GLOBAL CUSTODY AGREEMENT (Unregistered Investment Companies)
Exhibit
10.3
(Unregistered
Investment Companies)
AGREEMENT, dated as of January __, 2010
between Teucrium Commodity Trust (the “Trust”), on its own behalf and on behalf
of each of its series listed in Exhibit A attached hereto (each a "Customer"),
and The Bank of New York Mellon, a New York state chartered bank subject to
regulation by the Board of Governors of the Federal Reserve System and the New
York State Banking Department ("Custodian").
ARTICLE
I
DEFINITIONS
Whenever used in this Agreement, the
following words shall have the meanings set forth below:
1. "Authorized Person" shall be
any person, whether or not an officer or employee of the Trust, duly authorized
by the Trust to give Oral and/or Written Instructions with respect to one or
more Accounts, such persons to be designated in a Certificate of Authorized
Persons which contains a specimen signature of such person.
2. "BNY Affiliate" shall mean any
office, branch or subsidiary of The Bank of New York Mellon
Corporation.
3. "Book-Entry System" shall mean
the Federal Reserve/Treasury book-entry system for receiving and delivering
securities, its successors and nominees.
4. "Business Day" shall mean any
day on which Custodian, Book-Entry System and relevant Depositories are open for
business.
5. "Depository" shall include the
Book-Entry System, the Depository Trust Company, Euroclear, Clearstream Banking
S.A. and any other securities depository, book-entry system or clearing agency
(and their respective successors and nominees) authorized to act as a securities
depository, book-entry system or clearing agency pursuant to applicable law and
identified to Customer from time to time.
6. “Hedge Fund Investments” shall
mean investments by Customer in hedge funds, mutual funds and other investment
or collective investment vehicles.
7. "Oral Instructions" shall mean
instructions received verbally by Custodian.
8. "Securities" shall include,
without limitation, any common stock and other equity securities, including
Hedge Fund Investments, bonds, debentures and other debt securities, notes,
mortgages or other obligations, and any instruments representing rights to
receive, purchase, or subscribe for the same, or representing any other rights
or interests therein (whether represented by a certificate or held in a
Depository, with a Subcustodian or on the books of the issuer).
9. "Subcustodian" shall mean a
bank or other financial institution (other than a Depository) which is utilized
by Custodian in connection with the purchase, sale or custody of Securities
hereunder and identified to Customer from time to time.
10. "Written
Instructions"
shall mean written communications actually received by Custodian by
S.W.I.F.T., tested telex, letter, facsimile transmission, or other method or
system specified by Custodian as available for use in connection with the
services hereunder.
- 2 -
ARTICLE
II
APPOINTMENT
OF CUSTODIAN; ACCOUNTS;
REPRESENTATIONS
AND WARRANTIES
1. The
Trust, on behalf of each Customer, hereby appoints Custodian as custodian of all
Securities and cash at any time delivered to Custodian during the term of this
Agreement, and authorizes Custodian to hold Securities in registered form in its
name or the name of its nominees. Custodian hereby accepts such
appointment and agrees to establish and maintain one or more securities accounts
and cash accounts (each such account being separate and distinct with respect to
each Customer) in which Custodian will hold Securities and cash as provided
herein. Such accounts (each, an "Account"; collectively, the
"Accounts") shall be in the name of Customer.
2. The
Trust, on its own behalf and on behalf of each Customer, hereby represents,
warrants and covenants, which shall be continuing and shall be deemed to be
reaffirmed upon each Oral or Written Instruction given by Customer,
that:
(a)
The Trust 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, on its
own behalf and on behalf of each Customer, constitutes a valid and legally
binding obligation of the Trust, on its own behalf and on behalf of each
Customer, enforceable in accordance with its terms, and no statute, regulation,
rule, order, judgment or contract binding on the Trust, on its own behalf and on
behalf of each Customer, prohibits the execution or performance of this
Agreement; and
(c) (i)
Either the Trust, on behalf of a Customer, owns the Securities in the Accounts
free and clear of all liens, claims, security interests and encumbrances (except
those granted herein) or, if the Securities in an Account are owned beneficially
by others, the Trust, on behalf of a Customer, has the right to pledge such
Securities to the extent necessary to secure Customer's obligations hereunder,
free of any right of redemption or prior claim by the beneficial
owner. Custodian's security interest pursuant to Article V hereof
shall be a first lien and security interest subject to no setoffs, counterclaims
or other liens prior to or on a parity with it in favor of any other party
(other than specific liens granted preferred status by statute), and the Trust,
on behalf of each Customer, shall take any and all additional steps which are
required to assure Custodian of such priority and status, including notifying
third parties or obtaining their consent to, Custodian's security
interest.
(ii) The Trust shall take no action to transfer any interest in a Hedge Fund
Investment from the nominee name in which such investment is registered without
the express written consent of Custodian, or take any other action that would
cause Custodian’s first lien and security interest hereunder to be adversely
affected.
(d)
Any agreement the Trust enters into with a broker-dealer or another
person (an “Authorized Purchaser”) for the purchase and redemption of Customer
shares in creation basket aggregations shall require such person to establish
and maintain policies and procedures requiring it to obtain and verify
information about the identity of its customers purchasing Customer shares from
such Authorized Purchaser and which are reasonably designed to ensure that it is
not being used as a conduit for money laundering or other illicit purposes;
and
(e)
The Trust
shall promptly notify Custodian in writing if any of the foregoing
representations and warranties are no longer true.
ARTICLE
III
CUSTODY
AND RELATED SERVICES
1. (a) Subject
to the terms hereof, the Trust, on behalf of each Customer, hereby authorizes
Custodian to hold any Securities received by it from time to time for the
applicable Customer's account. Custodian shall be entitled to utilize
Depositories and Subcustodians to the extent possible in connection with its
performance hereunder. Securities and cash deposited by Custodian in
a Depository will be held subject to the rules, terms and conditions of such
Depository. Securities and cash held through Subcustodians shall be
held subject to the terms and conditions of Custodian's agreements with such
Subcustodians. Subcustodians may be authorized to hold Securities in
central securities depositories or clearing agencies in which such Subcustodians
participate. Unless otherwise required by local law or practice or a
particular subcustodian agreement, Securities deposited with Subcustodians will
be held in a commingled account in the name of Custodian as custodian or trustee
for its customers. Custodian shall identify on its books and records
the Securities and cash belonging to Customer, whether held directly or
indirectly through Depositories or Subcustodians, and shall maintain separate
and distinct books and records for each Customer.
- 3 -
(b) Unless
applicable law otherwise requires, Custodian shall hold Securities indirectly
through a Subcustodian only if (i) the Securities are not subject to any right,
charge, security interest, lien or claim of any kind in favor of such
Subcustodian or its creditors, including a receiver or trustee in bankruptcy or
similar authority, except for a claim of payment for the safe custody or
administration of Securities or for funds advanced on behalf of Customer by such
Subcustodian, and (ii) beneficial ownership of the Securities is freely
transferable without the payment of money or value other than for safe custody
or administration.
2. Custodian
shall furnish the Trust for each Customer with an advice of daily transactions
and a monthly summary of all transfers to or from the Accounts. The
Trust, on behalf of each Customer, may elect to receive advices, confirmations,
reports or statements electronically through the Internet to an email address
specified by it for such purpose. By electing to use the Internet for
this purpose, the Trust acknowledges that such transmissions are not encrypted
and therefore are insecure. The Trust further acknowledges that there
are other risks inherent in communicating through the Internet such as the
possibility of virus contamination and disruptions in service, and agrees that
Custodian shall not be responsible for any loss, damage or expense suffered or
incurred by the Trust or any Customer or any person claiming by or through the
Trust or any Customer as a result of the use of such methods.
