Duties and Obligations of BNYM. (a) Subject to the direction and control of the Trust’s Trustees and the provisions of this Agreement, BNYM shall provide 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, BNYM shall provide, at its expense, office space, facilities, equipment and personnel. (c) BNYM shall not provide any services relating to the management, investment advisory or sub-advisory functions of the Trust, distribution of shares of any Fund, maintenance of the Trust’s financial records, except to the extent specifically set forth herein or the schedules hereto or other services normally performed by the Trusts’ respective counsel or independent auditors. (d) Upon receipt of the Trust’s prior written consent (which shall not be unreasonably withheld), BNYM 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. BNYM shall bear any costs and expenses associated with BNYM’s delegation to such delegees and agents. 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. BNYM 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 BNYM and utilized hereunder so long as BNYM acts in good faith and without negligence or willful misconduct in the selection or retention of such delegee or agent, provided, however, that BNYM shall use commercially reasonable efforts to pursue any rights or remedies in respect of such loss or damage which BNYM may have against any such unaffiliated delegee or agent in the event of its default; any recovery shall be for the account of the Trust and applicable Fund, and BNYM shall be reimbursed by the Trust on behalf of the applicable Fund for any cost incurred in pursuing the same. For purposes of this Agreement, BNYM shall be subject to the same standard of care with respect to and liable for, the actions and omissions of any such delegee or agent who is a BNYM affiliate to the same extent a BNYM’s direct actions or omissions under this Agreement. (e) The Trust shall direct its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNYM and to provide BNYM, upon reasonable request, with such information or documents relating to the Trust as is within the possession of such persons, in order to enable BNYM to perform its duties hereunder. In connection with its duties hereunder, BNYM shall be entitled to rely, and shall be held harmless by the Trust when acting upon the instructions, advice or any documents provided to BNYM from (i) a person identified by the Trust as authorized to give advice on behalf of the Trust or its advisors (each an “Authorized Person”), (ii) Trust counsel, (iii) the Trust’s independent accountants, (iv) the Trust’s adviser and (v) the Trust’s distributor. BNYM shall not be liable for any loss, damage or expense resulting from or arising out of the failure of the Trust to cause any information, documents or advice from legal counsel or independent accountants to be provided to BNYM as provided herein. All fees or costs charged by such persons shall be borne by the applicable Fund. (f) Nothing in this Agreement shall limit or restrict BNYM, any affiliate of BNYM 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, BNYM may be required to review or calculate amounts due BNYM or its affiliates from the Trust and its respective Funds, and agrees that such conflicting interests shall not prevent BNYM from so acting. (g) The Trust shall furnish BNYM with any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNYM in the performance of its duties hereunder, including, without limitation, the amounts or written formula for calculating the amounts and times of accrual of liabilities and expenses for each Fund. BNYM shall not be required to include as liabilities and expenses, nor as a reduction of net asset value, any accrual for any federal, state, or foreign income taxes unless the Trust shall have specified to BNYM the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. The Trust shall also furnish BNYM with bid, offer, or market values of the portfolio securities (“Securities”) of any Fund if BNYM notifies the Trust that same are not available to BNYM from a security pricing or similar service utilized, or subscribed to, by BNYM which BNYM in its judgment deems reliable at the time such information is required for calculations hereunder. At any time and from time to time, the Trust also may furnish BNYM with bid, offer, or market values of Securities and instruct BNYM to use such information in its calculations hereunder. BNYM shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any securities pricing or similar service. In no event shall BNYM 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 Trust. (h) BNYM may apply to an authorized officer of the Trust for written instructions with respect to any matter arising in connection with BNYM’s performance hereunder for the Trust, and BNYM shall not be liable for any action taken or omitted to be taken by it in good faith and without negligence or willful misconduct in accordance with such instructions. Such application for instructions may, at the option of BNYM, set forth in writing any action proposed to be taken or omitted to be taken by BNYM with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNYM shall not be liable for any action taken or omitted to be taken in good faith and without negligence, reckless disregard, or willful misconduct in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, BNYM has received written instructions in response to such application specifying the action to be taken or omitted. (i) If BNYM shall be in doubt as to any question of law pertaining to any action it should or should not take, BNYM may, with prior notice to the Trust, request advice from outside counsel of its own choosing (who may be counsel for the Trust, the Trust’s investment adviser or BNYM, at the option of BNYM), provided, however, that the Trust may request BNYM 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 Trust or its investment advisor shall be borne by the Trust on behalf of the applicable Fund; expense of counsel to BNYM shall be borne by BNYM. (j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNYM shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Trust of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, any Fund (ii) the taxable nature or effect on 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 any Fund to its shareholders, or (iv) the effect under any federal, state, or foreign income tax laws of any Fund making or not making any distribution or dividend payment, or any election with respect thereto. (k) BNYM shall have no 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 BNYM in connection with this Agreement. (l) BNYM, 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 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 the liabilities and 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 effected by or on behalf of the Trust. In the event BNYM’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 BNYM which BNYM in its reasonable judgment deems reliable, BNYM 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. Without limiting the generality of the foregoing, BNYM shall not be required to inquire into any valuation of securities or other assets by the Trust or any third party described in this paragraph (l) even though BNYM 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) BNYM, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to any Fund is or will be actually paid, but will accrue such interest until otherwise instructed by the Trust. (n) BNYM 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 BNYM, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services (a “Force Majeure Event”), provided that BNYM has established and maintained a disaster recovery and contingency plans and systems as described in Section 4(o) below or, if not, that such delay or error would have occurred even if BNYM had established and maintained such plans and systems. Nor shall BNYM 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 BNYM to supply any instructions, explanations, information, specifications or documentation deemed reasonably necessary by BNYM in the performance of its duties under this Agreement. (o) BNYM will maintain throughout the term of this Agreement, such disaster recovery and contingency plans and systems as it reasonably believes to be necessary and appropriate to recover its operations from the occurrence of a Force Majeure Event and which are consistent with the requirements of any statute, regulation or rule to which it is subject that imposes business resumption and contingency planning standards. BNYM shall employ commercially reasonable efforts to resume performance as soon as practicable under the circumstances, following the occurrence of a Force Majeure Event.
Appears in 3 contracts
Samples: Fund Administration and Accounting Agreement (First Trust Exchange-Traded Alphadex Fund Ii), Fund Administration and Accounting Agreement (First Trust Exchange-Traded Fund Iii), Fund Administration and Accounting Agreement (First Trust Exchange-Traded Fund Vi)
Duties and Obligations of BNYM. (a) Subject to the direction and control of the Trusteach Fund’s Trustees Board and the provisions of this Agreement, BNYM shall provide to the Trust each Fund (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, BNYM shall provide, at its expense, office space, facilities, equipment and personnel.
(c) . BNYM shall not provide any services relating to the management, investment advisory or sub-advisory functions of the Trustany Fund, distribution of shares of any Fund, maintenance of the Trustany Fund’s financial records, except to the extent specifically set forth herein or the schedules hereto records or other services normally performed by the TrustsFunds’ respective counsel or independent auditors.
(d) . Upon receipt of the Trusta Fund’s prior written consent (which shall not be unreasonably withheld), BNYM 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. BNYM shall bear any costs and expenses associated with BNYM’s delegation to such delegees and agents. Notwithstanding the foregoing, no Trust Fund consent shall be required for any such delegation to any other subsidiary of The Bank of New York Mellon Corporation. Company, Inc. BNYM 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 BNYM and utilized hereunder so long as BNYM acts in good faith and without negligence or willful wilful misconduct in the selection or retention of such delegee or agent, provided, however, that BNYM . Each Fund shall use commercially reasonable efforts to pursue any rights or remedies in respect of such loss or damage which BNYM may have against any such unaffiliated delegee or agent in the event of its default; any recovery shall be for the account of the Trust and applicable Fund, and BNYM shall be reimbursed by the Trust on behalf of the applicable Fund for any cost incurred in pursuing the same. For purposes of this Agreement, BNYM shall be subject to the same standard of care with respect to and liable for, the actions and omissions of any such delegee or agent who is a BNYM affiliate to the same extent a BNYM’s direct actions or omissions under this Agreement.
(e) The Trust shall direct 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 BNYM and to provide the BNYM, upon reasonable request, with such information or information, documents and advice relating to the Trust such Fund as is within the possession or knowledge of such persons, and which in the opinion of the BNYM, is necessary in order to enable BNYM it to perform its duties hereunder. In connection with its duties hereunder, The BNYM shall not be entitled responsible for, under any duty to relyinquire into, and shall or be held harmless by deemed to make any assurances with respect to the Trust when acting upon the instructionsaccuracy, validity or propriety of any information, documents or advice or any documents provided to the BNYM from (i) a person identified by the Trust as authorized to give advice on behalf any of the Trust or its advisors (each an “Authorized Person”), (ii) Trust counsel, (iii) the Trust’s independent accountants, (iv) the Trust’s adviser and (v) the Trust’s distributoraforementioned persons. The BNYM shall not be liable for any loss, damage or expense resulting from or arising out of the failure of the Trust Fund to cause any information, documents or advice from legal counsel or independent accountants to be provided to the BNYM as provided hereinherein 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 applicable appropriate Fund.
