Exhibit No. EX-99.h.2
FUND ADMINISTRATION AND ACCOUNTING AGREEMENT
AGREEMENT made as of the _____ day of February, 2008 by and between
RevenueShares ETF Trust (the "Trust"), and The Bank of New York, a New York
banking organization ("BNY").
W I T N E S S E T H :
WHEREAS, the Trust is an investment company registered under the Investment
Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust desires to retain BNY to provide for the series
identified on Exhibit A hereto (each, a "Fund") the services described herein,
and BNY is willing to provide such services, all as more fully set forth below;
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties hereby agree as follows:
1. Appointment.
The Trust hereby appoints BNY as its agent for the term of this Agreement
to perform the services described herein. BNY hereby accepts such appointment
and agrees to perform the duties hereinafter set forth.
2. Representations and Warranties.
The Trust hereby represents and warrants to BNY, which representations and
warranties shall be deemed to be continuing, that:
(a) It is duly organized and existing under the laws of the jurisdiction of
its organization, with full power to carry on its business as now conducted, to
enter into this Agreement and to perform its obligations hereunder;
(b) This Agreement has been duly authorized, executed and delivered by the
Trust in accordance with all requisite action and constitutes a valid and
legally binding obligation of the Trust, enforceable in accordance with its
terms;
(c) It is conducting its business in compliance with all applicable laws
and regulations, both state and federal, and has obtained all regulatory
licenses, approvals and consents necessary to carry on its business as now
conducted; there is no statute, regulation, rule, order or judgment binding on
it and no provision of its Declaration of Trust ("Declaration") or bylaws
("Bylaws"), nor of any mortgage, indenture, credit agreement or other contract
binding on it or affecting its property that would prohibit its execution or
performance of this Agreement.
3. Representations and Warranties of BNY.
BNY hereby represents and warrants to the Trust, which representations and
warranties shall be deemed to be continuing, that:
(a) It is duly organized and existing under the laws of the jurisdiction of
its organization, with full power to carry on its business as now conducted, to
enter into this Agreement and to perform its obligations hereunder;
(b) This Agreement has been duly authorized, executed and delivered by BNY
in accordance with all requisite action and constitutes a valid and legally
binding obligation of BNY, enforceable in accordance with its terms, except as
the same may be limited by bankruptcy, insolvency, creditors' rights or
equitable principles; and
(c) It is conducting its business in compliance with all applicable laws
and regulations, both state and federal, and has obtained all regulatory
licenses, approvals and consents necessary to carry on its business as now
conducted; there is no statute, regulation, rule, order or judgment binding on
it and no provision of its Declaration of Trust ("Declaration") or bylaws
("Bylaws"), nor of any mortgage, indenture, credit agreement or other contract
binding on it or affecting its property that would prohibit its execution or
performance of this Agreement.
4. Delivery of Documents.
(a) The Trust will promptly deliver to BNY true and correct copies of each
of the following documents as currently in effect and will promptly deliver to
it all future amendments and supplements thereto, if any:
(1) The Declaration;
(2) The Bylaws;
(3) Resolutions of the Trust's board of trustees (the "Board") authorizing
the execution, delivery and performance of this Agreement by the Trust;
(4) The Trust's registration statement most recently filed with the SEC
relating to the shares of the Trust (the "Registration Statement");
(5) The Trust's Notification of Registration under the 1940 Act on Form
N-8A filed with the SEC;
(6) The Trust's Prospectus and Statement of Additional Information
pertaining to each Fund (collectively, the "Prospectus"); and
(7) A copy of any and all SEC exemptive orders issued to the Trust.
(b) Each copy of the Trust's Certificate of Trust shall be certified by the
Secretary of State (or other appropriate official) of the State of Delaware.
Each copy of the Declaration, Bylaws, Registration Statement and Prospectus, and
all amendments thereto, and copies of Board resolutions, shall be certified by
the Secretary or an Assistant Secretary of the Trust.
(c) It shall be the sole responsibility of the Trust to deliver to BNY its
currently effective Prospectus and BNY shall not be deemed to have notice of any
information contained in such Prospectus that is not contained in a Prospectus
previously delivered to BNY until such information is actually received by BNY.
