on the accuracy and validity of any and all instructions, explanations, information, specifications and documentation furnished to it by a 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 a FundFT Services. In the event BNY's ’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,~~ information from a pricing or similar service utilized, or subscribed to, by BNY which ~~BNY~~ BNY, in good faith and in its ~~judgment~~ reasonable judgment, deems reliable, ~~BNY~~ BNY, subject to its standard of care, relating to the input of such pricing, as set forth herein, 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 except that BNY shall apply its normal tolerance tests. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this subsection (1) even though BNY 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 issuersinformation. (mn) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such Fund~~FT Services or the Trust. (no) Subject to BNY’s obligation to maintain a commercially reasonable Disaster Recovery Plan and Back-Up System, neither FT Services nor BNY shall ~~maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY shall not~~ be responsible for delays or errors ~~which~~ that 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 ~~BNY~~BNY or FT Services, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, or communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the sameservices. BNY ~~should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. Nor~~ shall ~~BNY~~ not be responsible for delays or failures to supply the information or services specified in this ~~Agreement~~ Agreement, where such delays or failures are caused by the failure of any person(s) other than BNY to supply any instructions, explanations, information, specifications or documentation reasonably deemed necessary by BNY in the performance of its duties under this Agreement. Upon the occurrence of any such delay or failure, BNY shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. (op) BNY ~~shall~~agrees to as promptly as practicable under the circumstances, ~~as agent~~ notify FT Services in the event of any of the following: (i) Any of the representations and warranties of BNY in Section 3 above cease to be true and correct; or (ii) BNY is for any reason unable to perform any of its obligations under this Agreement. (q) In performing the ~~Funds~~services hereunder, ~~maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance~~ BNY shall comply with the applicable provisions of ~~Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940~~each Fund’s Prospectus, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do soincluding effective amendments thereto. (r) On a quarterly basis, BNY ~~hereby specifically agrees that it~~ will provide to FT Services and the Trust certifications in connection with Rule 38a-1 under the 1940 Act, including an attestation as to whether there have been any material changes to the policy and procedures summaries provided to the Trust, and sub-certifications ~~reasonably requested by~~ related to the ~~Funds in connection with any certification required by the Xxxxxxxx~~Sxxxxxxx-Xxxxx Act of ~~2002~~ 2002. (s) BNY will furnish to FT Services and the Trust, on a semi-annual basis, a report in accordance with Statements on Standards for Attestation Engagements No. 16 (the “SSAE Report”) as well as such other reports and information relating to BNY’s policies and procedures and its compliance with such policies and procedures and with the laws applicable to its business and its services, as the parties may mutually agree upon. (t) BNY shall maintain levels and types of insurance coverage including, without limitation, errors and omissions, fidelity bond and electronic data processing coverages, which are determined by its board of directors/trustees to be appropriate for its business. Such types and levels of coverage are consistent with the types and levels maintained in the industry by other high quality fund administrators for registered investment companies. (u) BNY shall cooperate with the Trust’s independent public accountants and shall take all reasonable actions in the performance of its obligations under this Agreement to provide such information, as may be reasonably requested by FT Services or the Trust from time to time, to such accountants for the expression of their opinion. (v) In performing the services set forth in this Agreement, BNY shall conform with the 1940 Act and all rules and regulations thereunder, with all other applicable federal, state and foreign laws and regulations, with any ~~rules or regulations promulgated~~ applicable procedures adopted by the ~~Securities~~ Trust’s board of trustees (the “Board”), and ~~Exchange Commission thereunder, provided~~ with the ~~same do not change BNY's standard~~ provisions of ~~care~~each Fund’s Prospectus.