3. With
respect to all Securities held hereunder, Custodian shall, unless otherwise
instructed to the contrary:
(a) Receive
all income and other payments and advise the Trust, on behalf of the relevant
Customer, as promptly as practicable of any such amounts due but not
paid;
(b) Present
for payment and receive the amount paid upon all Securities which may mature and
advise the Trust, on behalf of the relevant Customer, as promptly as
practicable of any such amounts due but not paid;
(c) Forward
to the Trust, on behalf of the relevant Customer, all information or documents
that it may receive from an issuer of Securities which, in the opinion of
Custodian, are intended for the beneficial owner of Securities;
(d) Execute,
as custodian, any certificates of ownership, affidavits, declarations or other
certificates under any tax laws now or hereafter in effect in connection with
the collection of bond and note coupons;
(e) Hold
directly or through a Depository or Subcustodian all rights and similar
Securities issued with respect to any Securities credited to an Account
hereunder; and
(f) Endorse
for collection checks, drafts or other negotiable instruments.
4. (a) Custodian
shall notify the Trust, on behalf of the relevant Customer, of such rights or
discretionary actions or of the date or dates by when such rights must be
exercised or such action must be taken provided that Custodian has received,
from the issuer or the relevant Depository (with respect to Securities issued in
the United States) or from the relevant Subcustodian, Depository or a nationally
or internationally recognized bond or corporate action service to which
Custodian subscribes, timely notice of such rights or discretionary corporate
action or of the date or dates such rights must be exercised or such action must
be taken. Absent actual receipt of such notice, Custodian shall have
no liability for failing to so notify Customer.
(b) Whenever
Securities (including, but not limited to, warrants, options, tenders, options
to tender or non-mandatory puts or calls) confer optional rights on Customer or
provide for discretionary action or alternative courses of action by Customer,
Customer shall be responsible for making any decisions relating thereto and for
directing Custodian to act. In order for Custodian to act, it must
receive Customer's Written Instructions at Custodian's offices, addressed as
Custodian may from time to time request, not later than noon at least two (2)
Business Days prior to the last scheduled date to act with respect to such
Securities (or such earlier date or time as Custodian may notify
Customer). Absent Custodian's timely receipt of such Written
Instructions, Custodian shall not be liable for failure to take any action
relating to or to exercise any rights conferred by such Securities.
5. Custodian
will make available to Customer proxy voting services upon the request of, and
for the jurisdictions selected by, Customer in accordance with terms and
conditions to be mutually agreed upon by Custodian and Customer.
6. Custodian
shall promptly advise the Trust, on behalf of the applicable Customer, upon its
notification of the partial redemption, partial payment or other action
affecting less than all Securities of the relevant class. If
Custodian, any Subcustodian or Depository holds any such Securities in which a
Customer has an interest as part of a fungible mass, Custodian, such
Subcustodian or Depository may select the Securities to participate in such
partial redemption, partial payment or other action in any non-discriminatory
manner that it customarily uses to make such selection.
7. Custodian
shall not under any circumstances accept bearer interest coupons which have been
stripped from United States federal, state or local government or agency
securities unless explicitly agreed to by Custodian in writing.
- 4 -
8. Each
Customer shall be liable for all taxes, assessments, duties and other
governmental charges, including any interest or penalty with respect thereto
("Taxes"), with respect to any cash or Securities held on behalf of Customer or
any transaction related thereto. Each Customer shall indemnify
Custodian and each Subcustodian for the amount of any Tax that Custodian, any
such Subcustodian or any other withholding agent is required under applicable
laws (whether by assessment or otherwise) to pay on behalf of, or in respect of
income earned by or payments or distributions made to or for the account of
Customer (including any payment of Tax required by reason of an earlier failure
to withhold). Custodian shall, or shall instruct the applicable
Subcustodian or other withholding agent to, withhold the amount of any Tax which
is required to be withheld under applicable law upon collection of any dividend,
interest or other distribution made with respect to any Security and any
proceeds or income from the sale, loan or other transfer of any
Security. In the event that Custodian or any Subcustodian is required
under applicable law to pay any Tax on behalf of a Customer, Custodian is hereby
authorized to withdraw cash from any cash account for that particular Customer
only, in the amount required to pay such Tax and to use such cash, or to remit
such cash to the appropriate Subcustodian, for the timely payment of such Tax in
the manner required by applicable law. If the aggregate amount of
cash in all cash accounts is not sufficient to pay such Tax, Custodian shall
promptly notify the Trust of the additional amount of cash (in the appropriate
currency) required, and the Trust, on behalf of the applicable Customer, shall
directly deposit such additional amount in the appropriate cash account promptly
after receipt of such notice, for use by Custodian as specified
herein. In the event that Custodian reasonably believes that a
Customer is eligible, pursuant to applicable law or to the provisions of any tax
treaty, for a reduced rate of, or exemption from, any Tax which is otherwise
required to be withheld or paid on behalf of a Customer under any applicable
law, Custodian shall, or shall instruct the applicable Subcustodian or
withholding agent to, either withhold or pay such Tax at such reduced rate or
refrain from withholding or paying such Tax, as appropriate; provided that
Custodian shall have received from the Trust, on behalf of the appropriate
Customer, all documentary evidence of residence or other qualification for such
reduced rate or exemption required to be received under such applicable law or
treaty. In the event that Custodian reasonably believes that a
reduced rate of, or exemption from, any Tax is obtainable only by means of an
application for refund, Custodian and the applicable Subcustodian shall have no
responsibility for the accuracy or validity of any forms or documentation
provided by the Trust to Custodian hereunder. The Trust, on behalf of
each Customer, hereby agrees to indemnify and hold harmless Custodian and each
Subcustodian in respect of any liability arising from any underwithholding or
underpayment of any Tax which results from the inaccuracy or invalidity of any
such forms or other documentation, and such obligation to indemnify shall be a
continuing obligation of the applicable Customer, its successors and assigns,
notwithstanding the termination of this Agreement.
9. (a) For
the purpose of settling Securities and foreign exchange transactions, each
Customer shall provide Custodian with sufficient immediately available funds for
all transactions by such time and date as conditions in the relevant market
dictate. As used herein, "sufficient immediately available funds"
shall mean either (i) sufficient cash denominated in the currency of Customer's
home jurisdiction to purchase the necessary foreign currency, or (ii) sufficient
applicable foreign currency to settle the transaction. Custodian
shall provide the Trust, on behalf of each Customer, with immediately available
funds each day which result from the actual settlement of all sale transactions,
based upon advices received by Custodian from its Subcustodians and
Depositories. Such funds shall be in the currency of Customer's home
jurisdiction or such other currency as the Trust, on behalf of the Customer, may
specify to Custodian.
(b)
Any foreign exchange transaction effected by Custodian in connection
with this Agreement may be entered with Custodian or a BNY Affiliate acting as
principal or otherwise through customary banking channels. The Trust,
on behalf of each Customer, may issue standing Written Instructions with respect
to foreign exchange transactions but Custodian may establish rules or
limitations concerning any foreign exchange facility made available to a
Customer. Each Customer shall bear all risks of investing in
Securities or holding cash denominated in a foreign currency. Without
limiting the foregoing, each Customer shall bear the risks that rules or
procedures imposed by Depositories, exchange controls, asset freezes or other
laws, rules, regulations or orders shall prohibit or impose burdens or costs on
the transfer to, by or for the account of a Customer of Securities or cash held
outside Customer's jurisdiction or denominated in a currency other than its home
jurisdiction or the conversion of cash from one currency into another
currency. Custodian shall not be obligated to substitute another
currency for a currency whose transferability, convertibility or availability
has been affected by such law, regulation, rule or procedure. Neither
Custodian nor any Subcustodian shall be liable to Customer for any loss
resulting from any such event.