5. Duties and Obligations of BNY.
(a) Subject to the direction and control of the Trust's Board and the
provisions of this Agreement, BNY 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, BNY shall provide, at its expense, office
space, facilities, equipment and personnel.
(c) BNY may, pursuant to a separate agreement, provide services relating to
the sub-advisory functions of the Trust or maintenance of the Trust's
shareholder records, but shall have no duty or obligation to provide such
services under this Agreement. BNY shall in no event provide services relating
to distribution of shares of the Trust or other services normally performed by
the Trust's respective counsel or independent auditors.
(d) Upon receipt of the Trust's prior written consent, BNY may delegate any
of its duties and obligations hereunder to any delegee or agent whenever and on
such terms and conditions as it deems necessary or appropriate; provided,
however, that no such delegation of its duties and obligations hereunder shall
discharge BNY from its obligations hereunder. Notwithstanding the foregoing, no
Trust consent shall be required for any such delegation to any other subsidiary
or affiliate of the Bank of New York Company, Inc., and BNY hereunder shall be
as liable for the acts or omissions of any such subsidiary or affiliate as if
such acts or omission were its own.
(e) The Trust shall cause its officers, advisors, sponsor, distributor,
legal counsel (subject to any applicable privileges), independent accountants,
current administrator (if any), transfer agent, and any other service provider
to cooperate with BNY and to provide BNY, upon request, with such information,
documents and advice relating to the Trust as is within the possession or
knowledge of such persons, and which, in the reasonable opinion of BNY, is
necessary in order to enable it to perform its duties hereunder. In connection
with its duties hereunder, BNY shall be entitled to reasonably rely, and shall
be held harmless by the Trust when acting in reasonable reliance, upon the
foregoing, upon any Proper Instructions, as that term is defined herein in
Section 6, or open advice or any documents relating to the Trust provided to BNY
by any of the individuals listed on Exhibit B attached hereto or any individual
reasonably believed by BNY to be an Authorized Person (each an "Authorized
Person"). All fees or costs charged by such persons shall be borne by the Trust.
(f) Nothing in this Agreement shall limit or restrict BNY, any affiliate of
BNY or any officer or employee thereof from acting for or with any third
parties, and providing services similar or identical to some or all of the
services provided hereunder.
(g) Subject to the provisions of this Agreement, BNY shall compute the net
asset value per share of the Fund and shall value the securities held by the
Fund at such times and dates and in the manner specified in the then-effective
Prospectus of the Trust and in accordance with the Trust's valuation procedures
actually provided to BNY, except that, notwithstanding any language in the
Prospectus, in no event shall BNY be required to determine, or have any
obligations with respect to, whether a market price represents any fair or true
value, nor to adjust any price to reflect any events or announcements,
including, without limitation, those with respect to the issuer thereof, it
being agreed that all such determinations and considerations shall be solely the
responsibility of the Trust. BNY shall provide a report of such net asset value
to the Trust and Authorized Participants at the respective times set forth in
Schedule II, as amended from time to time. To the extent valuation of securities
or computation of a net asset value as specified in the Trust's then-effective
Prospectus and valuation procedures actually provided to BNY are at any time
inconsistent with any applicable laws or regulations, the Trust or BNY, as
applicable shall immediately so notify the other party in writing and thereafter
BNY shall value securities and/or compute net asset value or other computations
consistent with the Trust's Prospectus and valuation procedures actually
provided to BNY, as they may be amended, which amendments shall constitute a
representation by the Trust (which representation shall be deemed to be
continuing) that the same is consistent with all applicable laws and regulations
and with its amended Prospectus or valuation procedures. The Trust may also from
time to time instruct BNY in writing to compute the value of the securities or
net asset value in a manner other than as specified in this paragraph. By giving
such instruction, the Trust shall be deemed to have represented that such
instruction is consistent with all applicable laws and regulations and the
then-effective Prospectus and valuation procedures of the Trust. The Trust shall
have sole authority and responsibility for determining the method of valuation
of securities and the method of computing net asset value.