(f) . In the event that any services performed by the BNYM hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNYM which the BNYM in its reasonable judgment deems reliable, the BNYM 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 BNYM, any affiliate of BNYM 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 same or all of the services provided hereunder. The Trust acknowledges that in performing services under Subject to the provisions of this Agreement, BNYM may be required to review or calculate amounts due BNYM or its affiliates from shall compute the Trust net asset value per share of the Fund and its respective Funds, shall value the securities held by the Fund at such times and agrees that such conflicting interests shall not prevent BNYM from so acting.
(g) The Trust shall furnish BNYM with any dates and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNYM in the performance of its duties hereunder, including, without limitation, manner specified in the amounts or written formula for calculating the amounts and times of accrual of liabilities and expenses for each Fund. BNYM shall not be required to include as liabilities and expenses, nor as a reduction of net asset value, any accrual for any federal, state, or foreign income taxes unless the Trust shall have specified to BNYM the precise amount then currently effective Prospectus of the same to be included Fund, except that notwithstanding any language in liabilities and expenses or used to reduce net asset value. The Trust shall also furnish BNYM with bidthe Prospectus, offer, or market values of the portfolio securities (“Securities”) of any Fund if BNYM notifies the Trust that same are not available to BNYM from a security pricing or similar service utilized, or subscribed to, by BNYM which BNYM in its judgment deems reliable at the time such information is required for calculations hereunder. At any time and from time to time, the Trust also may furnish BNYM with bid, offer, or market values of Securities and instruct BNYM to use such information in its calculations hereunder. BNYM shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any securities pricing or similar service. In no event shall BNYM 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. BNYM 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 BNYM in writing and thereafter shall either furnish BNYM at all appropriate times with the values of such securities and the Fund’s net asset value, or subject to the prior approval of BNYM, instruct BNYM 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 BNYM, instruct BNYM 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 Trust.
(h) method of valuation of securities and the method of computing net asset value. The Fund shall furnish BNYM with any and all instructions, explanations, information, specifications and documentation deemed necessary by BNYM 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. BNYM 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 BNYM 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 BNYM with bid, offer, or market values of Securities if BNYM notifies such Fund that same are not available to BNYM from a security pricing or similar service utilized, or subscribed to, by BNYM which BNYM 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 BNYM with bid, offer, or market values of Securities and instruct BNYM to use such information in its calculations hereunder. BNYM 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. BNYM may apply to an officer or duly authorized officer agent of the Trust any Fund for written instructions with respect to any matter arising in connection with BNYM’s performance hereunder for the Trustsuch Fund, and BNYM shall not be liable for any action taken or omitted to be taken by it in good faith and without negligence or willful misconduct in accordance with such instructions. Such application for instructions may, at the option of BNYM, set forth in writing any action proposed to be taken or omitted to be taken by BNYM with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNYM shall not be liable for any action taken or omitted to be taken in good faith and without negligence, reckless disregard, or willful misconduct in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, BNYM has received written instructions in response to such application specifying the action to be taken or omitted.
(i) If . BNYM shall be in doubt as to any question of law pertaining to any action it should or should not take, BNYM may, may consult with prior notice to the Trust, request advice from outside counsel of its own choosing (who may be counsel for the Trust, the Trust’s investment adviser or BNYM, at the option of BNYM), provided, however, that the Trust may request BNYM 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 Trust appropriate Fund or its investment advisor own counsel, at such Fund’s expense, and shall be borne fully protected with respect to anything done or omitted by it in good faith in accordance with the Trust on behalf advice or opinion of the applicable Fund; expense of counsel to BNYM shall be borne by BNYM.
(j) such counsel. Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNYM shall have no duty or obligation to with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Trust any Fund of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, any Fund a Fund, (ii) the taxable nature or effect on any 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 any a Fund to its shareholders, ; or (iv) the effect under any federal, state, or foreign income tax laws of any a Fund making or not making any distribution or dividend payment, or any election with respect thereto.
(k) . BNYM shall have no 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 BNYM in connection with this Agreement.
(l) . BNYM, 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 any Authorized Person on behalf of the Trust 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 the Series’ liabilities and expenses of any Fundexpenses; 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 Fund shares of any Fund effected by or on behalf of the Trusta Fund. In the event BNYM’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 BNYM which BNYM in its reasonable judgment deems reliable, BNYM 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. Without limiting the generality of the foregoing, BNYM shall not be required to inquire into any valuation of securities or other assets by the Trust a Fund or any third party described in this paragraph (lm) even though BNYM 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) . BNYM, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to any a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by the Trust.
(n) such Fund. BNYM 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 BNYM, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services (a “Force Majeure Event”), provided that BNYM has established and maintained a disaster recovery and contingency plans and systems as described in Section 4(o) below or, if not, that such delay or error would have occurred even if BNYM had established and maintained such plans and systemsservices. Nor shall BNYM 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 BNYM to supply any instructions, explanations, information, specifications or documentation deemed reasonably necessary by BNYM in the performance of its duties under this Agreement.
(o) BNYM will maintain throughout the term of this Agreement, such disaster recovery and contingency plans and systems as it reasonably believes to be necessary and appropriate to recover its operations from the occurrence of a Force Majeure Event and which are consistent with the requirements of any statute, regulation or rule to which it is subject that imposes business resumption and contingency planning standards. BNYM shall employ commercially reasonable efforts to resume performance as soon as practicable under the circumstances, following the occurrence of a Force Majeure Event.
Appears in 3 contracts
Samples: Fund Administration and Accounting Agreement (Ook Inc), Fund Administration and Accounting Agreement (Ook Inc), Fund Administration and Accounting Agreement (Ook Inc)
Duties and Obligations of BNYM. (a) Subject to the direction and control of the Trust’s 's Trustees and the provisions of this Agreement, BNYM shall provide 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, BNYM shall provide, at its expense, office space, facilities, equipment and personnel.
(c) BNYM shall not provide any services relating to the management, investment advisory or sub-advisory functions of the Trust, distribution of shares of any Fund, maintenance of the Trust’s 's financial records, except to the extent specifically set forth herein or the schedules hereto or other services normally performed by the Trusts’ ' respective counsel or independent auditors.
(d) Upon receipt of the Trust’s 's prior written consent (which shall not be unreasonably withheld), BNYM 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. BNYM shall bear any costs and expenses associated with BNYM’s delegation to such delegees and agents. 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. BNYM 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 BNYM and utilized hereunder so long as BNYM acts in good faith and without negligence or willful misconduct in the selection or retention of such delegee or agent, provided, however, that BNYM shall use commercially reasonable efforts to pursue any rights or remedies in respect of such loss or damage which BNYM may have against any such unaffiliated delegee or agent in the event of its default; any recovery shall be for the account of the Trust and applicable Fund, and BNYM shall be reimbursed by the Trust on behalf of the applicable Fund for any cost incurred in pursuing the same. For purposes of this Agreement, BNYM shall be subject to the same standard of care with respect to and liable for, the actions and omissions of any such delegee or agent who is a BNYM affiliate to the same extent a BNYM’s direct actions or omissions under this Agreement.
(e) The Trust shall direct cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNYM and to provide BNYM, upon reasonable request, with such information or documents relating to the Trust as is within the possession or knowledge of such persons, in order to enable BNYM to perform its duties hereunder. In connection with its duties hereunder, BNYM shall be entitled to rely, and shall be held harmless by the Trust when acting in reliance, upon the instructions, advice or any documents provided to BNYM from (i) a person reasonably believed by BNYM to have been identified by the Trust as authorized to give advice on behalf of the Trust or its advisors (each an “"Authorized Person”"), (ii) Trust counsel, (iii) the Trust’s 's independent accountants, (iv) the Trust’s 's adviser and (v) the Trust’s 's distributor. BNYM shall not be liable for any loss, damage or expense resulting from or arising out of the failure of the Trust to cause any information, documents or advice from legal counsel or independent accountants to be provided to BNYM as provided herein. All fees or costs charged by such persons shall be borne by the applicable FundTrust.
(f) Nothing in this Agreement shall limit or restrict BNYM, any affiliate of BNYM 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, BNYM may be required to review or calculate amounts due BNYM or its affiliates from the Trust and its respective Funds, and agrees that such conflicting interests shall not prevent BNYM from so acting.
(g) The Trust shall furnish BNYM with any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNYM in the performance of its duties hereunder, including, without limitation, the amounts or written formula for calculating the amounts and times of accrual of liabilities and expenses for each Fund. BNYM shall not be required to include as liabilities and expenses, nor as a reduction of net asset value, any accrual for any federal, state, or foreign income taxes unless the Trust shall have specified to BNYM the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. The Trust shall also furnish BNYM with bid, offer, or market values of the portfolio securities (“"Securities”") of any Fund if BNYM notifies the Trust that same are not available to BNYM from a security pricing or similar service utilized, or subscribed to, by BNYM which BNYM in its judgment deems reliable at the time such information is required for calculations hereunder. At any time and from time to time, the Trust also may furnish BNYM with bid, offer, or market values of Securities and instruct BNYM to use such information in its calculations hereunder. BNYM shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any securities pricing or similar service. In no event shall BNYM 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 Trust.
(h) BNYM may apply to an authorized officer of the Trust for written instructions with respect to any matter arising in connection with BNYM’s 's performance hereunder for the Trust, and BNYM shall not be liable for any action taken or omitted to be taken by it in good faith and without negligence or willful misconduct in accordance with such instructions. Such application for instructions may, at the option of BNYM, set forth in writing any action proposed to be taken or omitted to be taken by BNYM with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNYM shall not be liable for any action taken or omitted to be taken in good faith and without negligence, reckless disregard, or willful misconduct in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, BNYM has received written instructions in response to such application specifying the action to be taken or omitted.