10. To
the extent that Custodian has agreed to provide pricing or other information
services in connection with this Agreement, Custodian is authorized to utilize
any vendor (including brokers and dealers of Securities) reasonably believed by
Custodian to be reliable to provide such information. The Trust, on
behalf of each Customer, understands that certain pricing information with
respect to complex financial instruments (e.g., derivatives)
may be based on calculated amounts rather than actual market transactions and
may not reflect actual market values, and that the variance between such
calculated amounts and actual market values may or may not be
material. Where vendors do not provide information for particular
Securities or other property, an Authorized Person may advise Custodian
regarding the fair market value of, or provide other information with respect
to, such Securities or property as determined by it in good
faith. Provided Custodian has complied with the first sentence of
this paragraph, Custodian shall not be liable for any loss, damage or expense
incurred as a result of errors or omissions with respect to any pricing or other
information utilized by Custodian hereunder.
- 5 -
11. As
an accommodation to each Customer, Custodian shall provide consolidated
recordkeeping services pursuant to which Custodian reflects on Account
statements Securities or other assets not held in Custodian’s vault or for which
Custodian or its nominee is not the registered owner ("Non-Custody
Assets"). Non-Custody Assets shall be designated on Custodian's books
as "shares not held" or by other similar characterization. The Trust,
on its own behalf and on behalf of each Customer, acknowledges and agrees that
it shall have no security entitlement against Custodian with respect to
Non-Custody Assets, that Custodian shall be entitled to rely, without
independent verification, on information provided by Customer regarding
Non-Custody Assets (including but not limited to positions and market
valuations) and that, provided Custodian has discharged its duties as
related to the consolidated recordkeeping services in accordance with its
standard of care as contemplated herein, Custodian shall have no responsibility
whatsoever with respect to the accuracy of any information maintained on
Custodian's books or set forth on account statements concerning Non-Custody
Assets.
12. From
time to time Custodian may make available to each Customer or its agent(s)
certain computer programs, products, services, reports or information,
including, without limitation, information obtained by Custodian from third
parties and information reflecting Custodian’s input, evaluation and
interpretation (collectively, “Tools”). Tools may allow Customer or
its agent(s) to perform certain analytic, accounting, compliance, reconciliation
and other functions with respect to the Account. By way of example,
Tools may assist Customer or its agent(s) in analyzing the performance of
investment managers appointed by Customer, determining on a post-trade basis
whether transactions for the Account comply with Customer’s investment
guidelines, evaluating assets at risk, and performing account
reconciliations. Tools may be used only for Customer’s internal
purposes, and may not be resold, redistributed or otherwise made available to
third parties. Tools are the sole and exclusive property of Custodian
and its suppliers. Customer may not reverse engineer or decompile any
computer programs provided by the Custodian comprising, or provided as a part
of, any Tools. Information supplied by third parties may be incorrect
or incomplete, and any information, reports, analytics or other services
supplied by Custodian that rely on information from third parties may also be
incorrect or incomplete. All Tools are provided “AS IS”, whether or
not they are modified to meet specific needs of Customer and regardless of
whether Custodian is compensated by Customer for providing such
Tools. CUSTODIAN DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR
IMPLIED, WITH RESPECT TO THE TOOLS, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR
PURPOSE. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING,
CUSTODIAN AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY LOSS, COST, EXPENSE,
DAMAGE, LIABILITY OR CLAIM SUFFERED OR INCURRED BY CUSTOMER, ITS AGENT(S) OR ANY
OTHER PERSON AS A RESULT OF USE OF, INABILITY TO USE, OR RELIANCE UPON ANY
TOOLS, EXCEPT FOR DIRECT DAMAGES RESULTING FROM THE WILLFUL MISCONDUCT OF
CUSTODIAN.
13.
With respect to Securities issued in the United States, the Shareholders
Communications Act of 1985 (the "Act") requires Custodian to disclose to the
issuers, upon their request, the name, address and securities position of its
customers who are (a) the "beneficial owners" (as defined in the Act) of the
issuer’s Securities, if the beneficial owner does not object to such disclosure,
or (b) acting as a "respondent bank" (as defined in the Act) with respect to the
Securities. (Under the Act, "respondent banks" do not have the option
of objecting to such disclosure upon the issuers' request.) The Act
defines a "beneficial owner" as any person who has, or shares, the power to vote
a security (pursuant to an agreement or otherwise), or who directs the voting of
a security. The Act defines a "respondent bank" as any bank,
association or other entity that exercises fiduciary powers which holds
securities on behalf of beneficial owners and deposits such securities for
safekeeping with a bank, such as Custodian. Under the Act, Customer
is either the "beneficial owner" or a "respondent bank."
|
x
|
Customer
is the "beneficial owner," as defined in the Act, of the Securities to be
held by Custodian hereunder.
|
|
¨
|
Customer
is not the beneficial owner of the Securities to be held by Custodian, but
is acting as a “respondent bank,” as defined
in the Act, with respect to the Securities to be held by Custodian
hereunder.
|
IF NO BOX
IS CHECKED, CUSTODIAN SHALL ASSUME THAT CUSTOMER IS THE BENEFICIAL OWNER OF THE
SECURITIES.
For beneficial owners of the
Securities only:
|
¨
|
Customer
objects
|
|
x
|
Customer
does not object
|
to the
disclosure of its name, address and securities position to any issuer which
requests such information pursuant to the Act for the specific purpose of direct
communications between such issuer and Customer.
- 6
-
IF NO BOX
IS CHECKED, CUSTODIAN SHALL RELEASE SUCH
INFORMATION UNTIL IT RECEIVES A CONTRARY WRITTEN INSTRUCTION FROM
CUSTOMER.
With
respect to Securities issued outside of the United States, information shall be
released to issuers only if required by law or regulation of the particular
country in which the Securities are located.
ARTICLE
IV
PURCHASE,
SALE AND REDEMPTION OF SECURITIES;
CREDITS
TO ACCOUNT
1. (a) Promptly
after each purchase or sale of Securities by Customer, an Authorized Person
shall deliver to Custodian Written Instructions specifying all information
necessary for Custodian to settle such purchase or sale. Custodian
shall account for all purchases and sales of Securities on the actual settlement
date unless otherwise agreed by Custodian.
(b) With
respect to purchases and redemptions of Hedge Fund Investments, upon the Written
Instructions of an Authorized Person Custodian (or its nominee) will as agent
for Customer subscribe for and redeem shares, units or other interests and
complete, execute and submit all relevant subscription and redemption
documentation required by the relevant issuer; provided that any Written
Instructions given to Custodian hereunder shall be in accordance with
Custodian’s procedures notified to Customer from time to time; and provided
further, that Customer’s delivery to Custodian of any such Written Instructions
to purchase Hedge Fund Investments shall constitute the Trust’s representation
and warranty that the Trust has reviewed and understands the terms of the
relevant offering memorandum or subscription agreement (or similar document) and
other document(s) related thereto and agreement to be bound by the terms and
conditions thereof (including all representations and warranties to which the
Trust or a Customer will be bound as beneficial owner of such Hedge Fund
Investment).