(h) The Trust shall furnish BNY with Proper Instructions, as that term is
defined herein in Section 6, containing any and all instructions, explanations,
information, specifications and documentation deemed reasonably necessary by BNY
in the performance of its duties hereunder, including, without limitation,
valuation procedures describing the amounts or written formula for calculating
the amounts and times of accrual of Trust liabilities and expenses. BNY shall
not be required to include as Trust 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 BNY 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 BNY with bid, offer, or market values of securities if
BNY notifies the Trust that same are not available to BNY from a security
pricing or similar service utilized, or subscribed to, by BNY that BNY in its
judgment deems reliable at the time such information is required for
calculations hereunder. At any time and from time to time, the Trust also may
furnish BNY with bid, offer, or market values of securities and instruct BNY to
use such information in its calculations hereunder. BNY shall at no time be
required or obligated to commence or maintain any utilization of, or
subscriptions to, any particular securities pricing or similar service.
(i) BNY may apply to an officer of the Trust for written Proper
Instructions, as that term is defined herein in Section 6, with respect to any
matter arising in connection with BNY's performance hereunder for the Trust, and
BNY shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with such Proper Instructions. Such application may, at
the option of BNY, set forth in writing any action proposed to be taken or
omitted to be taken by BNY with respect to its duties or obligations under this
Agreement and the date on and/or after which such action shall be taken.
(j) BNY may consult with counsel to the Trust at the Trust's expense with
respect to any matter arising in connection with the services to be performed by
BNY under this Agreement and BNY shall be fully protected with respect to
anything done or omitted by it in good faith and in accordance with the advice
or opinion of Trust counsel.
(k) Notwithstanding any other provision contained in this Agreement or
Schedule I or II attached hereto, BNY shall have no duty or obligation to with
respect to, including, without limitation, any duty or obligation to determine,
or advise or notify the Trust of: (i) the taxable nature of any distribution or
amount received or deemed received by, or payable to, the Trust; (ii) the
taxable nature or effect on the Trust or its shareholders of any corporate
actions, class actions, tax reclaims, tax refunds or similar events; (iii) the
taxable nature or taxable amount of any distribution or dividend paid, payable
or deemed paid, by the Trust to its shareholders; or (iv) the effect under any
federal, state, or foreign income tax laws of the Trust making or not making any
distribution or dividend payment, or any election with respect thereto.
(l) BNY 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, except for
those set forth herein, shall be implied against BNY in connection with this
Agreement.
(m) BNY shall have no duty or obligation to review the accuracy, validity
or propriety of Proper Instructions, explanations, information, specifications
or documentation furnished by Authorized Persons including, without limitation:
(i) evaluations of securities; (ii) valuation procedures describing the amounts
or formula for calculating the amounts and times of accrual of Fund liabilities
and expenses; (iii) the amounts receivable and the amounts payable on the sale
or purchase of securities; and (iv) amounts receivable or amounts payable for
the sale or redemption of Fund shares effected by or on behalf of the Trust. In
the event BNY's computations hereunder rely, in whole or in part, upon
information, including, without limitation, bid, offer or market values of
securities or other assets, or accruals of interest or earnings thereon, from a
pricing or similar service utilized, or subscribed to, by BNY that BNY, in its
reasonable judgment, deems reliable, BNY shall not be responsible for, under any
duty to inquire into, or deemed to make any assurances with respect to, the
accuracy or completeness of such information. Without limiting the generality of
the foregoing, BNY shall not be required to inquire into any valuation of
securities or other assets by the Trust or any third party described in this
sub-section (m) even though BNY, in performing services similar to the services
provided pursuant to this Agreement for others, may receive different valuations
of the same or different securities of the same issuers.
(n) BNY, in performing the services required of it under the terms of this
Agreement, shall not be responsible for determining whether any interest
accruable to the Trust is or will be actually paid, but will accrue such
interest until otherwise instructed by the Trust.
(o) BNY shall not be responsible for delays or errors that occur by reason
of circumstances beyond its control in the performance of its duties under this
Agreement, including, without limitation, labor difficulties within or without
BNY, mechanical breakdowns, flood or catastrophe, acts of God, failures of
transportation, interruptions, loss, or malfunctions of utilities, or
communications or computer (hardware or software) services. BNY shall not be
responsible for delays or failures to supply the information or services
specified in this Agreement where such delays or failures are caused by the
failure of any person(s) other than BNY to supply any instructions,
explanations, information, specifications or documentation deemed necessary by
BNY in the performance of its duties under this Agreement. Upon the occurrence
of any such delay or failure, BNY shall use commercially reasonable efforts to
resume performance as soon as practicable under the circumstances. BNY further
represents that it has developed and implemented commercially reasonable
business continuity and disaster recovery policies, procedures and facilities.