(i) If BNYM shall be in doubt as to any question of law pertaining to any action it should or should not take, BNYM may, with prior notice to the Trust, request advice from outside counsel of its own choosing (who may be counsel for the Trust, the Trust’s 's investment adviser or BNYM, at the option of BNYM), provided, however, that the Trust may request BNYM 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 Trust or its investment advisor shall be borne by the Trust on behalf of the applicable Fund; expense of other counsel to BNYM shall be borne by BNYM.
(j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNYM shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Trust of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, any Fund (ii) the taxable nature or effect on 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 any Fund to its shareholders, or (iv) the effect under any federal, state, or foreign income tax laws of any Fund making or not making any distribution or dividend payment, or any election with respect thereto.
(k) BNYM shall have no 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 BNYM in connection with this Agreement.
(l) BNYM, 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 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 the liabilities and 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 effected by or on behalf of the Trust. In the event BNYM’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 BNYM which BNYM in its reasonable judgment deems reliable, BNYM 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. Without limiting the generality of the foregoing, BNYM shall not be required to inquire into any valuation of securities or other assets by the Trust or any third party described in this paragraph (l) even though BNYM 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) BNYM, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to any Fund is or will be actually paid, but will accrue such interest until otherwise instructed by the Trust.
(n) BNYM 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 BNYM, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services (a “Force Majeure Event”), provided that BNYM has established and maintained a disaster recovery and contingency plans and systems as described in Section 4(o) below or, if not, that such delay or error would have occurred even if BNYM had established and maintained such plans and systemsservices. Nor shall BNYM 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 BNYM to supply any instructions, explanations, information, specifications or documentation deemed reasonably necessary by BNYM in the performance of its duties under this Agreement.
(o) BNYM will maintain throughout the term of this Agreement, such disaster recovery and contingency plans and systems as it reasonably believes to be necessary and appropriate to recover its operations from the occurrence of a Force Majeure Event and which are consistent with the requirements of any statute, regulation or rule to which it is subject that imposes business resumption and contingency planning standards. BNYM shall employ commercially reasonable efforts to resume performance as soon as practicable under the circumstances, following the occurrence of a Force Majeure Event.
Appears in 2 contracts
Samples: Fund Administration and Accounting Agreement (First Trust Exchange-Traded Fund Iv), Fund Administration and Accounting Agreement (First Trust Exchange-Traded Fund Iv)
Duties and Obligations of BNYM. (a) Subject to the direction and control of the Trust’s 's Trustees and the provisions of this Agreement, BNYM shall provide 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 //attached hereto.
(b) In performing hereunder, BNYM shall provide, at its expense, office space, facilities, equipment and personnel.
(c) BNYM shall not provide any services relating to the management, investment advisory or sub-advisory functions of the Trust, distribution of shares of any Fund, maintenance of the Trust’s 's financial records, except to the extent specifically set forth herein or the schedules hereto or other services normally performed by the Trusts’ ' respective counsel or independent auditors.
(d) Upon receipt of the Trust’s 's prior written consent (which shall not be unreasonably withheld), BNYM 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. BNYM shall bear any costs and expenses associated with BNYM’s 's delegation to such delegees and agents. 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. BNYM 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 BNYM and utilized hereunder so long as BNYM acts in good faith and without negligence or willful misconduct in the selection or retention of such delegee or agent, provided, however, that BNYM shall use commercially reasonable efforts to pursue any rights or remedies in respect of such loss or damage which BNYM may have against any such unaffiliated delegee or agent in the event of its default; any recovery shall be for the account of the Trust and applicable Fund, and BNYM shall be reimbursed by the Trust on behalf of the applicable Fund for any cost incurred in pursuing the same. For purposes of this Agreement, BNYM shall be subject to the same standard of care with respect to and liable for, the actions and omissions of any such delegee or agent who is a BNYM affiliate to the same extent a BNYM’s 's direct actions or omissions under this Agreement.
(e) The Trust shall direct cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) and transfer agent to cooperate with BNYM and to provide BNYM, upon reasonable request, with such information or documents relating to the Trust as is within the possession or knowledge of such persons, in order to enable BNYM to perform its duties hereunder. In connection with its duties hereunder, BNYM shall be entitled to rely, and shall be held harmless by the Trust when acting in reasonable reliance, upon the instructions, advice or any documents provided to BNYM from (i) a person reasonably believed by BNYM to have been identified by the Trust as authorized to give advice on behalf of the Trust or its advisors (each an “"Authorized Person”"), (ii) Trust counsel, (iii) the Trust’s 's independent accountants, (iv) the Trust’s 's adviser and (v) the Trust’s 's distributor. BNYM shall not be liable for any loss, damage or expense resulting from or arising out of the failure of the Trust to cause any information, documents or advice from legal counsel or independent accountants to be provided to BNYM as provided herein. All fees or costs charged by such persons shall be borne by the applicable Fund.
(f) Nothing in this Agreement shall limit or restrict BNYM, any affiliate of BNYM 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, BNYM may be required to review or calculate amounts due BNYM or its affiliates from the Trust and its respective Funds, and agrees that such conflicting interests shall not prevent BNYM from so acting.
(g) The Trust shall furnish BNYM with any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNYM in the performance of its duties hereunder, including, without limitation, the amounts or written formula for calculating the amounts and times of accrual of liabilities and expenses for each Fund. BNYM shall not be required to include as liabilities and expenses, nor as a reduction of net asset value, any accrual for any federal, state, or foreign income taxes unless the Trust shall have specified to BNYM the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. The Trust shall also furnish BNYM with bid, offer, or market values of the portfolio securities (“"Securities”") of any Fund if BNYM notifies the Trust that same are not available to BNYM from a security pricing or similar service utilized, or subscribed to, by BNYM which BNYM in its judgment deems reliable at the time such information is required for calculations hereunder. At any time and from time to time, the Trust also may furnish BNYM with bid, offer, or market values of Securities and instruct BNYM to use such information in its calculations hereunder. BNYM shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any securities pricing or similar service. In no event shall BNYM 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 Trust.
(h) BNYM may apply to an authorized officer of the Trust for written instructions with respect to any matter arising in connection with BNYM’s 's performance hereunder for the Trust, and BNYM shall not be liable for any action taken or omitted to be taken by it in good faith and without negligence or willful misconduct in accordance with such instructions. Such application for instructions may, at the option of BNYM, set forth in writing any action proposed to be taken or omitted to be taken by BNYM with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNYM shall not be liable for any action taken or omitted to be taken in good faith and without negligence, reckless disregard, negligence or willful misconduct in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, BNYM has received written instructions in response to such application specifying the action to be taken or omitted.
(i) If BNYM shall be in doubt as to any question of law pertaining to any action it should or should not take, BNYM may, with prior notice to the Trust, request advice from outside counsel of its own choosing (who may be counsel for the Trust, the Trust’s 's investment adviser or BNYM, at the option of BNYM), provided, however, that the Trust may request BNYM 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 Trust or its investment advisor shall be borne by the Trust on behalf of the applicable Fund; expense of other counsel to BNYM shall be borne by BNYM.
(j) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNYM shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Trust of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, any Fund (ii) the taxable nature or effect on 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 any Fund to its shareholders, or (iv) the effect under any federal, state, or foreign income tax laws of any Fund making or not making any distribution or dividend payment, or any election with respect thereto.
(k) BNYM shall have no 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 BNYM in connection with this Agreement.
(l) BNYM, 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 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 the liabilities and 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 effected by or on behalf of the Trust. In the event BNYM’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 BNYM which BNYM in its reasonable judgment deems reliable, BNYM 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. Without limiting the generality of the foregoing, BNYM shall not be required to inquire into any valuation of securities or other assets by the Trust or any third party described in this paragraph (l1) even though BNYM 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) BNYM, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to any Fund is or will be actually paid, but will accrue such interest until otherwise instructed by the Trust.
(n) BNYM 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 BNYM, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services (a “"Force Majeure Event”"), provided that BNYM has established and maintained a disaster recovery and contingency plans and systems as described in Section 4(o) below or, if not, that such delay or error would have occurred even if BNYM had established and maintained such plans and systems. Nor shall BNYM 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 BNYM to supply any instructions, explanations, information, specifications or documentation deemed reasonably necessary necessaiy by BNYM in the performance of its duties under this Agreement.
(o) BNYM will maintain throughout the term of this Agreement, such disaster recovery and contingency plans and systems as it reasonably believes to be necessary necessaiy and appropriate to recover its operations from the occurrence of a Force Majeure Event and which are consistent with the requirements of any statute, regulation or rule to which it is subject that imposes business resumption and contingency planning standards. BNYM shall employ commercially reasonable efforts to resume performance as soon as practicable under the circumstances, following the occurrence of a Force Majeure Event.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (First Trust Exchange-Traded Fund Viii)
Duties and Obligations of BNYM. (a) Subject to the direction and control of the Trusteach Fund’s Trustees Board and the provisions of this Agreement, BNYM shall provide to the Trust each Fund (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, BNYM shall provide, at its expense, office space, facilities, equipment and personnel.