2. The
Trust, on behalf of each Customer, understands that when Custodian is instructed
to deliver Securities against payment, delivery of such Securities and receipt
of payment therefor may not be completed simultaneously. The Trust,
on behalf of each Customer, assumes full responsibility for all credit risks
involved in connection with Custodian's delivery of Securities pursuant to
instructions of Customer, provided Custodian has followed commercially
reasonable practices with respect to such delivery.
3. Custodian
may, as a matter of bookkeeping convenience or by separate agreement with the
Trust, on behalf of eacg Customer, credit the Account with the proceeds from the
sale, redemption or other disposition of Securities or interest, dividends or
other distributions payable on Securities prior to its actual receipt of final
payment therefor. All such credits shall be conditional until
Custodian's actual receipt of final payment and may be reversed by Custodian to
the extent that final payment is not received. Payment with respect
to a transaction will not be "final" until Custodian shall have received
immediately available funds which under applicable local law, rule and/or
practice are irreversible and not subject to any security interest, levy or
other encumbrance, and which are specifically applicable to such
transaction.
ARTICLE
V
OVERDRAFTS
OR INDEBTEDNESS
1. If
Custodian in its sole discretion advances funds in any currency hereunder or
there shall arise for whatever reason an overdraft in an Account (including,
without limitation, overdrafts incurred in connection with the settlement of
securities transactions, funds transfers or foreign exchange transactions) or if
Customer is for any other reason indebted to Custodian, Customer agrees to repay
Custodian on demand the amount of the advance, overdraft or indebtedness plus
accrued interest at a rate ordinarily charged by Custodian to its institutional
custody customers in the relevant currency.
2. In
order to secure repayment of Customer's obligations to Custodian hereunder, the
Trust, on behalf of each such Customer, hereby pledges and grants to Custodian a
continuing lien and security interest in, and right of set-off against, all of
Customer's right, title and interest in and to the Accounts and the Securities,
money and other property now or hereafter held in the Accounts (including
proceeds thereof), and any other property at any time held by it for the account
of each respective Customer and not any other series of the Trust. In
this regard, Custodian shall be entitled to all the rights and remedies of a
pledgee and secured creditor under applicable laws, rules or regulations as then
in effect.
- 7 -
ARTICLE
VI
CONCERNING
CUSTODIAN
1. (a) Except
as otherwise expressly provided herein, Custodian shall not be liable for any
costs, expenses, damages, liabilities or claims, including attorneys' and
accountants' fees (collectively, "Losses"), incurred by or asserted against the
Trust or a Customer, except those Losses arising out of the negligence or
willful misconduct of Custodian. Custodian shall have no liability
whatsoever for the action or inaction of any Depository or issuer of
Securities. Subject to Section 1(b) below, Custodian's responsibility
with respect to any Securities or cash held by a Subcustodian is limited to the
failure on the part of Custodian to exercise reasonable care in the selection or
retention of such Subcustodian in light of prevailing settlement and securities
handling practices, procedures and controls in the relevant
market. With respect to any Losses incurred by the Trust or a
Customer as a result of the acts or the failure to act by any Subcustodian
(other than a BNY Affiliate), Custodian shall take appropriate action to recover
such Losses from such Subcustodian; and, provided that Custodian has exercised
reasonable care in the selection and retention of such Subcustodian as provided
for in the preceding sentence, Custodian's sole responsibility and liability to
Customer shall be limited to amounts so received from such Subcustodian
(exclusive of costs and expenses incurred by Custodian). In no event
shall Custodian be liable to Customer or any third party for special, indirect
or consequential damages, or lost profits or loss of business, arising in
connection with this Agreement.
(b) Custodian
may enter into subcontracts, agreements and understandings with any BNY
Affiliate, whenever and on such terms and conditions as it deems necessary or
appropriate to perform its services hereunder. No such subcontract,
agreement or understanding shall discharge Custodian from its obligations
hereunder.
(c)
The Trust on behalf of each Customer agrees to indemnify
Custodian and hold Custodian harmless from and against any and all Losses
sustained or incurred by or asserted against Custodian by reason of or as a
result of any action or inaction, or arising out of Custodian's performance
hereunder, including reasonable fees and expenses of counsel incurred by
Custodian in a successful defense of claims by Customer; provided however, that
the Trust or a Customer shall not indemnify Custodian for those Losses arising
out of Custodian's negligence or willful misconduct. This indemnity
shall be a continuing obligation of the Trust on behalf of each Customer, its
successors and assigns, notwithstanding the termination of this
Agreement.
(d) Custodian
shall indemnify and hold harmless the Trust and each Customer from and against
any and all reasonable attorneys’ fees related to claims, where such claims
result in liability to the Trust or a Customer and such liability has been
finally determined by an arbiter of competent jurisdiction to be directly caused
by Custodian’s failure to discharge its duties in accordance with its standard
of care as set forth hereunder. This indemnity shall be a continuing
obligation of Custodian, its successors and assigns, notwithstanding the
termination of this Agreement.
(e)
If any action, suit or proceeding (each, a “Proceeding”) is brought
against either party to this Agreement (an “Indemnified Party”) in respect of
which indemnity may be sought against the other party (the “Indemnifying Party”)
pursuant to the foregoing paragraphs, the Indemnified Party shall promptly
notify the Indemnifying Party in writing of the institution of such Proceeding
and the Indemnifying Party shall have the right, by providing notice to the
Indemnified Party within twenty (20) Business Days thereafter, to assume the
defense of such Proceeding, including the employment of counsel reasonably
satisfactory to the Indemnified Party and payment of all fees and expenses;
provided, however, that the omission to so notify the Indemnifying Party shall
not relieve the Indemnifying Party from any liability which it may have to the
Indemnified Party except to the extent that it has been materially prejudiced by
such failure and has not otherwise learned of such Proceeding. If the
Indemnifying Party assumes the defense of the Proceeding, the Indemnified Party
shall have the right to employ its own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of the Indemnified Party
unless the employment of such counsel shall have been authorized in writing by
the Indemnifying Party in connection with the defense of such Proceeding or the
Indemnifying Party shall not have, within a reasonable period of time in light
of the circumstances, employed counsel to have charge of the defense of such
Proceeding or the Indemnified Party shall have reasonably concluded that there
may be defenses available to it or them which are different from, additional to
or in conflict with those available to the Indemnifying Party (in which case the
Indemnifying Party shall not have the right to direct the defense of such
Proceeding on behalf of the Indemnified Party), in any of which events such fees
and expenses shall be borne by the Indemnifying Party and paid as incurred (it
being understood, however, that the Indemnifying Party shall not be liable for
the expenses of more than one separate counsel (in addition to any local
counsel) in any one Proceeding or series of related Proceedings in the same
jurisdiction representing the indemnified parties who are parties to such
Proceeding).
The Indemnifying Party shall not be
liable for any settlement of any Proceeding effected without the Indemnifying
Party’s written consent but if settled with the Indemnifying Party’s written
consent, the Indemnifying Party agrees to indemnify and hold harmless the
Indemnified Party from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
Indemnified Party shall have requested an Indemnifying Party to reimburse the
Indemnified Party for fees and expenses of counsel as contemplated by the second
sentence of this section 6.4, then the Indemnifying Party agrees that it shall
be liable for any settlement of any Proceeding effected without its written
consent if (i) such settlement is entered into more than 60 days after receipt
by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying
Party shall not have fully reimbursed the Indemnified Party in accordance with
such request prior to the date of such settlement and (iii) such Indemnified
Party shall have given the Indemnifying Party at least 30 days’ prior notice of
its intention to settle. The Indemnifying Party shall not, without the prior
written consent of the Indemnified Party, effect any settlement of any pending
or threatened Proceeding in respect of which any Indemnified Party is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability on claims that are the subject matter
of such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such Indemnified Party.