6. Proper Instructions.
Proper Instructions shall mean: (i) instructions given by an Authorized
Person(s), such instructions to be given in such form and manner as BNY and the
Trust shall agree upon in writing from time to time; (ii) instructions (which
may be continuing instructions) signed or initialed by an Authorized Person; and
(iii) instructions transmitted by any electro-mechanical or electronic device
agreed to by the Trust and BNY and requiring the use of user and authorization
codes, passwords and/or authentication keys. Oral instructions will be
considered Proper Instructions if BNY reasonably believes them to have been
given by an Authorized Person. BNY shall act upon and comply with any subsequent
Proper Instruction which modifies a prior instruction The Trust shall protect
with extreme care the user and authorization codes, passwords and/or
authentication keys used for electronic or electro-mechanical Proper
Instructions, and agrees Proper Instructions communicated through such secured
media may be conclusively presumed by BNY to be given by Authorized Persons. BNY
shall not be held to have notice of any change of authority of any Authorized
Person until receipt of appropriate written notice thereof has been received by
BNY from the Trust.
7. Allocation of Expenses.
Except as otherwise provided herein, all costs and expenses arising or
incurred in connection with the performance of this Agreement shall be paid by
the Trust, including, without limitation, post-trade compliance testing on the
Xxxxxxx River System as a check for Fund adherence to their investment
restrictions and tests, for compliance with requirements under applicable tax
laws and regulations for the Funds to qualify as regulated investment company.
8. Standard of Care; Indemnification.
(a) Except as otherwise provided herein, BNY shall not be liable for any
costs, expenses, damages, liabilities or claims (including attorneys' and
accountants' fees) incurred by a Fund, except those costs, expenses, damages,
liabilities or claims arising out of BNY's own bad faith, gross negligence,
willful misconduct or reckless disregard of its duties hereunder. In no event
shall BNY be liable to any Fund or any third party for special, indirect or
consequential damages, or lost profits or loss of business, arising under or in
connection with this Agreement, even if previously informed of the possibility
of such damages and regardless of the form of action. BNY shall not be liable
for any loss, damage or expense, including counsel fees and other costs and
expenses of a defense against any claim or liability, resulting from, arising
out of, or in connection with its performance hereunder, including its actions
or omissions, the incompleteness or inaccuracy of any specifications or other
information furnished by the Fund, or for delays caused by circumstances beyond
BNY's control, unless such loss, damage or expense arises out of BNY's bad
faith, gross negligence, willful misconduct or reckless disregard of its duties
hereunder.
(b) Each Fund, severally and not jointly, shall indemnify and hold harmless
BNY from and against any and all costs, expenses, damages, liabilities and
claims (including claims asserted by a Fund), and reasonable attorneys' and
accountants' fees relating thereto, which are sustained or incurred or which may
be asserted against BNY, (x) by reason of or as a result of any action taken or
omitted to be taken by BNY in good faith hereunder; (y) in reliance upon (i) any
law, act, regulation or interpretation of the same even though the same may
thereafter have been altered, changed, amended or repealed; (ii) the Trust's
Registration Statement or Prospectus; (iii) any Proper Instructions of an
Authorized Person; (iv) any opinion of legal counsel for the Trust or BNY; or
(z) arising out of transactions or other activities of a Fund that occurred
prior to the commencement of this Agreement; provided, that no Fund shall
indemnify BNY for costs, expenses, damages, liabilities or claims for which BNY
is liable under preceding 8(a). This indemnity shall be a continuing obligation
of each Fund, its successors and assigns, notwithstanding the termination of
this Agreement. Without limiting the generality of the foregoing, each Fund,
severally and not jointly, shall indemnify BNY against and save BNY harmless
from any loss, damage or expense, including counsel fees and other costs and
expenses of a defense against any claim or liability, arising from any one or
more of the following without bad faith, gross negligence, willful misconduct or
reckless disregard of BNY's duties hereunder:
(1) Errors in records or instructions, explanations, information,
specifications or documentation of any kind, as the case may be, supplied to BNY
by any party described in (iii) or (iv) above or by or on behalf of the Fund;
(2) Action or inaction taken or omitted to be taken by BNY pursuant to
written or oral Proper Instructions by or on behalf of the Fund;
(3) Any action taken or omitted to be taken by BNY in good faith in
accordance with the advice or opinion of counsel for the Trust by or on behalf
of the Fund or its own counsel;
(4) Any improper use by the Fund of any valuations or computations supplied
by BNY pursuant to this Agreement;
(5) The method of valuation of the Fund's portfolio securities and the
method of computing the Fund's net asset value; provided that such valuation or
computation conforms to the Fund's then-effective Prospectus and valuation
procedures actually provide to BNY; or
(6) Any valuations of the Fund's portfolio securities or net asset value
provided to BNY by the Fund.