(c) Except to the extent set forth on Schedule I, BNYM shall not provide any services relating to the management, investment advisory or sub-advisory functions of the Trustany Fund, distribution of shares of any Fund, maintenance of the Trustany Fund’s financial records, except to the extent specifically set forth herein or the schedules hereto records or other services normally performed by the TrustsFunds’ respective counsel or independent auditors.
(d) Upon receipt of the Trusta Fund’s prior written consent (which shall not be unreasonably withheld), BNYM 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. BNYM shall bear any costs and expenses associated with BNYM’s delegation to such delegees and agents. Notwithstanding the foregoing, no Trust Fund consent shall be required for any such delegation to any other subsidiary of The Bank of New York Mellon Corporation. BNYM 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 BNYM and utilized hereunder so long as BNYM acts in good faith and without negligence or willful misconduct in the selection or and retention of such delegee or agent, provided, however, that . BNYM shall use commercially reasonable efforts bear any costs and expenses associated with BNYM’s delegation to pursue any rights or remedies in respect of such loss or damage which BNYM may have against any such unaffiliated delegee or agent in the event of its default; any recovery shall be for the account of the Trust delegees and applicable Fund, and BNYM shall be reimbursed by the Trust on behalf of the applicable Fund for any cost incurred in pursuing the sameagents. For purposes of this Agreement, BNYM BNY shall be subject to the same standard of care with respect to to, and liable for, the actions and omissions of any such delegee or agent who is a BNYM affiliate (as such term is defined in Regulation W issued by the Board of Governors of the Federal Reserve System (12 C.F.R. 223), as amended) to the same extent a as BNYM’s direct actions or omissions under this Agreement.
(e) The Trust Each Fund shall direct 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 BNYM and to provide the BNYM, upon reasonable request, with such information or information, documents and advice relating to the Trust such Fund as is within the possession or knowledge of such persons, and which in the opinion of the BNYM, is necessary in order to enable BNYM it to perform its duties hereunder. In connection with its duties hereunder, The BNYM shall not be entitled responsible for, under any duty to relyinquire into, and shall or be held harmless by deemed to make any assurances with respect to the Trust when acting upon the instructionsaccuracy, validity or propriety of any information, documents or advice or any documents provided to the BNYM from (i) a person identified by the Trust as authorized to give advice on behalf any of the Trust or its advisors (each an “Authorized Person”), (ii) Trust counsel, (iii) the Trust’s independent accountants, (iv) the Trust’s adviser and (v) the Trust’s distributoraforementioned persons. The BNYM shall not be liable for any loss, damage or expense resulting from or arising out of the failure of the Trust Fund to cause any information, documents or advice from legal counsel or independent accountants to be provided to the BNYM as provided hereinherein 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 applicable appropriate Fund. In the event that any services performed by the BNYM hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNYM which the BNYM in its reasonable judgment deems reliable, the BNYM 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 BNYM, any BNYM affiliate (as such term is defined in Regulation W issued by the Board of BNYM or Governors of the Federal Reserve System (12 C.F.R. 223), as amended), 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 same or all of the services provided hereunder. The Trust acknowledges that in performing services under this Agreement, BNYM may be required to review or calculate amounts due BNYM or its affiliates from the Trust and its respective Funds, and agrees that such conflicting interests shall not prevent BNYM from so acting.
(g) The Trust Subject to the provisions of this Agreement, BNYM shall furnish BNYM with any compute the net asset value per share of the Fund and all instructions, explanations, information, specifications shall value the securities held by the Fund at such times and documentation deemed reasonably necessary by BNYM dates and in the performance of its duties hereunder, including, without limitation, manner specified in the amounts or written formula for calculating the amounts and times of accrual of liabilities and expenses for each Fund. BNYM shall not be required to include as liabilities and expenses, nor as a reduction of net asset value, any accrual for any federal, state, or foreign income taxes unless the Trust shall have specified to BNYM the precise amount then currently effective Prospectus of the same to be included Fund, except that notwithstanding any language in liabilities and expenses or used to reduce net asset value. The Trust shall also furnish BNYM with bidthe Prospectus, offer, or market values of the portfolio securities (“Securities”) of any Fund if BNYM notifies the Trust that same are not available to BNYM from a security pricing or similar service utilized, or subscribed to, by BNYM which BNYM in its judgment deems reliable at the time such information is required for calculations hereunder. At any time and from time to time, the Trust also may furnish BNYM with bid, offer, or market values of Securities and instruct BNYM to use such information in its calculations hereunder. BNYM shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any securities pricing or similar service. In no event shall BNYM 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. BNYM 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 BNYM in writing and thereafter shall either furnish BNYM at all appropriate times with the values of such securities and the Fund’s net asset value, or subject to the prior approval of BNYM, instruct BNYM 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 BNYM, instruct BNYM 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 Trustmethod of valuation of securities and the method of computing net asset value.
(h) The Fund shall furnish BNYM with any and all instructions, explanations, information, specifications and documentation deemed necessary by BNYM 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. BNYM 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 BNYM 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 BNYM with bid, offer, or market values of Securities if BNYM notifies such Fund that same are not available to BNYM from a security pricing or similar service utilized, or subscribed to, by BNYM which BNYM in its judgment deems reliable at the time such information is required pursuant to the Fund’s valuation procedures for calculations hereunder. At any time and from time to time, the Fund also may furnish BNYM with bid, offer, or market values of Securities and instruct BNYM to use such information in its calculations hereunder. BNYM may, if required by a Fund’s valuation procedures and at such Fund’s cost and expense, but shall at no time be required or obligated to, commence or maintain utilization of, or subscriptions to, particular securities pricing or similar services provided however, that BNYM will promptly notify the applicable Fund if BNYM is unable to commence or maintain utilization of or subscription to, any particular securities pricing or similar service which is required pursuant to such Fund’s valuation procedures.
(i) BNYM may apply to an officer or duly authorized officer agent of the Trust any Fund for written instructions with respect to any matter arising in connection with BNYM’s performance hereunder for the Trustsuch Fund, and BNYM shall not be liable for any action taken or omitted to be taken by it in good faith and without negligence or willful misconduct in accordance with such instructions. Such application for instructions may, at the option of BNYM, set forth in writing any action proposed to be taken or omitted to be taken by BNYM with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNYM shall not be liable for any action taken or omitted to be taken in good faith and without negligence, reckless disregard, or willful misconduct in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, BNYM has received written instructions in response to such application specifying the action to be taken or omitted.
(ij) If BNYM shall be in doubt as to any question of law pertaining to any action it should or should not take, BNYM may, may consult with prior notice to the Trust, request advice from outside counsel of its own choosing (who may be counsel for the Trust, the Trust’s investment adviser or BNYM, at the option of BNYM), provided, however, that the Trust may request BNYM 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 Trust appropriate Fund (at such Fund’s expense) or its investment advisor own counsel (at its own expense) and shall be borne fully protected with respect to anything done or omitted by it in good faith in accordance with the Trust on behalf advice or opinion of the applicable Fund; expense of counsel to such counsel, provided that BNYM shall be borne by BNYMexercises reasonable care in carrying out any such advice or opinion.
(jk) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNYM shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, determine or advise or notify the Trust any Fund of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, any Fund a Fund, (ii) the taxable nature or effect on any 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 any a Fund to its shareholders, ; or (iv) the effect under any federal, state, or foreign income tax laws of any a Fund making or not making any distribution or dividend payment, or any election with respect thereto.
(kl) BNYM shall have no 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 BNYM in connection with this Agreement.
(lm) BNYM, 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 any Authorized Person on behalf of the Trust 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 the Series’ liabilities and expenses of any Fundexpenses; 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 Fund shares of any Fund effected by or on behalf of the Trusta Fund. In the event BNYM’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 BNYM which BNYM in its reasonable judgment deems reliable, BNYM 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. Without limiting the generality of the foregoing, BNYM shall not be required to inquire into any valuation of securities or other assets by the Trust a Fund or any third party described in this paragraph (lm) even though BNYM 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) BNYM, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to any a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by the Trustsuch Fund.
(no) BNYM 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 BNYM, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services (a “Force Majeure Event”), provided that BNYM has established and maintained a disaster recovery and contingency plans and systems as described in Section 4(o) below or, if not, that such delay or error would have occurred even if BNYM had established and maintained such plans and systems. Nor shall BNYM 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 BNYM to supply any instructions, explanations, information, specifications or documentation deemed reasonably necessary by BNYM in the performance of its duties under this Agreement.
(op) BNYM will maintain throughout the term of this Agreement, such disaster recovery and contingency plans and systems as it reasonably believes to be necessary and appropriate to recover its operations from the occurrence of a Force Majeure Event and which are consistent with the requirements of any statute, regulation or rule to which it is subject that imposes business resumption and contingency planning standards. BNYM shall employ commercially reasonable efforts to resume performance as soon as practicable under the circumstances, following the occurrence of a Force Majeure Event.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (DBX ETF Trust)
Duties and Obligations of BNYM. (a) Subject to the direction and control of the Trusteach Fund’s Trustees Board and the provisions of this Agreement, BNYM shall provide to the Trust each Fund (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, BNYM shall provide, at its expense, office space, facilities, equipment and personnel.