Appears in 1 contract

Samples: Subcontract for Fund Administration and Accounting Services (Franklin ETF Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each Fund's Board~~ the Managing Owner and the provisions of this Agreement, BNY shall provide ~~daily~~ separately to each Fund (i) the administrative services set forth on Schedule I attached hereto, and each Series specified on Exhibit A attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial ~~records~~ records, other than those listed ~~on Schedule 1~~ in Schedules I and II attached hereto, or other services normally performed by the ~~Funds'~~ Funds respective counsel or independent auditors. (d) Upon receipt of a Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY may delegate any of its duties and obligations hereunder to such Fund to any delegee or agent whenever and on such terms and conditions as it deems necessary or appropriate. Notwithstanding the foregoing, no ~~Fund~~ Fund’s consent shall be required for any such delegation to any ~~other subsidiary~~ BNY Affiliate notwithstanding the domicile of ~~The Bank of New York Company~~such BNY Affiliate, ~~Inc.~~ and BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or ~~wilful~~ willful misconduct in the selection or supervision of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company~~, ~~Inc.,~~ provided that BNY shall be ~~deemed~~ liable for the acts or omissions of any BNY Affiliate to ~~have~~ the same extent it would be liable under the terms hereof had it committed ~~any~~ such act or omission of and not delegated the same, and BNY shall notify each affected Fund upon any such ~~delegee~~delegation to a BNY Affiliate. (e) ~~Each~~ To the extent permitted by applicable laws and provided that such information is not subject o any confidentiality obligation by the relevant party, each Fund shall make commercially reasonable efforts to cause its officers, managers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon reasonable request, with such information, documents and advice relating to ~~such~~ that Fund as is within the possession or knowledge of such persons ~~and is reasonably believed by BNY to be necessary or appropriate~~ in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled reasonably to rely, and shall be held harmless by each Fund when acting in reliance, upon the instructions, advice or any documents relating to ~~such~~ a Fund provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. BNY shall not be liable for any loss, damage or expense resulting from or arising out of the failure of ~~the~~ a Fund to cause any information, documents or advice to be provided to BNY as provided herein, provided BNY acts without negligence or willful misconduct. All fees or costs charged by such persons shall be borne by the ~~appropriate~~ relevant Fund. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of or BNY Affiliate or any officer or employee thereof from acting for or with any third ~~parties,~~ parties and providing services similar or identical to some or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Fund. (h) BNY may apply to ~~an officer of any Fund~~ the Managing Owner for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ taken or ~~omitted to be~~ not taken by it in good faith in accordance with such instructions. Such application for instructions may, at the option of BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to ~~the appropriate~~ a 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 after consultation with the Managing Owner in accordance with the advice or opinion of such counsel. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this ~~Agreement~~ Agreement, but to the extent expressly otherwise provided in Schedules I or ~~Schedule I~~ II attached hereto, BNY shall have no duty or obligation to with respect to, including, without limitation, any duty or obligation to determine, or advise or notify ~~any~~ a Fund of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, a such Fund, (ii) the taxable nature or effect on a such 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~~ other amount paid, payable or deemed paid, by a such Fund to its shareholders; or (iv) the effect under any federal, state, foreign, or ~~foreign~~ other applicable income tax laws of a such Fund making or not making any distribution or ~~dividend~~ other payment, or any election with respect thereto. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and Schedule I attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1) BNY, in performing the services required of it under the terms of this Agreement, shall be entitled reasonably to rely fully on the accuracy and validity of any and all instructions, explanations, information, specifications and documentation furnished to it by a 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'~~ a Fund’s 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 a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, or from a broker-dealer selected by BNY, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ sub-section (1k) even though BNY 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. (ml) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (nm) Subject to the provisions of this sub-section (m), BNY shall ~~maintain~~ compute the net asset value per share of each Fund and shall value the Securities held by such ~~back-up system(s),~~ Fund at such times and ~~disaster recovery plan(s), as are required by its regulators~~ dates and ~~all laws applicable to it. BNY shall not be responsible for delays or errors which occur by reason of circumstances beyond its control~~ in the ~~performance~~ manner specified in the then currently effective Prospectus of ~~its duties under this Agreement~~such Fund, except that notwithstanding any language in the Prospectus, in no event shall BNY be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, ~~labor difficulties within~~ those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely for each Fund. To the extent valuation of Securities or ~~without~~ computation of a Fund’s net asset value as specified in the Fund’s then