(c) Actions taken or omitted in reliance on oral or written Proper
Instructions, or upon any information, order, indenture, stock certificate,
power of attorney, assignment, affidavit or other instrument reasonably believed
by BNY to be genuine or bearing the signature of a person or persons believed to
be authorized to sign, countersign or execute the same, or upon the opinion of
legal counsel for the Trust or its own counsel, shall be conclusively presumed
to have been taken or omitted in good faith.
(d) BNY 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 or,
documents to be provided to BNY as provided in Section 5(e) herein, except where
such failure is attributable to BNY's bad faith, gross negligence, willful
misconduct or reckless disregard of its duties hereunder.
(e) The terms of this Section 8 shall survive the termination of this
Agreement.
9. Compensation.
For the services provided hereunder, the Trust agrees to pay BNY such
compensation as is mutually agreed from time to time and such out-of-pocket
expenses (e.g., telecommunication charges, postage and delivery charges, record
retention costs, reproduction charges and transportation and lodging costs) as
are incurred by BNY in performing its duties hereunder. Except as hereinafter
set forth, compensation shall be calculated and accrued daily and paid monthly.
BNY shall deliver to the Trust invoices for services rendered hereunder, and the
Trust shall have a reasonable time period to review and approve the payment of
such invoices. Upon termination of this Agreement before the end of any month,
the compensation for such part of a month shall be prorated according to the
proportion which such period bears to the full monthly period and shall be
payable upon the effective date of termination of this Agreement. For the
purpose of determining compensation payable to BNY, the Trust's net asset value
shall be computed at the times and in the manner specified in the Trust's
Prospectus.
10. Term of Agreement.
(a) This Agreement shall continue until terminated by either BNY giving to
the Trust, or the Trust giving to BNY, a notice in writing specifying the date
of such termination, which date shall be not less than 90 days after the date of
the giving of such notice. Upon termination hereof, the Trust shall pay to BNY
such compensation as may be due as of the date of such termination, and shall
reimburse BNY for any disbursements and expenses made or incurred by BNY and
payable or reimbursable hereunder.
(b) Notwithstanding the foregoing, BNY may terminate this Agreement upon 30
days prior written notice to the Trust if the Trust shall terminate its custody
agreement with The Bank of New York. Either party may terminate this Agreement
on 30 days prior written notice to the other party if the other party fails to
perform its obligations hereunder in a material respect after notice of such
failure and a reasonable time to correct.
11. Authorized Persons.
Attached hereto as Exhibit B is a list of Authorized Persons, who are duly
authorized by the Board of the Trust to execute this Agreement and give any
written or oral Proper Instructions, or written or oral specifications, by or on
behalf of the Trust. From time to time the Trust may deliver a new Exhibit B to
add or delete any Authorized Person and BNY shall be entitled to rely on the
last Exhibit B actually received by BNY.
12. Records.
In compliance with requirements of Rule 31a-3 under the 1940 Act, BNY
agrees that all records listed on Schedule II that it maintains for the Trust
shall at all times remain the property of the Trust, shall be readily accessible
by the Trust during normal business hours in a facility owned or maintained by
BNY, , and shall be promptly surrendered in the form and medium then maintained
upon the termination of the Agreement or otherwise on written request. BNY
further agrees that all records listed on Schedule II that it maintains for the
Trust pursuant to Rule 31a-1 under the 1940 Act will be preserved for the
periods prescribed by Rule 31a-2 under the 1940 Act (generally, six (6) years)
unless any such records are earlier surrendered as provided above, and will be
surrendered in the form and medium then maintained.