- 8 -
2.
Without limiting the generality of and subject to the
foregoing, Custodian shall be under no obligation to inquire into, and shall not
be liable for, any losses incurred by a Customer or any other person as a result
of the receipt or acceptance of fraudulent, forged or invalid Securities, or
Securities which are otherwise not freely transferable or deliverable without
encumbrance in any relevant market.
3. At
any time Custodian may apply to any officer of the Trust or its sponsor for
instructions, and may seek the advice of outside counsel to the Trust (which
instructions or advice shall not be unreasonably withheld) with respect to any
matter arising in connection with the services to be performed by Custodian
under this Agreement, and Custodian and its agents or subcontractors shall not
be liable and shall be indemnified by the Trust for any action taken or omitted
by it in reliance upon such instructions or advice (except for actions or
omissions by Custodian taken with negligence or willful misconduct). An application by
Custodian for instructions or advice in accordance with this Section VI.3 shall
set forth in writing any action proposed to be taken or omitted to be taken by
Custodian with respect to its duties or obligations under this Agreement and the
date on and/or after which such action shall be taken (which date shall allow an
amount of time for the Trust’s or its counsel’s consideration of the application
that is reasonable under the circumstances), and the Bank shall not be liable
for any action taken or omitted to be taken in accordance with a proposal
included in any such application on or after the date specified therein unless,
prior to taking or omitting to take any such action, Custodian has received
written instructions or advice in response to such application specifying the
action to be taken or omitted or has received written notice that the Trust or
its counsel is reasonably declining to provide such instructions or
advice.
4. Custodian
shall be under no obligation to take action to collect any amount payable on
Securities in default, or if payment is refused after due demand and
presentment.
5. Custodian
shall have no duty or responsibility to inquire into, make recommendations,
supervise, or determine the suitability of any transactions affecting any
Account.
6. Each
Customer shall pay to Custodian the fees and charges as may be specifically
agreed upon from time to time and such other fees and charges at Custodian's
standard rates for such services as may be applicable. A Customer
shall reimburse Custodian for all costs associated with the conversion of
Customer's Securities hereunder and the transfer of Securities and records kept
in connection with this Agreement. Each Customer shall also reimburse
Custodian for out-of-pocket expenses which are a normal incident of the services
provided hereunder with respect to that Customer.
7. Custodian
has the right to debit any cash account for any amount payable by a Customer in
connection with any and all obligations of Customer to Custodian, whether or not
relating to or arising under this Agreement. In addition to the
rights of Custodian under applicable law and other agreements, at any time when
Customer shall not have honored any and all of its obligations to Custodian,
Custodian shall have the right without notice to Customer to retain or set-off,
against such obligations of Customer, any Securities or cash Custodian or a BNY
Affiliate may directly or indirectly hold for the account of that Customer, and
any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate
may have to that Customer in any currency. Any such asset of, or
obligation to, a Customer may be transferred to Custodian and any BNY Affiliate
in order to effect the above rights.
8. (a) Subject
to the terms below, Custodian shall be entitled to rely upon any Written or Oral
Instructions actually received by Custodian and reasonably believed by Custodian
to be duly authorized and delivered. The Trust, on behalf of each
Customer, agrees that an Authorized Person shall forward to Custodian Written
Instructions confirming Oral Instructions by the close of business of the same
day that such Oral Instructions are given to Custodian. The Trust, on
behalf of each Customer, agrees that the fact that such confirming Written
Instructions are not received or that contrary Written Instructions are received
by Custodian shall in no way affect the validity or enforceability of
transactions authorized by such Oral Instructions and effected by
Custodian.
(b) If
Custodian receives Written Instructions which appear on their face to have been
transmitted by an Authorized Person via (i) computer facsimile, email, the
Internet or other insecure electronic method, or (ii) secure electronic
transmission containing applicable authorization codes, passwords and/or
authentication keys, Customer understands and agrees that Custodian cannot
determine the identity of the actual sender of such Written Instructions and
that Custodian shall conclusively presume that such Written Instructions have
been sent by an Authorized Person. Customer shall be responsible for
ensuring that only Authorized Persons transmit such Written Instructions to
Custodian and that all Authorized Persons treat applicable user and
authorization codes, passwords and/or authentication keys with reasonable
care.
(c) The
Trust, on behalf of each Customer, acknowledges and agrees that it is fully
informed of the protections and risks associated with the various methods of
transmitting Written Instructions to Custodian and that there may be more secure
methods of transmitting Written Instructions than the method(s) selected by a
Customer. The Trust, on behalf of each Customer, agrees that the
security procedures (if any) to be followed in connection with its transmission
of Written Instructions provide to it a commercially reasonable degree of
protection in light of its particular needs and circumstances.
- 9 -
(d)
If a Customer elects to transmit Written Instructions through an
on-line communication system offered by Custodian, the Customer's use thereof
shall be subject to the Terms and Conditions attached hereto as Appendix
I. If a Customer elects (with Custodian’s prior consent) to transmit
Written Instructions through an on-line communications service owned or operated
by a third party, the Trust, on behalf of such Customer, agrees that Custodian
shall not be responsible or liable for the reliability or availability of any
such service.
9. Upon
reasonable request and provided Custodian shall suffer no significant disruption
of its normal activities, the Trust, on behalf of each Customer, shall have
access to Custodian's books and records relating to the Accounts during
Custodian's normal business hours. Upon reasonable request, copies of
any such books and records shall be provided to the Trust, on behalf of each
Customer, at each Customer's expense.
10. It
is understood that Custodian is authorized to supply any information regarding
the Accounts which is required to be supplied by any law, regulation or rule now
or hereafter in effect.
11. Custodian
represents that it has established and implemented a disaster recovery plan and
back-up system reasonably designed to satisfy the requirements of all applicable
law, rules, and regulations and which is reasonable under the
circumstances. Provided that the foregoing representation has
remained true and correct at the time of a failure as contemplated in this
section, Custodian shall not be responsible or liable for any failure or delay
in the performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable control,
including without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; sabotage; epidemics; riots; interruptions, loss
or malfunctions of utilities, computer (hardware or software) or communications
service; accidents; labor disputes; acts of civil or military authority or
governmental actions, it also being understood that Custodian shall use its best
efforts to resume performance as soon as practicable under the
circumstances.
12. Custodian
shall have no duties or responsibilities whatsoever in connection with the
services to be provided under this Agreement except such duties and
responsibilities as are specifically set forth in this Agreement, and no
covenant or obligation shall be implied against Custodian in connection with
this Agreement.
ARTICLE
VII
TERMINATION
The Trust, on behalf of each Customer
independently, and the Custodian may terminate this Agreement by giving to the
other party a notice in writing specifying the date of such termination, which
shall be not less than ninety (90) days after the date of such
notice. Upon termination hereof, the notifying Customer shall pay to
Custodian such compensation as may be due to Custodian, and shall likewise
reimburse Custodian for other amounts payable or reimbursable to Custodian
hereunder. Custodian shall follow such reasonable Oral or Written
Instructions concerning the transfer of custody of records, Securities and other
items as such Customer shall give; provided, that (a) Custodian shall have no
liability for shipping and insurance costs associated therewith, and (b) full
payment shall have been made to Custodian of its compensation, costs, expenses
and other amounts to which it is entitled hereunder. If any
Securities or cash remain in any Account, Custodian may deliver to the
applicable Customer such Securities and cash. Except as otherwise
provided herein, all obligations of the parties to each other hereunder shall
cease upon
termination of this Agreement. Termination of this Agreement
by the Trust on behalf of any Customer shall not constitute termination by any
other Customer unless separate notice is given.