currently effective Prospectus is at any time inconsistent with any applicable laws or regulations, such Fund shall immediately so notify BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and net asset value, or subject to the prior approval of BNY, ~~mechanical breakdowns~~instruct BNY in writing to value Securities and compute net asset value in a manner which such Fund then represents in writing to be consistent with all applicable laws and regulations. Such Fund may also from time to time, ~~flood~~ subject to the prior approval of BNY, instruct BNY in writing to compute the value of the Securities or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) net asset value in a manner other than as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances. Nor shall BNY be responsible for delays or failures to supply the information or services specified in this ~~Agreement where~~ sub-section (m). By giving such ~~delays or failures are caused by~~ instruction, such Fund shall be deemed to have represented that such instruction is consistent with all applicable laws and regulations and its then currently effective Prospectus. Each Fund shall have sole responsibility for determining the ~~failure~~ method of ~~any person(s) other than BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in~~ valuation of Securities and the ~~performance~~ method of ~~its duties under this Agreement~~computing net asset value. (on) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no ~~liability for any failure to do so. (r)~~ duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY ~~hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds~~ in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of carethis Agreement.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (STREAM S&P Dynamic Roll Global Commodities Fund)

Duties and Obligations of BNY. (a) Subject to the direction and control of DB Commodity Services LLC, in its capacity as managing owner of each ~~Fund's Board~~ of the Funds, and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ~~other than those listed on Schedule 1~~ 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), BNY 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. BNY 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons and is reasonably believed by BNY to be necessary or appropriate~~ persons, in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY 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 BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator~~ any of the aforementioned persons or Proper Instructions (~~if any) and transfer agent and reasonably believed to be accurate by BNY~~as hereinafter defined). BNY 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 BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY by Proper Instruction with bid, offer, or market values of ~~Securities~~ assets if BNY notifies such Fund that same are not available to BNY from a ~~security~~ pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY by Proper Instruction with bid, offer, or market values of ~~Securities~~ assets and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular securities~~ pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the Fund. (h) BNY may apply to an officer of any Fund for ~~written instructions~~ Proper Instructions with respect to any matter arising in connection with BNY's performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ taken or omitted to be taken by it in good faith in accordance with such ~~instructions~~Proper Instructions. Such application for ~~instructions~~ Proper Instructions may, at the option of BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received ~~written instructions~~ Proper Instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the appropriate ~~Fund or its own counsel~~Fund, 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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~~ Proper Instructions furnished to it by a Fund and shall have no duty or obligation to review the accuracy, validity or propriety of such ~~instructions, explanations, information, specifications or documentation,~~ Proper Instructions including, without limitation, ~~evaluations of securities~~evaluations; 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~~assets; and amounts receivable or amounts payable for the sale or redemption of Fund shares effected by or on ~~behalf~~ behalf of a Fund. In the event BNY'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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of ~~securities or~~ other assets by a Fund or any third party described in this ~~subsection~~ (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall ~~maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (DB Commodity Index Tracking Master Fund)

Duties and Obligations of BNY. (a) Subject to the direction and control of ~~each~~ the Fund~~'s Board~~ ’s Trustees and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund and each Series specified on Exhibit A attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each Series of the Fund and shall value the securities held by the Fund (i) the ~~"Securities"~~administrative services set forth on Schedule I attached hereto and (ii) at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule II attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY shall not provide any services relating to the management, investment advisory or sub-advisory functions of ~~any~~ the Fund, distribution of shares of ~~any~~ the Fund, maintenance of ~~any~~ the Fund's ’s financial ~~records other than those listed on Schedule 1~~ records, except to the extent specifically set forth herein or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of a the Fund's ’s prior written consent (which shall not be unreasonably withheld), BNY 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. BNY 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 other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., and BNY shall be deemed to have ~~committed~~ taken or omitted any ~~act~~ action taken or ~~omission of~~ omitted by any such ~~delegee~~subsidiary. (e) ~~Each~~ The Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such ~~information,~~ information or documents ~~and advice~~ relating to ~~such~~ the Fund as is within the possession or knowledge of such ~~persons and is reasonably believed by BNY to be necessary or appropriate~~ persons, in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled to rely, and shall be held harmless by ~~each~~ the Fund when acting in reliance, upon the ~~instructions, advice~~ any such information or ~~any~~ documents ~~relating to such Fund~~ provided to ~~BNY by~~ BNY, or upon any advice received from (i) a ~~Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and~~ person reasonably believed by BNY to ~~be accurate~~ have been identified by ~~BNY~~the Fund as authorized to give advice on behalf of the Fund or its advisors (each an “Authorized Person”) (ii) Fund Counsel, or (iii) the Fund’s Independent Accountants. BNY 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 from legal counsel or independent accountants to be provided to BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each~~ The Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY shall not be required to include as the 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. ~~Each~~ The Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies ~~such~~ the Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular securities pricing or similar service, but shall be required and obligated to maintain a subscription or access to at least one~~ securities pricing or similar service. (h) BNY may apply to an officer of ~~any~~ the Fund for written instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for ~~such~~ the Fund, and BNY shall not be liable for any action ~~reasonably~~ 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 BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may consult with counsel to the ~~appropriate~~ Fund or its own outside 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY shall have no duty or obligation to with respect to, including, without limitation, any duty or obligation to determine, or advise or notify ~~any~~ the Fund of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable ~~to, a~~ to the Fund, (ii) the taxable nature or effect on a 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 a the Fund to its shareholders; or (iv) the effect under any federal, state, or foreign income tax laws of a the Fund making or not making any distribution or dividend payment, or any election with respect thereto. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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 by a any authorized person on behalf of 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 a the Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a the Fund or any third party described in this ~~subsection~~ (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a the Fund is or will be actually paid, but will accrue such interest until otherwise instructed by ~~such~~ the Fund. (n) ~~BNY shall maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it.~~ BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall be made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (Powershares Exchange Traded Fund Trust)

Duties and Obligations of BNY. (a) Subject to the direction and control of each Fund's Board and the provisions of this Agreement, BNY shall provide ~~daily~~ to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto the services described in Schedule I, as such schedule may be amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares and (~~"Class"~~ii) of each 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. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation ~~procedures applicable to the calculation of such net asset values as approved by the Fund's Board~~ and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset valuecomputation services listed on Schedule Il attached hereto. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ~~other than those listed on Schedule 1~~ 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), BNY 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~~appropriate (hereinafter referred to as an "Agent"). 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. (hereinafter referred to as a "BNY Affiliate"). BNY 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~~ Agent utilized hereunder (other than a ~~delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ BNY Affiliate) so long as BNY acts in good faith and without negligence or wilful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each Fund shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, ~~current administrator (if any)~~ transfer agent, and ~~transfer agent~~ any other service provider to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons~~ persons, and which in the opinion of BNY, is ~~reasonably believed by BNY to be~~ necessary ~~or appropriate~~ in order ~~for BNY~~ to enable it to perform its duties hereunder. ~~In connection with its duties hereunder,~~ BNY shall not be ~~entitled~~ responsible for, under any duty to ~~rely~~inquire into, ~~and shall~~ or be ~~held harmless by each Fund when acting in reliance~~deemed to make any assurances with respect to the accuracy, ~~upon the instructions~~validity or propriety of any information, documents or advice ~~or any documents relating to such Fund~~ provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent and reasonably believed to be accurate by BNY~~any of the aforementioned persons. BNY 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 BNY as provided ~~herein~~herein and shall be held harmless by each Fund when acting in reliance upon such information, documents or advice relating to such Fund. All fees or costs charged by such persons shall be borne by the appropriate Fund. In performing services hereunder, BNY may rely, in whole or in part, upon information obtained from a third-party service utilized or subscribed to by BNY which BNY in its reasonable judgment deems reliable. BNY shall not be liable for any loss, damage or expense incurred as a result of errors or omissions contained in any pricing or other information provided by any such third-party service authorized by the Fund, provided, however, that BNY will exercise reasonable care in utilizing any such information. (f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) Each Fund shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or market values of Securities if BNY notifies such Fund that same are not available to BNY from a security pricing or similar service utilized, or subscribed to, by BNY which BNY 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 BNY with bid, offer, or market values of Securities and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular~~ securities pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service.