(c) BNYM shall not provide any services relating to the management, investment advisory or sub-advisory functions of the Trustany Fund, distribution of shares of any Fund, maintenance of the Trustany Fund’s financial records, except to the extent specifically set forth herein or the schedules hereto records or other services normally performed by the TrustsFunds’ respective counsel or independent auditors.
(d) Upon receipt of the Trusta Fund’s prior written consent (which shall not be unreasonably withheld), BNYM 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. BNYM shall bear any costs and expenses associated with BNYM’s delegation to such delegees and agents. Notwithstanding the foregoing, no Trust Fund consent shall be required for any such delegation to any other subsidiary of The Bank of New York Mellon Corporation. Company, Inc. BNYM 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 BNYM and utilized hereunder so long as BNYM acts in good faith and without negligence or willful wilful misconduct in the selection or retention of such delegee or agent, provided, however, that BNYM shall use commercially reasonable efforts to pursue any rights or remedies in respect of such loss or damage which BNYM may have against any such unaffiliated delegee or agent in the event of its default; any recovery shall be for the account of the Trust and applicable Fund, and BNYM shall be reimbursed by the Trust on behalf of the applicable Fund for any cost incurred in pursuing the same. For purposes of this Agreement, BNYM shall be subject to the same standard of care with respect to and liable for, the actions and omissions of any such delegee or agent who is a BNYM affiliate to the same extent a BNYM’s direct actions or omissions under this Agreement.
(e) The Trust Each Fund shall direct 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 BNYM and to provide the BNYM, upon reasonable request, with such information or information, documents and advice relating to the Trust such Fund as is within the possession or knowledge of such persons, and which in the opinion of the BNYM, is necessary in order to enable BNYM it to perform its duties hereunder. In connection with its duties hereunder, The BNYM shall not be entitled responsible for, under any duty to relyinquire into, and shall or be held harmless by deemed to make any assurances with respect to the Trust when acting upon the instructionsaccuracy, validity or propriety of any information, documents or advice or any documents provided to the BNYM from (i) a person identified by the Trust as authorized to give advice on behalf any of the Trust or its advisors (each an “Authorized Person”), (ii) Trust counsel, (iii) the Trust’s independent accountants, (iv) the Trust’s adviser and (v) the Trust’s distributoraforementioned persons. The BNYM shall not be liable for any loss, damage or expense resulting from or arising out of the failure of the Trust Fund to cause any information, documents or advice from legal counsel or independent accountants to be provided to the BNYM as provided hereinherein 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 applicable appropriate Fund. In the event that any services performed by the BNYM hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by the BNYM which the BNYM in its reasonable judgment deems reliable, the BNYM 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 BNYM, any affiliate of BNYM 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 same or all of the services provided hereunder. The Trust acknowledges that in performing services under this Agreement, BNYM may be required to review or calculate amounts due BNYM or its affiliates from the Trust and its respective Funds, and agrees that such conflicting interests shall not prevent BNYM from so acting.
(g) The Trust Subject to the provisions of this Agreement, BNYM shall furnish BNYM with any compute the net asset value per share of the Fund and all instructions, explanations, information, specifications shall value the securities held by the Fund at such times and documentation deemed reasonably necessary by BNYM dates and in the performance of its duties hereunder, including, without limitation, manner specified in the amounts or written formula for calculating the amounts and times of accrual of liabilities and expenses for each Fund. BNYM shall not be required to include as liabilities and expenses, nor as a reduction of net asset value, any accrual for any federal, state, or foreign income taxes unless the Trust shall have specified to BNYM the precise amount then currently effective Prospectus of the same to be included Fund, except that notwithstanding any language in liabilities and expenses or used to reduce net asset value. The Trust shall also furnish BNYM with bidthe Prospectus, offer, or market values of the portfolio securities (“Securities”) of any Fund if BNYM notifies the Trust that same are not available to BNYM from a security pricing or similar service utilized, or subscribed to, by BNYM which BNYM in its judgment deems reliable at the time such information is required for calculations hereunder. At any time and from time to time, the Trust also may furnish BNYM with bid, offer, or market values of Securities and instruct BNYM to use such information in its calculations hereunder. BNYM shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any securities pricing or similar service. In no event shall BNYM 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. BNYM 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 BNYM in writing and thereafter shall either furnish BNYM at all appropriate times with the values of such securities and the Fund’s net asset value, or subject to the prior approval of BNYM, instruct BNYM 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 BNYM, instruct BNYM 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 Trustmethod of valuation of securities and the method of computing net asset value.
(h) The Fund shall furnish BNYM with any and all instructions, explanations, information, specifications and documentation deemed necessary by BNYM 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. BNYM 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 BNYM 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 BNYM with bid, offer, or market values of Securities if BNYM notifies such Fund that same are not available to BNYM from a security pricing or similar service utilized, or subscribed to, by BNYM which BNYM 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 BNYM with bid, offer, or market values of Securities and instruct BNYM to use such information in its calculations hereunder. BNYM 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.
(i) BNYM may apply to an officer or duly authorized officer agent of the Trust any Fund for written instructions with respect to any matter arising in connection with BNYM’s performance hereunder for the Trustsuch Fund, and BNYM shall not be liable for any action taken or omitted to be taken by it in good faith and without negligence or willful misconduct in accordance with such instructions. Such application for instructions may, at the option of BNYM, set forth in writing any action proposed to be taken or omitted to be taken by BNYM with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNYM shall not be liable for any action taken or omitted to be taken in good faith and without negligence, reckless disregard, or willful misconduct in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, BNYM has received written instructions in response to such application specifying the action to be taken or omitted.
(ij) If BNYM shall be in doubt as to any question of law pertaining to any action it should or should not take, BNYM may, may consult with prior notice to the Trust, request advice from outside counsel of its own choosing (who may be counsel for the Trust, the Trust’s investment adviser or BNYM, at the option of BNYM), provided, however, that the Trust may request BNYM 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 Trust appropriate Fund or its investment advisor own counsel, at such Fund’s expense, and shall be borne fully protected with respect to anything done or omitted by it in good faith in accordance with the Trust on behalf advice or opinion of the applicable Fund; expense of counsel to BNYM shall be borne by BNYMsuch counsel.
(jk) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNYM shall have no duty or obligation to with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Trust any Fund of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, any Fund a Fund, (ii) the taxable nature or effect on any 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 any a Fund to its shareholders, ; or (iv) the effect under any federal, state, or foreign income tax laws of any a Fund making or not making any distribution or dividend payment, or any election with respect thereto.
(kl) BNYM shall have no 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 BNYM in connection with this Agreement.
(lm) BNYM, 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 any Authorized Person on behalf of the Trust 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 the Series’ liabilities and expenses of any Fundexpenses; 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 Fund shares of any Fund effected by or on behalf of the Trusta Fund. In the event BNYM’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 BNYM which BNYM in its reasonable judgment deems reliable, BNYM 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. Without limiting the generality of the foregoing, BNYM shall not be required to inquire into any valuation of securities or other assets by the Trust a Fund or any third party described in this paragraph (lm) even though BNYM 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) BNYM, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to any a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by the Trustsuch Fund.
(no) BNYM 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 BNYM, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services (a “Force Majeure Event”), provided that BNYM has established and maintained a disaster recovery and contingency plans and systems as described in Section 4(o) below or, if not, that such delay or error would have occurred even if BNYM had established and maintained such plans and systemsservices. Nor shall BNYM 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 BNYM to supply any instructions, explanations, information, specifications or documentation deemed reasonably necessary by BNYM in the performance of its duties under this Agreement.
(o) BNYM will maintain throughout the term of this Agreement, such disaster recovery and contingency plans and systems as it reasonably believes to be necessary and appropriate to recover its operations from the occurrence of a Force Majeure Event and which are consistent with the requirements of any statute, regulation or rule to which it is subject that imposes business resumption and contingency planning standards. BNYM shall employ commercially reasonable efforts to resume performance as soon as practicable under the circumstances, following the occurrence of a Force Majeure Event.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (IndexIQ Active ETF Trust)
Duties and Obligations of BNYM. (a) Subject to the direction and control of the Trust’s Trustees Atlantic and the provisions of this Agreement, BNYM shall provide to the Trust (i) Fund, with respect to each Series, the administrative services set forth on Schedule I attached hereto subadministration and (ii) the valuation and computation services listed on Schedule II attached heretoherein.
(b) In performing hereunder, BNYM shall provide, at its expense, office space, facilities, equipment and personnel.
(c) BNYM shall not provide any services relating to the management, investment advisory or sub-advisory functions of the Trustany Fund, distribution of shares of any the Fund, maintenance of the TrustFund’s financial recordsrecords (other than in accordance with Section 5 with respect to those listed in Schedule C, except to the extent specifically set forth if any) or any other services other than those listed herein or the schedules hereto or other services normally otherwise agreed to be performed by the Trusts’ respective counsel or independent auditorsBNYM.
(d) Upon receipt of the TrustAtlantic’s prior written consent (which shall not be unreasonably withheld), BNYM 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 shall discharge BNYM shall bear any costs and expenses associated with BNYM’s delegation from its obligations to such delegees and agentsprovide or secure the provision of services hereunder. Notwithstanding the foregoing, no Trust Atlantic consent shall not be required for any such delegation to any other subsidiary of The Bank of New York Mellon CorporationCorporation and BNYM shall remain liable for the acts or omissions of such affiliate as if performed directly by BNYM as contemplated hereunder. Notwithstanding any such delegation with consent, BNYM shall not be liable to the Trust or any Fund hereunder 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 BNYM and utilized hereunder so long as BNYM acts in good faith and without negligence negligence, wilful misconduct or willful misconduct reckless disregard of its duties hereunder in the selection or retention of such delegee or agent, provided, however, that BNYM .