ARTICLE
VIII
LIMITATION
OF INTERSERIES LIABILITY
Notwithstanding anything to the
contrary provided herein, the Custodian agrees that, pursuant to Section 3804(a)
of the Delaware Statutory Trust Act, the liabilities of each Customer shall be
limited such that (a) the debts, liabilities, obligations and expense incurred,
contracted for or otherwise existing and relating to this Agreement with respect
to a particular Customer shall be enforceable against the assets of the
particular Customer only, and not against the assets of the Trust generally or
the assets of any other Customer, and (b) none of the debts, liabilities,
obligations and expenses incurred, contracted for, or otherwise existing and
relating to this Agreement with respect to the Trust generally and any other
Customer shall be enforceable against the assets of such particular
Customer.
- 10 -
ARTICLE
IX
MISCELLANEOUS
1. The
Trust, on behalf of each Customer, agrees to furnish to Custodian a new
Certificate of Authorized Persons in the event of any change in the then present
Authorized Persons. Until such new Certificate is received, Custodian
shall be fully protected in acting upon Oral Instructions and Written
Instructions of such present Authorized Persons.
2. Any
notice or other instrument in writing, authorized or required by this Agreement
to be given to Custodian, shall be sufficiently given if addressed to Custodian
and received by it at its offices at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or at such other place as Custodian may from time to time designate in
writing.
3. Any
notice or other instrument in writing, authorized or required by this Agreement
to be given the Trust or to a Customer shall be sufficiently given if addressed
to the applicable Customer and received by it at its offices c/o the Trust at
000 Xxxxxx Xxxx Xxxx, Xxxxxxxx X, Xxxxxxxxxxx, Xxxxxxx 00000, or at such other
place as the Trust may from time to time designate in writing.
4. Each
and every right granted to either party 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 either party to exercise, and no delay in exercising, any
right will operate as a waiver thereof, nor will any single or partial exercise
by either party of any right preclude any other or future exercise thereof or
the exercise of any other right.
5. 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 thereby. This Agreement may not be amended or modified in
any manner except by a written agreement executed by both
parties. 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 either party without the written
consent of the other.
6. (a) Except
with respect to Article VIII above, which shall be construed, interpreted and
enforced in accordance with and governed by the laws of the State of Delaware,
this Agreement shall be construed in accordance with the substantive laws of the
State of New York, without regard to conflicts of laws principles
thereof. The Trust and Custodian 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. The Trust, on behalf of each
Customer, hereby irrevocably waives, to the fullest extent permitted by
applicable law, any objection which it may now or hereafter have to the laying
of venue of any such proceeding brought in such a court and any claim that such
proceeding brought in such a court has been brought in an inconvenient
forum. The Trust, on its own behalf and on behalf of each Customer,
and the Custodian each hereby irrevocably waives any and all rights to trial by
jury in any legal proceeding arising out of or relating to this
Agreement.
(b)
The parties hereto agree that the establishment and maintenance of the Account,
and all interests, duties and obligations with respect thereto, shall be
governed by the laws of the State of New York.
7. The
parties hereto agree that in performing hereunder, Custodian is acting solely on
behalf of Customer and no contractual or service relationship shall be deemed to
be established hereby between Custodian and any other person.
8. The
Trust, on behalf of each Customer, hereby acknowledges that Custodian is subject
to federal laws, including the Customer Identification Program (CIP)
requirements under the USA PATRIOT Act and its implementing regulations,
pursuant to which Custodian must obtain, verify and record information that
allows Custodian to identify Customer. Accordingly, prior to opening
an Account hereunder Custodian will ask Customer to provide certain information
including, but not limited to, Customer's name, physical address, tax
identification number and other information that will help Custodian to identify
and verify each Customer’s identity such as organizational documents,
certificate of good standing, license to do business, or other pertinent
identifying information. The Trust, on behalf of each Customer,
agrees that Custodian cannot open an Account hereunder unless and until the
Custodian verifies each Customer's identity in accordance with its
CIP.
9. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but such counterparts shall, together, constitute only
one instrument.
- 11 -
IN WITNESS WHEREOF, the Trust
and Custodian have caused this Agreement to be executed by their respective
officers, thereunto duly authorized, as of the day and year first above
written.
|
By:
Teucrium Trading, LLC, its sponsor
|
|
|
By:
|
|
|
Title:
Treasurer and Secretary
|
|
|
Tax
Identification No:
|
|
|
THE
BANK OF NEW YORK MELLON
|
|
|
By:
|
|
|
Title:
|
|
APPENDIX
I
ELECTRONIC
SERVICES TERMS AND CONDITIONS
1. License;
Use.
(a) This Appendix I shall govern each Customer’s use of electronic
communications, information delivery, portfolio management and banking services,
that The Bank of New York and its affiliates (“BNY”) may provide to such
Customers, such as The Bank of New York Inform ™ and The Bank of New York
CA$H-Register Plus®, and any
computer software, proprietary data and documentation provided by BNY to
Customer in connection therewith (collectively, the “Electronic Services”). In the
event of any conflict between the terms of this Appendix I and the main body of
this Agreement with respect to a Customer’s use of the Electronic Services, the
terms of this Appendix I shall control.
(b) BNY
grants to each Customer a personal, nontransferable and nonexclusive license to
use the Electronic Services to which a Customer subscribes solely for the
purpose of transmitting instructions and information (“Written Instructions”),
obtaining reports, analyses and statements and other information and data,
making inquiries and otherwise communicating with BNY in connection with the
Customer’s relationship with BNY. Each Customer shall use the
Electronic Services solely for its own internal and proper business purposes and
not in the operation of a service bureau. Except as set forth herein,
no license or right of any kind is granted to a Customer with respect to the
Electronic Services. The Trust, on behalf of each Customer,
acknowledges that BNY and its suppliers retain and have title and exclusive
proprietary rights to the Electronic Services, including any trade secrets or
other ideas, concepts, know-how, methodologies, and information incorporated
therein and the exclusive rights to any copyrights, trade dress, look and feel,
trademarks and patents (including registrations and applications for
registration of either), and other legal protections available in respect
thereof. The Trust, on behalf of each Customer, further acknowledges
that all or a part of the Electronic Services may be copyrighted or trademarked
(or a registration or claim made therefor) by BNY or its
suppliers. No Customer shall not take any action with respect to the
Electronic Services inconsistent with the foregoing acknowledgments, nor shall a
Customer attempt to decompile, reverse engineer or modify the Electronic
Services. A Customer may not copy, distribute, sell, lease or
provide, directly or indirectly, the Electronic Services or any portion thereof
to any other person or entity without BNY’s prior written consent. A
Customer may not remove any statutory copyright notice or other notice included
in the Electronic Services. No Customer shall reproduce any such
notice on any reproduction of any portion of the Electronic Services and shall
add any statutory copyright notice or other notice upon BNY’s
request.