13. Confidentiality.
BNY has established and maintains policies and measures reasonably designed
to protect the confidentiality of customer information, and will subject
information hereunder to such policies and measures.
14. Amendment.
(a) This Agreement may not be amended or modified in any manner except by a
written agreement executed by BNY and the Trust to be bound thereby, and
authorized or approved by the Trust's Board.
(b) Notwithstanding any other provisions contained in this Agreement, the
Trust may, without BNY's consent, amend Exhibit A to add or delete Funds and
Exhibit B to change Authorized Persons, and provided further that the Trust
provide at least thirty (30) days notice to BNY of each such amendment to
Exhibit A.
15. Assignment.
This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by the Trust without the written consent
of BNY, or by BNY without the written consent of the Trust accompanied by the
authorization or approval of the Trust's Board. Any purported assignment in
violation of this provision shall be void.
16. Governing Law; Consent to Jurisdiction.
This Agreement shall be construed in accordance with the laws of the State
of New York, without regard to conflict of laws principles thereof. BNY and the
Trust hereby consent to the jurisdiction of a state or federal court situated in
New York City, New York in connection with any dispute arising hereunder, and
waive to the fullest extent permitted by law their right to a trial by jury. To
the extent that in any jurisdiction BNY and the Trust may now or hereafter be
entitled to claim, for themselves or their assets, immunity from suit,
execution, attachment (before or after judgment) or other legal process, BNY and
the Trust irrevocably agree not to claim, and hereby waive, such immunity.
17. Severability.
In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations shall not in any
way be affected or impaired thereby, and if any provision is inapplicable to any
person or circumstances, it shall nevertheless remain applicable to all other
persons and circumstances.
18. No Waiver.
Each and every right granted to BNY or the Trust hereunder or under any
other document delivered hereunder or in connection herewith, or allowed it by
law or equity, shall be cumulative and may be exercised from time to time. No
failure on the part of BNY or the Trust to exercise, and no delay in exercising,
any right will operate as a waiver thereof, nor will any single or partial
exercise by BNY or the Trust of any right preclude any other or future exercise
thereof or the exercise of any other right.
19. Notices.
All notices, requests, consents and other communications pursuant to this
Agreement in writing shall be sent as follows:
if to the Trust, at
RevenueShares ETF Trust
One Commerce Square
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, President
With a copy (which shall not constitute notice) to
Xxxxxxxx Ronon Xxxxxxx & Xxxxx, LLP
0000 Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx
if to BNY, at
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Title:
or at such other place as may from time to time be designated in writing.
Notices hereunder shall be effective upon receipt.
20. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original; but such counterparts together shall
constitute only one instrument.
21. Several Obligations.
Notwithstanding anything in this Agreement to the contrary, the obligations
of the Funds of the Trust hereunder are several and not joint, and no Fund shall
be liable for any amount owing by another Fund and the Funds have executed one
instrument for convenience only.
22. Limitation of Liability.
It is expressly acknowledged and agreed that the obligations of the Trust
hereunder shall not be binding upon any of the shareholders, Trustees, officers,
employees or agents of the Trust, personally, but shall bind only the trust
property of the Trust, as provided in its Declaration. The execution and
delivery of this Agreement have been authorized by the Trustees of the Trust and
signed by an officer of the Trust, acting as such, and neither such
authorization by such Trustees nor such execution and delivery by such officer
shall be deemed to have been made by any of them individually or to impose any
liability on any of them personally, but shall bind only the trust property of
the Trust as provided in the Declaration.
IN WITNESS WHEREOF, the parties hereto have caused the foregoing instrument
to be executed by their duly authorized officers and their seals to be hereunto
affixed, all as of the day and year first above written.