(e) Atlantic shall cause its officers and use commercially reasonable efforts to pursue any rights or remedies in respect of such loss or damage which BNYM may have against any such unaffiliated delegee or agent in cause the event of its default; any recovery shall be for the account of the Trust and applicable Fund, and BNYM shall be reimbursed by the Trust on behalf of the applicable Fund for any cost incurred in pursuing the same. For purposes of this Agreement, BNYM shall be subject to the same standard of care with respect to and liable for, the actions and omissions of any such delegee or agent who is a BNYM affiliate to the same extent a BNYM’s direct actions or omissions under this Agreement.
(e) The Trust shall direct its officers, advisorsinvestment adviser, sponsor, distributor, legal counsel, independent accountants, current administrator (if any) transfer agent, and transfer agent any other service provider to cooperate with BNYM and to provide BNYM, upon reasonable request, with such information or information, documents and advice relating to the Trust Fund as is within the possession or knowledge of such persons, and which in the reasonable opinion of BNYM, is necessary in order to enable BNYM it to perform its duties hereunder. In connection with its duties hereunder, BNYM shall not be entitled responsible for, under any duty to relyinquire into, and shall or be held harmless by deemed to make any assurances with respect to the Trust when acting upon the instructionsaccuracy, validity or propriety of any information, documents or advice or any documents provided to BNYM from (i) a person identified by the Trust as authorized to give advice on behalf any of the Trust or its advisors (each an “Authorized Person”), (ii) Trust counsel, (iii) the Trust’s independent accountants, (iv) the Trust’s adviser and (v) the Trust’s distributoraforementioned persons. BNYM shall not be liable for any loss, damage or expense resulting from or arising out of the failure of Atlantic or the Trust Fund to cause any information, documents or advice from legal counsel or independent accountants to be provided to BNYM as provided hereinherein and shall be held harmless by Atlantic when acting in reliance upon such information, documents or advice relating to the Fund. All fees or costs charged by such persons shall not be borne by BNYM. In the applicable Fundevent that any services performed by BNYM hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by BNYM which BNYM in its reasonable judgment deems reliable, BNYM 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 BNYM, any affiliate of BNYM 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 same or all of the services provided hereunder. The Trust acknowledges that in performing services under this Agreement, BNYM may be required to review or calculate amounts due BNYM or its affiliates from the Trust and its respective Funds, and agrees that such conflicting interests shall not prevent BNYM from so acting.
(g) The Trust Subject to the provisions of this Agreement, BNYM shall furnish BNYM with any compute the net asset value per share of each Series and all instructions, explanations, information, specifications shall value the assets and documentation deemed reasonably necessary liabilities held by BNYM each Series at such times and dates and in the performance of its duties hereunder, including, without limitation, manner specified in the amounts or written formula for calculating the amounts and times of accrual of liabilities and expenses for each Fund. BNYM shall not be required to include as liabilities and expenses, nor as a reduction of net asset value, any accrual for any federal, state, or foreign income taxes unless the Trust shall have specified to BNYM the precise amount then currently effective Prospectus of the same applicable Series in accordance with the Trust's valuation procedures actually provided to be included BNYM, except that notwithstanding any language in liabilities and expenses or used to reduce net asset value. The Trust shall also furnish BNYM with bidthe Prospectus, offer, or market values of the portfolio securities (“Securities”) of any Fund if BNYM notifies the Trust that same are not available to BNYM from a security pricing or similar service utilized, or subscribed to, by BNYM which BNYM in its judgment deems reliable at the time such information is required for calculations hereunder. At any time and from time to time, the Trust also may furnish BNYM with bid, offer, or market values of Securities and instruct BNYM to use such information in its calculations hereunder. BNYM shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any securities pricing or similar service. In no event shall BNYM 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 responsibility of the Fund. BNYM shall provide a report of such net asset value to Atlantic and Authorized Participants at the respective times set forth in Schedule C. To the extent valuation of securities or computation of a net asset value as specified in a Series’ then currently effective Prospectus and the Trust's valuation procedures actually provided to BNYM is at any time inconsistent with any applicable laws or regulations, Atlantic shall immediately so notify BNYM in writing and thereafter shall either furnish BNYM at all appropriate times with the values of such securities and the Series’ net asset value, or subject to the prior approval of BNYM, instruct BNYM in writing to value securities and compute net asset value in a manner which Atlantic then represents in writing to be consistent with all applicable laws and regulations. Atlantic may also from time to time, subject to the prior approval of BNYM, instruct BNYM 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, Atlantic 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 applicable Series and the Trust's valuation procedures. The Fund shall have sole responsibility for determining the method of valuation of securities and the method of computing net asset value.
(h) BNYM shall (i) prepare workpapers supporting the preparation of federal, state and local income and excise tax returns for each Series for review and approval by each Series’ independent auditors, prepare federal, state, and local income tax returns in coordination with each Series’ independent accountants and prepare and file tax extensions; (ii) calculate required Internal Revenue Code of 1986, as amended (“IRC”), Subchapter M and excise tax distributions; (iii) .perform ongoing wash sales review (i.e., purchases and sales of Series investments within 30 days of each other); (iv) prepare year-end shareholder tax information and complete calendar year-end ICI primary and secondary layouts concerning the characterization of distributions and distribute the applicable reports to the market; (v) prepare tax workpapers documenting book-to-tax differences, including wash sale deferrals, reversals and reclasses, post-October analysis for capital gain/loss and currency gain/loss, IRC Section 1256 adjustments, analysis for investments in PFICs so identified by Atlantic and market discount reclass analysis with respect to municipal securities and (vi) prepare Form 1099s with respect to the Fund’s trustees and file such forms upon the approval of the Fund’s Treasurer.
(i) Atlantic shall furnish BNYM with any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNYM 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. BNYM 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 Atlantic shall have specified to BNYM the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. Atlantic shall also furnish BNYM with bid, offer, or market values of securities if BNYM notifies Atlantic that same are not available to BNYM from a security pricing or similar service utilized, or subscribed to, by BNYM which BNYM in its reasonable judgment deems reliable at the time such information is required for calculations hereunder. At any time and from time to time, Atlantic also may furnish BNYM with bid, offer, or market values of securities and instruct BNYM to use such information in its calculations hereunder. BNYM 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.
(j) BNYM may apply to an authorized officer of the Trust Atlantic for written instructions with respect to any matter arising in connection with BNYM’s performance hereunder for the Trustwith respect to a Series, and BNYM shall not be liable for any action taken or omitted to be taken by it in good faith and without negligence or willful misconduct in accordance with such instructions. Such application for instructions may, at the option of BNYMBNY, set forth in writing any action proposed to be taken or omitted to be taken by BNYM with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNYM shall not be liable for any action taken or omitted to be taken in good faith and without negligence, reckless disregard, or willful misconduct in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, BNYM has received written instructions in response to such application specifying the action to be taken or omitted.
(ik) If BNYM shall be in doubt as to any question of law pertaining to any action it should or should not take, BNYM may, may consult with prior notice to the Trust, request advice from outside counsel of its own choosing (who may be external counsel for the Trust, the Trust’s investment adviser or BNYMor, at the option of BNYM)Fund’s expense with approval by Atlantic, provided, however, that the Trust may request BNYM to obtain and consider advice of counsel for the Trust or its investment advisor before engaging counsel of its own choosing. Expense of with counsel to the Trust Fund or its investment advisor applicable Series, and shall be borne fully protected with respect to anything done or omitted by it in good faith in accordance with the Trust on behalf advice or opinion of the applicable Fund; expense of counsel to BNYM shall be borne by BNYMsuch counsel.
(jl) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached heretoAgreement, BNYM shall have no duty or obligation with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Trust any Fund of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, any Fund a Series, (ii) the taxable nature or effect on any Fund a Series 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 any Fund a Series to its shareholders, ; or (iv) the effect under any federal, state, or foreign income tax laws of any Fund a Series making or not making any distribution or dividend payment, or any election with respect thereto.
(km) BNYM shall have no 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 BNYM in connection with this Agreement.
(ln) BNYM, 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 any Authorized Person on behalf of the Trust Atlantic 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 the Series’ liabilities and expenses of any Fundexpenses; the amounts receivable and the amounts payable on the sale or purchase of Securitiessecurities; and amounts receivable or amounts payable for the sale or redemption of the shares of any Fund effected by or on behalf of the Trusta Series. In the event BNYM’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 BNYM which BNYM in its reasonable judgment deems reliable, BNYM 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. Without limiting the generality of the foregoing, BNYM shall not be required to inquire into any valuation of securities or other assets by the Trust a Series or any third party described in this paragraph (l) m), other than compliance with the Valuation Policies of the Fund, even though BNYM 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) BNYM, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to any a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by the TrustAtlantic.
(np) BNYM 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 BNYM, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services (a “Force Majeure Event”), provided that BNYM has established and maintained a disaster recovery and contingency plans and systems as described in Section 4(o) below or, if not, that such delay or error would have occurred even if BNYM had established and maintained such plans and systemsservices. Nor shall BNYM 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 BNYM (including any BNYM delegate other than a BNYM affiliate) to supply any instructions, explanations, information, specifications or documentation deemed reasonably necessary by BNYM in the performance of its duties under this Agreement.