(c)
Portions of the Electronic Services may contain, deliver or rely on data
supplied by third parties (“Third Party Data”), such as pricing data and
indicative data, and services supplied by third parties (“Third Party Services”)
such as analytic and accounting services. Third Party Data and Third
Party Services supplied hereunder are obtained from sources that BNY reasonably
believes to be reliable but are provided without any independent investigation
by BNY. BNY and its suppliers do not represent or warrant that the
Third Party Data or Third Party Services are correct, complete or
current. Third Party Data and Third Party Services are proprietary to
their suppliers, are provided solely for Customers’ internal use, and may not be
reused, disseminated or redistributed in any form. A Customer shall
not use any Third Party Data in any manner that would act as a substitute for
obtaining a license for the data directly from the supplier. Third
Party Data and Third Party Services should not be used in making any investment
decision. BNY AND ITS SUPPLIERS ARE NOT RESPONSIBLE FOR ANY RESULTS
OBTAINED FROM THE USE OF OR RELIANCE UPON THIRD PARTY DATA OR THIRD PARTY
SERVICES. BNY’s suppliers of Third Party Data and Services are
intended third party beneficiaries of this Section 1(c) and Section 5
below.
(d) The
Trust, on behalf or each Customer, understands and agrees that any links in the
Electronic Services to Internet sites may be to sites sponsored and maintained
by third parties. BNY make no guarantees, representations or
warranties concerning the information contained in any third party site
(including without limitation that such information is correct, current,
complete or free of viruses or other contamination), or any products or services
sold through third party sites. All such links to third party
Internet sites are provided solely as a convenience to Customers and a Customer
accesses and uses such sites at its own risk. A link in the
Electronic Services to a third party site does not constitute BNY’s endorsement,
authorisation or sponsorship of such site or any products and services available
from such site.
2. Equipment. Each
Customer shall obtain and maintain at its own cost and expense all equipment and
services, including but not limited to communications services, necessary for it
to utilize and obtain access to the Electronic Services, and BNY shall not be
responsible for the reliability or availability of any such equipment or
services.
3. Proprietary
Information. The Electronic Services, and any proprietary data
(including Third Party Data), processes, software, information and documentation
made available to a Customer (other than which are or become part of the public
domain or are legally required to be made available to the public)
(collectively, the "Information"), are the exclusive and confidential property
of BNY or its suppliers. However, for the avoidance of doubt, reports
generated by a Customer containing information relating to its account(s)
(except for Third Party Data contained therein) are not deemed to be within the
meaning of the term “Information.” Each Customer shall keep the
Information confidential by using the same care and discretion that Customer
uses with respect to its own confidential property and trade secrets, but not
less than reasonable care. Upon termination of the Agreement or the
licenses granted herein for any reason, each Customer shall return to BNY any
and all copies of the Information which are in its possession or under its
control (except that Customer may retain reports containing Third Party Data,
provided that such Third Party Data remains subject to the provisions of this
Appendix). The provisions of this Section 3 shall not affect the
copyright status of any of the Information which may be copyrighted and shall
apply to all information whether or not copyrighted.
4. Modifications. BNY
reserves the right to modify the Electronic Services from time to
time. The Trust, on behalf of each Customer, agrees not to modify or
attempt to modify the Electronic Services without BNY's prior written
consent. The Trust, on behalf of each Customer, acknowledges that any
modifications to the Electronic Services, whether by Customer or BNY and whether
with or without BNY's consent, shall become the property of BNY.
5. NO REPRESENTATIONS OR
WARRANTIES; LIMITATION OF LIABILITY. BNY AND ITS MANUFACTURERS
AND SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE
ELECTRONIC SERVICES OR ANY THIRD PARTY DATA OR THIRD PARTY SERVICES, EXPRESS OR
IMPLIED, IN FACT OR IN LAW, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR
PURPOSE. THE TRUST, ON BEHALF OF EACH CUSTOMER, ACKNOWLEDGES THAT THE
ELECTRONIC SERVICES, THIRD PARTY DATA AND THIRD PARTY SERVICES ARE PROVIDED “AS
IS.” TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT
SHALL BNY OR ANY SUPPLIER BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT
SPECIAL, OR CONSEQUENTIAL, WHICH A CUSTOMER MAY INCUR IN CONNECTION WITH THE
ELECTRONIC SERVICES, THIRD PARTY DATA OR THIRD PARTY SERVICES, EVEN IF BNY OR
SUCH SUPPLIER KNEW OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR DIRECT DAMAGES
RESULTING FROM THE WILLFUL MISCONDUCT OF BNY. IN NO EVENT SHALL BNY
OR ANY SUPPLIER BE LIABLE FOR ACTS OF GOD, MACHINE OR COMPUTER BREAKDOWN OR
MALFUNCTION, INTERRUPTION OR MALFUNCTION OF COMMUNICATION FACILITIES, LABOR
DIFFICULTIES OR ANY OTHER SIMILAR OR DISSIMILAR CAUSE BEYOND THEIR REASONABLE
CONTROL PROVIDED THAT BNY HAS ESTABLISHED AND IS MAINTAINING A DISASTER RECOVERY
PLAN AND BACK-UP SYSTEM THAT IS REASONABLY DESIGNED TO COMPLY WITH APPLICABLE
LAW AND IS REASONABLE UNDER THE CIRCUMSTANCES, OR IF NOT, THAT ANY SUCH LOSS
WOULD HAVE OCCURRED EVEN IF BNY HAD ESTABLISHED AND WAS MAINTAINING SUCH A
DISASTER RECOVERY PLAN AND BACK-UP SYSTEM.
6. Security; Reliance;
Unauthorized Use; Funds Transfers. BNY will establish
security procedures to be followed in connection with the use of the Electronic
Services, and the Trust, on behalf of each Customer, agrees to comply with the
security procedures. The Trust, on behalf of each Customer,
understands and agrees that the security procedures are intended to determine
whether instructions received by BNY through the Electronic Services are
authorized but are not (unless otherwise specified in writing) intended to
detect any errors contained in such instructions. The Trust
will cause all persons utilizing the Electronic Services to treat any user and
authorization codes, passwords, authentication keys and other security devices
with reasonable care and confidentiality. Upon termination of
Customer’s use of the Electronic Services, Customer shall return to BNY any
security devices (e.g., token cards) provided by BNY. BNY is hereby
irrevocably authorized to comply with and rely upon on Written Instructions and
other communications, whether or not authorized, received by it through the
Electronic Services. The Trust acknowledges that it has sole
responsibility for ensuring that only Authorized Persons use the Electronic
Services and that to the fullest extent permitted by applicable law BNY shall
not be responsible nor liable for any unauthorized use thereof or for any losses
sustained by Customer arising from or in connection with the use of the
Electronic Services or BNY’s reliance upon and compliance with Written
Instructions and other communications received through the Electronic
Services. With respect to instructions for a transfer of funds issued
through the Electronic Services, when instructed to credit or pay a party by
both name and a unique numeric or alpha-numeric identifier (e.g. ABA number or
account number), BNY, its affiliates, and any other bank participating in the
funds transfer, may rely solely on the unique identifier, even if it identifies
a party different than the party named. Such reliance on a unique
identifier shall apply to beneficiaries named in such instructions as well as
any financial institution which is designated in such instructions to act as an
intermediary in a funds transfer. It is understood and agreed that
unless otherwise specifically provided herein, and to the extent permitted by
applicable law, the parties hereto shall be bound by the rules of any funds
transfer system utilized to effect a funds transfer hereunder.
7. Acknowledgments. BNY
shall acknowledge through the Electronic Services its receipt of each Written
Instruction communicated through the Electronic Services, and in the absence of
such acknowledgment BNY shall not be liable for any failure to act in accordance
with such Written Instruction and a Customer may not claim that such Written
Instruction was received by BNY. BNY may in its discretion decline to
act upon any instructions or communications that are insufficient or incomplete
or are not received by BNY in sufficient time for BNY to act upon, or in
accordance with such instructions or communications.