REVENUESHARES ETF TRUST
By: __________________________
Name: Xxxxxxx X. Xxxxx
Title: President
THE BANK OF NEW YORK
By: __________________________
Title:
EXHIBIT A
Name of Series
RevenueShares Large Cap Fund
RevenueShares Mid Cap Fund
RevenueShares Small Cap Fund
EXHIBIT B
I, Xxxxxxx X. Xxxxx, of RevenueShares ETF Trust, a statutory trust
organized and existing under the laws of the State of Delaware (the "Trust"), do
hereby certify that:
The following individuals serve in the following positions with the Trust,
and each has been duly elected or appointed to each such position and qualified
therefor in conformity with the Trust's Declaration of Trust and By-Laws, and
the signatures set forth opposite their respective names are their true and
correct signatures. Each such person is an "Authorized Person," as defined in
the Agreement, and is authorized to give written or oral instructions or written
or oral specifications by or on behalf of the Trust to BNY.
Name Position Signature.
Xxxxxxx X. Xxxxx President _________________________
Xxxxxxxxxxx X. Xxxxx Treasurer _________________________
SCHEDULE I
ADMINISTRATIVE SERVICES
1. Prepare minutes of Board of Director meetings and assist the Secretary of
the Trust in preparation for Board meetings. Such minutes, meeting agendas
and other material prepared in preparation for each Board meeting are
subject to the review and approval of Trust counsel.
2. [RESERVED]
3. Participate in the periodic updating of the Trust's Registration Statement
and Prospectus and, subject to approval by the Trust's Treasurer and legal
counsel, coordinate the preparation, filing, printing and dissemination of
periodic reports and other information to the SEC and the Trust's
shareholders, including annual and semi-annual reports to shareholders,
Form N-SAR, Form N-CSR, Form N-Q, Form N-PX and notices pursuant to Rule
24(f)-2.
4. Prepare workpapers supporting the preparation of federal, state and local
income tax returns for the Trust for review and approval by the Trust's
independent auditors; perform ongoing wash sales review (i.e., purchases
and sales of Fund investments within 30 days of each other); and prepare
Form 1099s for the Trust and file such forms upon the approval of the
Treasurer of the Trust.
5. Prepare and, subject to approval of the Treasurer of the Trust, disseminate
to the Board quarterly unaudited financial statements and schedules of
investments and make presentations to the Board, as appropriate.
6. Subject to approval of the Board, assist the Trust in obtaining fidelity
bond and E&O/D&O insurance coverage.
7. Prepare statistical reports for outside information services (e.g.,
IBC/Xxxxxxxx, ICI, Lipper Analytical and Morningstar).
8. Attend shareholder and Board meetings as requested from time to time.
9. Subject to review and approval by the Treasurer of the Trust, establish
appropriate expense accruals, maintain expense files and coordinate the
payment of invoices for the Trust.
SCHEDULE II
VALUATION AND COMPUTATION SERVICES
I. BNY shall maintain the following records on a daily basis for each Fund of
the Trust:
1. Report of priced portfolio securities
2. Statement of net asset value per share
Such reports and statements shall be provided to the Fund at 5 p.m.
New York time and to Authorized Participants at 5 p.m. New York time,
in each case by such means as BNY and the Fund may agree upon from
time to time.
II. BNY shall maintain the following records on a monthly basis for each Fund:
1. General Ledger
2. General Journal
3. Cash Receipts Journal
4. Cash Disbursements Journal
5. Subscriptions Journal
6. Redemptions Journal
7. Accounts Receivable Reports
8. Accounts Payable Reports
9. Open Subscriptions/Redemption Reports
10. Transaction (Securities) Journal
11. Broker Net Trades Reports
III. BNY shall prepare a Holdings Ledger on a quarterly basis, and a
Buy-Sell Ledger (Broker's Ledger) on a semiannual basis for each Fund. Schedule
D shall be produced on an annual basis for each Fund.
The above reports may be printed according to any other required frequency
to meet the requirements of the Internal Revenue Service, the U.S. Securities
and Exchange Commission and the Trust's Auditors.
IV. For internal control purposes, BNY uses the Account Journals produced
by The Bank of New York Custody System to record daily settlements of the
following for each Fund:
1. Securities bought
2. Securities sold
3. Interest received
4. Dividends received
5. Capital stock sold
6. Capital stock redeemed
7. Other income and expenses
All portfolio purchases for the Trust are recorded to reflect expected
maturity value and total cost including any prepaid interest.