(o) BNYM will maintain throughout the term of this Agreement, such disaster recovery and contingency plans and systems as it reasonably believes to be necessary and appropriate to recover its operations from . Upon the occurrence of a Force Majeure Event and which are consistent with the requirements of any statutesuch delay or failure, regulation or rule to which it is subject that imposes business resumption and contingency planning standards. BNYM shall employ use commercially reasonable efforts to resume performance as soon as practicable under the circumstances, following . BNYM shall provide standard information reporting based on data maintained by BNYM as reasonably requested by the occurrence of a Force Majeure EventFund’s chief compliance officer.
Appears in 1 contract
Samples: Subadministration Services Agreement (Forum ETF Trust)
Duties and Obligations of BNYM. (a) Subject to the direction and control of the Trust’s Trustees each Fund and the provisions of this Agreement, BNYM shall provide to the Trust such Fund (i) the administrative services set forth on Schedule I attached hereto hereto, and (ii) the valuation and computation services listed on Schedule II attached hereto.
(b) In performing hereunder, BNYM shall provide, at its expense, office space, facilities, equipment and personnel.
(c) BNYM shall not provide any services relating to the management, investment advisory or sub-advisory functions of the Trustany Fund, distribution of shares Shares of any Fund, maintenance of the Trust’s financial records, except to the extent specifically set forth herein or the schedules hereto or other services normally performed by the Trusts’ respective Fund’s counsel or independent auditors.
(d) Upon receipt of the Trusta Fund’s prior written consent (which shall not be unreasonably withheld), BNYM 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. BNYM shall bear any costs and expenses associated with BNYM’s delegation to such delegees and agents. Notwithstanding the foregoing, no Trust Fund’s consent shall be required for any such delegation to any other subsidiary of The Bank of New York Mellon Corporation. Company, Inc. (hereinafter a “BNYM Affiliate”) notwithstanding the domicile of such BNYM Affiliate, and BNYM 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 BNYM and utilized hereunder so long as BNYM acts in good faith and without negligence or willful misconduct in the selection or retention of such delegee or agent, provided, however, provided that BNYM shall use commercially reasonable efforts to pursue any rights or remedies in respect of such loss or damage which BNYM may have against any such unaffiliated delegee or agent in the event of its default; any recovery shall be liable for the account acts or omissions of any BNYM Affiliate to the Trust same extent it would be liable under the terms hereof had it committed such act or omission and applicable Fundnot delegated the same, and BNYM shall be reimbursed by the Trust on behalf of the applicable notify each affected Fund for any cost incurred in pursuing the same. For purposes of this Agreement, BNYM shall be subject to the same standard of care with respect to and liable for, the actions and omissions of upon any such delegee or agent who is delegation to a BNYM affiliate to the same extent a BNYM’s direct actions or omissions under this AgreementAffiliate.
(e) The Trust To the extent permitted by applicable laws and such information is not subject to any confidentiality obligation by the relevant party, each Fund shall direct 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 BNYM and to provide BNYM, upon reasonable request, with such information or information, documents and advice relating to the Trust that Fund as is within the possession or knowledge of such persons, persons in order to enable BNYM to perform its duties hereunder. In connection with its duties hereunder, BNYM shall be entitled reasonably to rely, and shall be held harmless by the Trust each Fund when acting in reliance, upon the instructions, documents or advice or any documents relating to a Fund provided to BNYM from (i) a person identified by the Trust as authorized to give advice on behalf any of the Trust or its advisors (each an “Authorized Person”), (ii) Trust counsel, (iii) the Trust’s independent accountants, (iv) the Trust’s adviser and (v) the Trust’s distributoraforementioned persons. BNYM shall not be liable for any loss, damage or expense resulting from or arising out of the failure of the Trust a Fund to cause any information, documents or advice from legal counsel or independent accountants to be provided to BNYM as provided herein, provided BNYM acts without negligence or willful misconduct. All fees or costs charged by such persons shall be borne by the applicable relevant Fund.
(f) Nothing in this Agreement shall limit or restrict BNYM, any affiliate of or BNYM Affiliate 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, 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, BNYM may be required to review or calculate amounts due BNYM or its affiliates from the Trust and its respective Funds, and agrees that such conflicting interests shall not prevent BNYM from so acting.
(g) The Trust Each Fund shall furnish BNYM with any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNYM 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 for each Fundexpenses. BNYM 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 Trust Fund shall have specified to BNYM the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. The Trust Each Fund shall also furnish BNYM with bid, offer, or market values of the portfolio securities (“Securities”) of any Fund assets if BNYM notifies the Trust such Fund that same are not available to BNYM from a security pricing or similar service utilized, or subscribed to, by BNYM which BNYM in its judgment deems reliable at the time such information is required for calculations hereunder. At any time and from time to time, the Trust Fund also may furnish BNYM with bid, offer, or market values of Securities assets and instruct BNYM to use such information in its calculations hereunder. BNYM shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any securities pricing or similar service. In no event shall BNYM 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 TrustFund.
(h) BNYM may apply to an authorized officer of the Trust Managing Owner for written instructions with respect to any matter arising in connection with BNYM’s performance hereunder for the Trustsuch Fund, and BNYM shall not be liable for any action taken or omitted to be not taken by it in good faith and without negligence or willful misconduct in accordance with such instructions. Such application for instructions may, at the option of BNYM, set forth in writing any action proposed to be taken or omitted to be taken by BNYM with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNYM shall not be liable for any action taken or omitted to be taken in good faith and without negligence, reckless disregard, or willful misconduct in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, BNYM has received written instructions in response to such application specifying the action to be taken or omitted.
(i) If BNYM may consult with counsel to a Fund or its own counsel and shall be fully protected with respect to anything done or omitted by it in doubt as to any question good faith after consultation with the Fund in accordance with the advice or opinion of law pertaining to any action it should or should not take, BNYM may, with prior notice to the Trust, request advice from outside counsel of its own choosing (who may be counsel for the Trust, the Trust’s investment adviser or BNYM, at the option of BNYM), provided, however, that the Trust may request BNYM 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 Trust or its investment advisor shall be borne by the Trust on behalf of the applicable Fund; expense of counsel to BNYM shall be borne by BNYMsuch counsel.
(j) Notwithstanding any other provision contained in this Agreement or Schedule Agreement, but to the extent expressly otherwise provided in Schedules I or II attached hereto, BNYM shall have no duty or obligation to with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Trust a Fund of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, any Fund such Fund, (ii) the taxable nature or effect on any 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 any such Fund to its shareholders, ; or (iv) the effect under any federal, state, foreign, or foreign other applicable income tax laws of any such Fund making or not making any distribution or dividend other payment, or any election with respect thereto.
(k) BNYM shall have no 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 BNYM in connection with this Agreement.
(l) BNYM, 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 any Authorized Person on behalf of the Trust 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 securitiesassets; the amounts or formula for calculating the amounts and times of accrual of the a Fund’s liabilities and expenses of any Fundexpenses; the amounts receivable and the amounts payable on the sale or purchase of Securitiesassets; and amounts receivable or amounts payable for the sale or redemption of the shares of any Fund Shares effected by or on behalf of the Trusta Fund. In the event BNYM’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 BNYM which BNYM in its reasonable judgment deems reliable, or from a broker-dealer selected by BNYM, BNYM 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. Without limiting the generality of the foregoing, BNYM shall not be required to inquire into any valuation of securities or other assets by the Trust a Fund or any third party described in this paragraph sub-section (lk) even though BNYM 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 issuersassets.
(ml) BNYM, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to any a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by the TrustFund.
(nm) Subject to the provisions of this sub-section (m), BNYM shall not be responsible for delays or errors which occur compute the net asset value per Share of each Fund and shall value the assets held by reason of circumstances beyond its control such Fund at such times and dates and in the performance manner specified in the then currently effective Prospectus of its duties under this Agreementsuch Fund, except that notwithstanding any language in the Prospectus, in no event shall BNYM 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 assets 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 BNYM in writing and thereafter shall either furnish BNYM at all appropriate times with the values of such assets and net asset value, or subject to the prior approval of BNYM, mechanical breakdownsinstruct BNYM in writing to value assets 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 BNYM, instruct BNYM in writing to compute the value of the assets or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services (net asset value in a “Force Majeure Event”), provided that BNYM has established and maintained a disaster recovery and contingency plans and systems manner other than as described in Section 4(o) below or, if not, that such delay or error would have occurred even if BNYM had established and maintained such plans and systems. Nor shall BNYM 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 assets and the method of computing net asset value.
(n) In providing the services hereunder BNYM is authorized to utilize any legal, tax or failures are caused other regulatory, compliance, or monitoring services, in each case not a BNYM Affiliate, reasonably selected and retained by the failure BNYM as a reliable provider of information. Each Fund agrees that BNYM shall not be liable for any loss, damage or expense incurred as a result of errors or omissions of any person(s) other than BNYM to supply any instructions, explanations, information, specifications or documentation deemed reasonably necessary vendor utilized by BNYM in the performance pursuant to this subsection 5(n), and that no such vendor shall be an agent or delegee of its duties under this AgreementBNYM.