8. Viruses. The Trust, on
behalf of each Customer, agrees to use reasonable efforts to prevent the
transmission through the Electronic Services of any software or file
which contains any viruses, worms, harmful component or corrupted data and
agrees not to use any device, software, or routine to interfere or attempt to
interfere with the proper working of the Electronic Services.
9. Encryption. The
Trust, on behalf of each Customer, acknowledges and agrees that encryption may
not be available for every communication through the Electronic Services, or for
all data. Customer agrees that BNY may deactivate any encryption
features at any time, without notice or liability to the Trust or any Customer,
for the purpose of maintaining, repairing or troubleshooting its systems.
10.
On-Line Inquiry and
Modification of Records. In connection with a Customer’s use of the
Electronic Services, BNY may, at Customer’s request, permit Customer to enter
data directly into a BNY database for the purpose of modifying certain
information maintained by BNY’s systems, including, but not limited to, change
of address information. To the extent that a Customer is granted such
access, the Trust, on behalf of such Customer, agrees to indemnify and hold BNY
harmless from all loss, liability, cost, damage and expense (including
attorney’s fees and expenses) to which BNY may be subjected or which may be
incurred in connection with any claim which may arise out of or as a result of
changes to BNY database records initiated by such Customer.
11.
Agents. Each
Customer may, on advance written notice to the BNY, permit its agents and
contractors (“Agents”) to access and use the Electronic Services on the
Customer’s behalf, except that the BNY reserves the right to prohibit a
Customer’s use of any particular Agent for any reason. Each Customer
shall require its Agent(s) to agree in writing to be bound by the terms of this
Agreement, and each Customer shall be liable and responsible for any act or
omission of such Agent in the same manner, and to the same extent, as though
such act or omission were that of the Customer. Each submission of a
Written Instruction or other communication by the Agent through the Electronic
Services shall constitute a representation and warranty by the applicable
Customer that the Agent continues to be duly authorized by the Customer to so
act on its behalf and the BNY may rely on the representations and warranties
made herein in complying with such Written Instruction or
communication. Any Written Instruction or other communication through
the Electronic Services by an Agent shall be deemed that of Customer, and
Customer shall be bound thereby whether or not authorized. Customer
may, subject to the terms of this Agreement and upon advance written notice to
the Bank, provide a copy of the Electronic Service user manuals to its Agent if
the Agent requires such copies to use the Electronic Services on Customer’s
behalf. Upon cessation of any such Agent's services, Customer shall
promptly terminate such Agent’s access to the Electronic Services, retrieve from
the Agent any copies of the manuals and destroy them, and retrieve from the
Agent any token cards or other security devices provided by BNY and return them
to BNY.
CERTIFICATE
OF AUTHORIZED PERSONS
(Customer
- Oral and Written Instructions)
The undersigned hereby certifies that
he/she is the duly elected and acting ______________________________
of Teucrium Commodity Trust (the “Trust”), and further certifies that the
following officers or employees of the Trust have been duly authorized in
conformity with the Trust’s Amended and Restated Agreement and Declaration of
Trust and Trust Agreement to deliver Oral and Written Instructions to The Bank
of New York Mellon ("BNY") pursuant to the Global Custody Agreement between the
Trust and BNY dated _______________, and that the signatures appearing opposite
their names are true and correct:
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
This certificate supersedes any
certificate of authorized individuals you may currently have on
file.
|
Title:
|
||
|
Date:
|
||
CUSTODY
ACCOUNT AGENCY AUTHORIZATION
Reference is made to the Global Custody
Agreement (the "Custody Agreement") dated as of ____________________ between
Teucrium Commodity Trust (the "Trust"), on its own behalf and on behalf of each
of its series listed in Exhibit A to the Custody Agreement (each a "Customer"),
and The Bank of New York Mellon ("BNY").
This is to advise BNY that for the
account(s) identified below the following investment managers (each, an
"Investment Manager") have been duly authorized to act as a Customer's agent for
the purpose of (a) delivering Oral and Written Instructions to BNY (as defined
in the Custody Agreement), and/or (b) buying and selling foreign currency (on a
spot and forward basis) and options to buy and sell foreign currency, as such
purposes are designated below, and to confirm to BNY that all actions taken by
BNY in reliance upon such authorization (whether in its capacity as custodian or
counterparty) shall be binding on Customer.
|
Investment
Manager
|
Account
Title/Number
|
Inst.
|
F/X
|
|||
|
By
|
|
||
|
Title:
|
|||
|
Date:
|
|||
CERTIFICATE
OF AUTHORIZED PERSONS
(Investment
Manager - Oral and Written Instructions)
Re: Account
Name:
Account Number:
The undersigned hereby certifies that
he/she is the duly elected and acting ______________________ of Teucrium
Trading, LLC (the "Investment Manager"), and further certifies that the
following officers or employees of the Investment Manager have been duly
authorized in conformity with the Investment Manager's organizational documents
to deliver oral and written instructions to The Bank of New York Mellon ("BNY")
with respect to the above-referenced Account, and that the signatures appearing
opposite their names are true and correct:
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
This certificate supersedes any
certificate of authorized individuals you may currently have on
file.
|
Title:
|
||
|
Date:
|
||
CERTIFICATE
OF AUTHORIZED PERSONS
(Customer
- Foreign Exchange)
The undersigned hereby certifies that
he/she is the duly elected and acting ______________________ of Teucrium
Commodity Trust (the "Trust"), and further certifies that the following officers
or employees of the Trust have been duly authorized in conformity with the
Trust’s Amended and Restated Declaration of Trust and Trust Agreement to enter
into contracts with The Bank of New York Mellon ("BNY") to buy and sell foreign
currency (on a spot and forward basis) and options to buy and sell foreign
currency on behalf of the Trust or any Account ("F/X Transactions"), and that
the signatures appearing opposite their names are true and correct:
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
and
further certifies that the following officers or employees of the Trust have
been duly authorized in conformity with the Trust’s Amended and Restated
Declaration of Trust and Trust Agreement to confirm, orally and in writing, the
terms of F/X Transactions entered with BNY, and that the signatures appearing
opposite their names are true and correct:
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
This certificate supersedes any
certificate of authorized individuals you may currently have on
file.
|
Title:
|
||
|
Date:
|
||
CERTIFICATE
OF AUTHORIZED PERSONS
(Investment
Manager - Foreign Exchange)
Re: Account
Name:
Account Number:
The undersigned hereby certifies that
he/she is the duly elected and acting ______________________ of Teucrium
Trading, LLC (the "Investment Manager"), and further certifies that the
following officers or employees of the Investment Manager have been duly
authorized in conformity with the Investment Manager's organizational documents
to enter into contracts with The Bank of New York Mellon ("BNY") to buy and sell
foreign currency (on a spot and forward basis) and options to buy and sell
foreign currency on behalf of the above-referenced Account ("F/X Transactions"),
and that the signatures appearing opposite their names are true and
correct:
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
and
further certifies that the following officers or employees of the Investment
Manager have been duly authorized in conformity with the Investment Manager's
organizational documents to confirm, orally and in writing, the terms of F/X
Transactions entered by the Investment Manager with BNY, and that the signatures
appearing opposite their names are true and correct:
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
||
|
Name
|
Title
|
Signature
|
This certificate supersedes any
certificate of authorized individuals you may currently have on
file.
|
[seal]
|
||
|
Title:
|
||
|
Date:
|
||
EXHIBIT
A