~~solely for the Fund, (h) BNY may apply to an officer or duly authorized agent of any Fund for written instructions with respect to any matter arising in connection with BNY's performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ taken or omitted to be taken by it in good faith ~~in accordance with~~ pursuant to such instructions. Such application for instructions ~~may, at the option of BNY,~~ shall set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received written instructions in response to such application specifying the action to be taken or omitted. (i) BNY may ~~consult with~~ apply to and obtain the advice and opinion of Fund counsel ~~to the appropriate Fund~~ or its own ~~counsel,~~ counsel and shall be ~~fully protected with respect~~ entitled to ~~anything done or omitted by it in good faith in accordance with~~ rely on the advice or opinion of such counsel. BNY ~~shall provide prompt notification~~ agrees to use reasonable commercial efforts to notify the Fund prior to contacting Fund counsel pursuant to the ~~appropriate Fund in~~ immediately preceding sentence, provided, however, that if prior notification is not possible or desirable under the ~~event that it acts upon advice or opinion of counsel that is inconsistent with instructions~~circumstances, ~~procedures, or requests provided by~~ BNY agrees to use reasonable commercial efforts to provide subsequent notice to the Fund. The ~~appropriate Fund~~ costs associated with obtaining such advice shall be ~~liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior~~ borne by BNY unless BNY has received written consent of the ~~appropriate fund~~Fund to charge such costs to the Fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or Il attached hereto, BNY shall have no duty or obligation to with respect to, including, without 6 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and Il attached ~~hereto~~hereto and as may be otherwise required by law, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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 by a 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 a Fund. In the event BNY'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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of securities or other assets by a Fund or any third party described in this ~~subsection~~ (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. BNY agrees to advise the Fund if an expected interest payment is greater than 30 days past due. (n) ~~BNY~~ Neither party shall ~~maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY 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~~control, including, without limitation, labor difficulties within or without BNY, mechanical breakdowns, ~~flood~~ flood, or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY ~~shall~~will maintain throughout the term of this Agreement, ~~as agent for~~ such information security processes and procedures which it reasonably believes to be necessary and appropriate to ensure the ~~Funds~~security and confidentiality of customer data maintained on its computer systems and prevent unauthorized access to, ~~maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any~~ use or disruption of such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amendedsystems. Such ~~books, accounts and other documents~~ procedures shall be ~~made available upon reasonable request for inspection by officers, employees and auditors of the Funds during BNY's normal business hours~~consistent with any statue or regulation to which BNY is subject that imposes information security standards. (p) ~~All records maintained~~ BNY will maintain throughout the term of this Agreement, such contingency plans as it reasonably believes to be necessary and ~~preserved by~~ appropriate to recover its operations from the occurrence of a disaster and which are consistent with any statue or regulation to which it is subject that imposes business resumption and contingency planning standards. BNY ~~pursuant~~ agrees to ~~this Agreement which~~ provide the Funds ~~are required~~ with a summary of its contingency plan as it relates to ~~maintain~~ the systems used to provide the services hereunder and ~~preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of~~ to provide the Funds ~~and shall be surrendered to the Funds or provided to their regulators promptly~~ with periodic updates of such summary upon ~~request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of~~ the Funds~~, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall~~ ' reasonable request~~, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained~~. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (Prudential Investment Portfolios, Inc. 14)