(o) BNYM will maintain throughout the term of shall have no 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 BNYM in connection with this Agreement, such disaster recovery and contingency plans and systems as it reasonably believes to be necessary and appropriate to recover its operations from the occurrence of a Force Majeure Event and which are consistent with the requirements of any statute, regulation or rule to which it is subject that imposes business resumption and contingency planning standards. BNYM shall employ commercially reasonable efforts to resume performance as soon as practicable under the circumstances, following the occurrence of a Force Majeure Event.
Appears in 1 contract
Samples: Services Agreement (Market Vectors Commodity Trust)
Duties and Obligations of BNYM. (a) Subject to the direction and control of the Trust’s Trustees Board and the provisions of this Agreement, BNYM shall provide 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, BNYM shall provide, at its expense, office space, facilities, equipment and personnel.
(c) Except to the extent set forth on Schedule I, BNYM shall not provide any services relating to the management, investment advisory or sub-advisory functions of the Trust, distribution of shares of any Fundthe Trust, maintenance of the Trust’s Funds’ financial records, except to the extent specifically set forth herein records or the schedules hereto or other services normally performed by the Trusts’ respective Trust’s counsel or independent auditors.
(d) Upon receipt of the Trusta Fund’s prior written consent (which shall not be unreasonably withheld), BNYM 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. BNYM shall bear any costs and expenses associated with BNYM’s delegation to such delegees and agents. Notwithstanding the foregoing, no Trust Fund consent shall be required for any such delegation to any other subsidiary of The Bank of New York Mellon Corporation. BNYM 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 BNYM and utilized hereunder so long as BNYM acts in good faith and without negligence or willful misconduct in the selection or and retention of such delegee or agent, provided, however, that . BNYM shall use commercially reasonable efforts bear any costs and expenses associated with BNYM’s delegation to pursue any rights or remedies in respect of such loss or damage which BNYM may have against any such unaffiliated delegee or agent in the event of its default; any recovery shall be for the account of the Trust delegees and applicable Fund, and BNYM shall be reimbursed by the Trust on behalf of the applicable Fund for any cost incurred in pursuing the sameagents. For purposes of this Agreement, BNYM BNY shall be subject to the same standard of care with respect to to, and liable for, the actions and omissions of any such delegee or agent who is a BNYM affiliate (as such term is defined in Regulation W issued by the Board of Governors of the Federal Reserve System (12 C.F.R. 223), as amended) to the same extent a as BNYM’s direct actions or omissions under this Agreement.
(e) The Trust shall direct 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 BNYM and to provide BNYM, upon reasonable request, with such information or information, documents and advice relating to the Trust as is within the possession or knowledge of such persons, and which in the opinion of BNYM, is necessary in order to enable BNYM it to perform its duties hereunder. In connection with its duties hereunder, BNYM shall not be entitled responsible for, under any duty to relyinquire into, and shall or be held harmless by deemed to make any assurances with respect to the Trust when acting upon the instructionsaccuracy, validity or propriety of any information, documents or advice or any documents provided to BNYM from (i) a person identified by the Trust as authorized to give advice on behalf any of the Trust or its advisors (each an “Authorized Person”), (ii) Trust counsel, (iii) the Trust’s independent accountants, (iv) the Trust’s adviser and (v) the Trust’s distributoraforementioned persons. BNYM shall not be liable for any loss, damage or expense resulting from or arising out of the failure of the Trust to cause any information, documents or advice from legal counsel or independent accountants to be provided to BNYM as provided hereinherein 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 applicable appropriate Fund. In the event that any services performed by BNYM hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by BNYM which BNYM in its reasonable judgment deems reliable, BNYM 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 BNYM, any BNYM affiliate (as such term is defined in Regulation W issued by the Board of BNYM Governors of the Federal Reserve System (12 C.F.R. 223), as amended), 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 same or all of the services provided hereunder. The Trust acknowledges that in performing services under .
(g) Subject to the provisions of this Agreement, BNYM may 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 BNYM be required to review determine, or calculate amounts due 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. BNYM shall provide a report of such net asset value to each 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 its affiliates from computation of a net asset value as specified in a Fund’s then currently effective Prospectus is at any time inconsistent with any applicable laws or regulations, the Trust shall immediately so notify BNYM in writing and its respective Fundsthereafter shall either furnish BNYM at all appropriate times with the values of such securities and the Fund’s net asset value, or subject to the prior approval of BNYM, instruct BNYM in writing to value securities and agrees compute net asset value in a manner which the Trust then represents in writing to be consistent with all applicable laws and regulations. The Trust may also from time to time, subject to the prior approval of BNYM, instruct BNYM 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 conflicting interests instruction is consistent with all applicable laws and regulations and the then currently effective Prospectus of the Trust. The Trust shall not prevent BNYM from so actinghave sole responsibility for determining the method of valuation of securities and the method of computing net asset value.
(gh) The Trust shall furnish BNYM with any and all instructions, explanations, information, specifications and documentation deemed reasonably necessary by BNYM 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 for each Fundexpenses. BNYM 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 Trust shall have specified to BNYM the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. The Trust shall also furnish BNYM with bid, offer, or market values of the portfolio securities (“Securities”) of any Fund Securities if BNYM notifies the Trust that same are not available to BNYM from a security pricing or similar service utilized, or subscribed to, by BNYM which BNYM in its judgment deems reliable at the time such information is required pursuant to the Trust’s valuation procedures for calculations hereunder. At any time and from time to time, the Trust also may furnish BNYM with bid, offer, or market values of Securities and instruct BNYM to use such information in its calculations hereunder. BNYM may, if required by the Trust’s valuation procedures and at such Fund’s cost and expense, but shall at no time be required or obligated to to, commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service. In no event shall services; provided, however, that BNYM be required will promptly notify the applicable Fund if BNYM is unable to determine, commence or have any obligations with respect maintain utilization of or subscription to, whether a market price represents any fair particular securities pricing or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect similar service that is required pursuant to the issuer thereof, it being agreed that all such determinations and considerations shall be solely for the Trust’s valuation procedures.
(hi) BNYM may apply to an officer or duly authorized officer agent of the Trust for written instructions with respect to any matter arising in connection with BNYM’s performance hereunder for the Trust, and BNYM shall not be liable for any action taken or omitted to be taken by it in good faith and without negligence or willful misconduct in accordance with such instructions. Such application for instructions may, at the option of BNYM, set forth in writing any action proposed to be taken or omitted to be taken by BNYM with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and BNYM shall not be liable for any action taken or omitted to be taken in good faith and without negligence, reckless disregard, or willful misconduct in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, BNYM has received written instructions in response to such application specifying the action to be taken or omitted.
(ij) If BNYM shall be in doubt as to any question of law pertaining to any action it should or should not take, BNYM may, may consult with prior notice to the Trust, request advice from outside counsel of its own choosing (who may be counsel for the Trust, the Trust’s investment adviser or BNYM, at the option of BNYM), provided, however, that the Trust may request BNYM 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 Trust or its investment advisor own counsel, at the Trust’s expense, and shall be borne fully protected with respect to anything done or omitted by it in good faith in accordance with the Trust on behalf advice or opinion of the applicable Fund; expense of counsel to such counsel, provided that BNYM shall be borne by BNYMexercises reasonable care in carrying out any such advice or opinion.
(jk) Notwithstanding any other provision contained in this Agreement or Schedule I or II attached hereto, BNYM shall have no duty or obligation to with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Trust of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, any Fund a Fund, (ii) the taxable nature or effect on any 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 any a Fund to its shareholders, ; or (iv) the effect under any federal, state, or foreign income tax laws of any a Fund making or not making any distribution or dividend payment, or any election with respect thereto.
(kl) BNYM shall have no 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 BNYM in connection with this Agreement.
(lm) BNYM, 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 any Authorized Person on behalf of the Trust 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 the Series’ liabilities and expenses of any Fundexpenses; 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 Fund shares of any Fund effected by or on behalf of the Trusta Fund. In the event BNYM’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 BNYM which BNYM in its reasonable judgment deems reliable, BNYM 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. Without limiting the generality of the foregoing, BNYM shall not be required to inquire into any valuation of securities or other assets by the Trust a Fund or any third party described in this paragraph (lm) even though BNYM 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) BNYM, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to any a Fund is or will be actually paid, but will accrue such interest until otherwise instructed by the Trust.
(no) BNYM 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 BNYM, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services (a “Force Majeure Event”), provided that BNYM has established and maintained a disaster recovery and contingency plans and systems as described in Section 4(o) below or, if not, that such delay or error would have occurred even if BNYM had established and maintained such plans and systems. Nor shall BNYM 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 BNYM to supply any instructions, explanations, information, specifications or documentation deemed reasonably necessary by BNYM in the performance of its duties under this Agreement.
(op) BNYM will maintain throughout the term of this Agreement, such disaster recovery and contingency plans and systems as it reasonably believes to be necessary and appropriate to recover its operations from the occurrence of a Force Majeure Event and which are consistent with the requirements of any statute, regulation or rule to which it is subject that imposes business resumption and contingency planning standards. BNYM shall employ commercially reasonable efforts to resume performance as soon as practicable under the circumstances, following the occurrence of a Force Majeure Event.
Appears in 1 contract
Samples: Fund Administration and Accounting Agreement (Virtus ETF Trust II)