Duties and Obligations of BNY. (a) Subject to the direction and control of DB Commodity Services LLC, in its capacity as managing owner of each ~~Fund's Board~~ of the Funds, and the provisions of this Agreement, BNY shall provide ~~daily~~ separately to each Fund ~~and each Series specified~~ (i) the administrative services set forth on ~~Exhibit A~~ Schedule I attached hereto and (ii) the valuation and computation services ~~described in~~ listed on Schedule III attached hereto. Without limiting the foregoing, ~~as such schedule may~~ it is agreed that all services with respect to federal, state and local income tax matters, including the preparation and filing of returns and reports, shall be ~~amended from time to time. Subject to the provisions of this Agreement, BNY shall compute the net asset value per share of each class of shares ("Class") of each Series~~ provided by a third party retained by or on behalf of the ~~Fund~~ Funds, initially Price Waterhouse Coopers, and ~~shall value the securities held~~ not by the Fund (the "Securities") at such times and dates and in the manner specified in the then currently effective Prospectus of the Fund. To the extent valuation of Securities or computation of a net asset value of a Series or Class, in accordance with the valuation procedures applicable to the calculation of such net asset values as approved by the Fund's Board and 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 BNY in writing and thereafter shall either furnish BNY at all appropriate times with the values of such Securities and the net asset value of each Class of each Series', or subject to the prior approval of BNY, which BNY shall not unreasonably withhold, instruct BNY in writing to value Securities and compute the net asset value of each Class of each Series' 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 instruct BNY in writing to compute the value of the Securities or a Series' or Class' net asset value in a manner other than as specified in this paragraph. 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' and Class' net asset value. (b) In performing hereunder, BNY shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNY 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 ’s financial ~~records~~ records, other than those listed ~~on Schedule 1~~ in Schedules I and II attached hereto, or other services normally performed by the Funds' ’ respective counsel or independent auditors. (d) Upon receipt of ~~a Fund's~~ prior written consent by the Trusts, on behalf of their corresponding Fund, each as applicable (which shall not be unreasonably withheld), BNY 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. BNY shall not be liable to the Trust, the Master Trust or 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 ~~other than a delegee or agent which is a subsidiary or the Bank of New York Company, Inc~~ so long as BNY acts in good faith and without negligence or ~~wilful~~ willful misconduct in the selection of such delegee or agent~~. With respect to any delegee or agent which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed to have committed any act or omission of such delegee~~. (e) Each ~~Fund~~ of the Trusts, on behalf of each of their corresponding Funds, shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNY and to provide BNY, upon request, with such information, documents and advice relating to such Fund as is within the possession or knowledge of such ~~persons and is reasonably believed by BNY to be necessary or appropriate~~ persons, in order ~~for~~ to enable BNY to perform its duties hereunder. In connection with its duties hereunder, BNY shall be entitled to rely, and shall be held harmless by the Trusts and each ~~Fund~~ of the Funds, as applicable, when acting in reliance, upon the ~~instructions~~information, documents and advice ~~or any documents~~ relating to such Fund provided to BNY by ~~a Fund's officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator~~ any of the aforementioned persons or Proper Instructions (~~if any) and transfer agent and reasonably believed to be accurate by BNY~~as hereinafter defined). BNY shall not be liable for any loss, damage or expense resulting from or arising out of the failure of the Trusts or any Fund to cause any information, documents or advice to be provided to BNY 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 BNY, any affiliate of BNY or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to ~~some~~ same or all of the services provided hereunder. (g) ~~Each Fund~~ The Trusts, on behalf of each of their corresponding Funds, shall furnish BNY with any and all instructions, explanations, information, specifications and documentation deemed ~~reasonably~~ necessary by BNY 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 and BNY shall comply with any such instructions, explanations, information, specifications, and documentation~~expenses. BNY 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 BNY the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. ~~Each Fund~~ The Trusts, on behalf of each of their corresponding Funds, shall also furnish BNY by Proper Instruction with bid, offer, or market values of ~~Securities~~ assets if BNY notifies such Fund that same are not available to BNY from a ~~security~~ pricing or similar service utilized, or subscribed to, by BNY which BNY in its judgment deems reliable at the time such information is required for calculations hereunder. At any time and from ~~time to~~ time-to-time, the ~~Fund~~ Trusts, on behalf of each of their corresponding Funds, also may furnish BNY by Proper Instruction with bid, offer, or market values of ~~Securities~~ assets and instruct BNY to use such information in its calculations hereunder. BNY shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any ~~particular securities~~ pricing or similar service. In no event shall BNY be required to determine, ~~but~~ or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be ~~required and obligated to maintain a subscription or access to at least one securities pricing or similar service~~solely for the applicable Fund. (h) BNY may apply to an officer of ~~any Fund~~ the Trusts, on behalf of each of their corresponding Funds, for ~~written instructions~~ Proper Instructions with respect to any matter arising in connection with BNY's ’s performance hereunder for such Fund, and BNY shall not be liable for any action ~~reasonably~~ taken or omitted to be taken by it in good faith in accordance with such ~~instructions~~Proper Instructions. Such application for ~~instructions~~ Proper Instructions may, at the option of BNY, set forth in writing any action ~~reasonably~~ proposed to be taken or omitted to be taken by BNY with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNY 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 ~~(provided that BNY has given the officer of the Funds a commercially reasonable amount of time to respond to the request for instructions)~~ unless, prior to taking or omitting to take any such action, BNY has received ~~written instructions~~ Proper Instructions in response to such application specifying the action to be taken or omitted. (i) BNY 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. BNY shall provide prompt notification to the appropriate Fund in the event that it acts upon advice or opinion of counsel that is inconsistent with instructions, procedures, or requests provided by the Fund. The appropriate Fund shall be liable for the fees and expenses of its counsel and for the reasonable fees and expense of BNY's own counsel, not to exceed in any one instance $10,000 without the prior consent of the appropriate fund. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNY 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 its 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. (k) BNY shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and ~~Schedule~~ Schedules I and II attached hereto, and no covenant or obligation shall be implied against BNY in connection with this Agreement. (1l) BNY, 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~~ Proper Instructions furnished to it by ~~a Fund~~ the Trusts, on behalf of each of their corresponding Funds, and shall have no duty or obligation to review the accuracy, validity or propriety of such ~~instructions, explanations, information, specifications or documentation,~~ Proper Instructions including, without limitation, ~~evaluations of securities~~evaluations; 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~~assets; and amounts receivable or amounts payable for the sale or redemption of Fund shares effected by or on behalf of a Fund. In the event BNY's ’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 BNY which BNY in its judgment deems reliable, BNY 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 except that BNY shall apply its normal tolerance tests~~information. Without limiting the generality of the foregoing, BNY shall not be required to inquire into any valuation of ~~securities or~~ other assets by a Fund or any third party described in this ~~subsection~~ paragraph (1l) even though BNY 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. (m) BNY, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by such Fund. (n) BNY shall ~~maintain such back-up system(s), and disaster recovery plan(s), as are required by its regulators and all laws applicable to it. BNY 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 BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services provided BNY is maintaining such back-up system(s) and disaster recovery plan(s) as described above, or, provided if it does not, that such delays and errors would have occurred even if it had maintained the same. BNY should use commercially reasonable best efforts to resume performance as soon as practicable under the circumstancesservices. Nor shall BNY 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 BNY to supply any instructions, explanations, information, specifications or documentation deemed necessary by BNY in the performance of its duties under this Agreement. (o) BNY shall, as agent for the Funds, maintain and keep current the books, accounts and other documents, if any, listed in Schedule I and preserve any such books, accounts and other documents in accordance with the applicable provisions of Rules 31a-l and 31a-2 of the General Rules and Regulations under the Investment Company Act of 1940, as such Rules may be amended. Such books, accounts and other documents shall ~~be made available upon reasonable request for inspection by officers, employees and auditors of~~ provide the Funds ~~during~~ with custodial and transfer agency services on BNY~~'s normal business hours~~’s standard terms for no additional consideration. (p) All records maintained and preserved by BNY pursuant to this Agreement which the Funds are required to maintain and preserve in accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain the property of the Funds and shall be surrendered to the Funds or provided to their regulators promptly upon request by the Funds in the form in which such records have been maintained and preserved. Upon reasonable request of the Funds, BNY shall provide in hard copy, computer disc, on micro-film or other format as the Funds or their regulators shall request, any records included in any such delivery which are maintained by BNY on a computer disc, or are otherwise maintained. (q) All books, records, information and data pertaining to the business of the Funds, or their prior, present or potential shareholders that are exchanged or received in connection with the performance of BNY's duties under this Agreement shall remain confidential and shall not be disclosed to any other person, except as specifically authorized by the Funds or as may be required by law, and shall not be used for any purpose other than performance of its responsibilities and duties hereunder, and except that BNY retains the right to disclose matters subject to confidentiality to its examiners, regulators, internal or external auditors, its accountants, and its internal and external counsel, or to others, whenever it is advised by its internal or external counsel that it is reasonably likely BNY would be liable for a failure to do so. BNY will provide written notice to the Funds at least five (5) business days prior to any disclosures pursuant to this Paragraph 4(q), but, provided it shall have provided as much notice as is reasonably practicable under the circumstances, BNY shall have no liability for any failure to do so. (r) BNY hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Funds in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY's standard of care.

Appears in 1 contract

Samples: Fund Administration and Accounting Agreement (DB US Dollar Index Master Trust)

Common use of Duties and Obligations of BNY Clause in Contracts