SERVICES AGREEMENT
Exhibit
10.4
AGREEMENT
made as of January __, 2010, by and between each Fund listed on Exhibit A (each
a “Fund” and collectively the “Funds”), 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
(“BNY”).
WITNESSETH :
WHEREAS,
each Fund desires to retain BNY to provide 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.
Each Fund
hereby appoints BNY for the term of this Agreement as its agent to perform the
services described on Schedule I and Schedule II hereto. BNY hereby
accepts such appointment and agrees to perform the duties hereinafter set
forth.
2. Definitions.
Whenever
used in this Agreement, the following words shall have the meanings set forth
below:
(a) “Authorized
Person” shall be any person, whether or not an officer or employee of the Fund,
duly authorized by a Fund to execute any Certificate or to give any Oral
Instruction, such persons to be designated in a Certificate annexed hereto as
Exhibit B hereto or such other Certificate as may be received by BNY from time
to time.
(b) “BNY
Affiliate” shall mean any office, branch or subsidiary of The Bank of New York
Mellon Corporation.
(c) “Book-Entry
System” shall mean the Federal Reserve/Treasury book-entry system for receiving
and delivering securities, its successors and nominees.
(d) “Business
Day” shall mean for a Fund any day described in such Fund’s Prospectus (as
hereinafter defined) as a day on which such Fund is open for
business.
(e) “Certificate”
shall mean any notice, instruction, or other instrument in writing, authorized
or required by this Agreement to be given to BNY, which is actually received by
BNY by letter or facsimile transmission and signed on behalf of a Fund by an
Authorized Person or a person reasonably believed by BNY to be an Authorized
Person.
(f) “Instructions”
shall mean communications transmitted by electronic or telecommunications media,
including S.W.I.F.T., computer-to-computer interface, dedicated transmission
lines, or other mutually agreed upon means.
(g) “Oral
Instructions” shall mean verbal instructions received by BNY from an Authorized
Person or from a person reasonably believed by BNY to be an Authorized
Person.
3. Representations and
Warranties.
Each Fund
hereby represents and warrants to BNY, which representations and warranties
shall be deemed to be continuing and repeated on each day on which BNY is acting
hereunder, 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 it in accordance
with all requisite action and constitutes its valid and legally binding
obligation, enforceable against it in accordance with its
terms;
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(c) It
is conducting its business in compliance with all applicable laws and
regulations and has obtained all regulatory licenses, approvals and consents
necessary to carry on its business as now conducted; there is no statute,
regulation, rule, order or judgment binding on it and no provision of its
charter or by-laws, nor of any mortgage, indenture, credit agreement or other
contract binding on it or affecting its property which would prohibit its
execution or performance of this Agreement;
(d) It
will not use the services provided by BNY hereunder in any manner that is, or
will result in, a violation of any law, rule or regulation applicable to
it;
(e) It
is fully informed of the protections and risks associated with various methods
of transmitting Instructions and Oral Instructions and delivering Certificates
to BNY, shall, and shall cause each Authorized Person, to safeguard and treat
with reasonable care any user and authorization codes, passwords and/or
authentication keys, understands that there may be more secure methods of
transmitting or delivering the same than the methods selected by it, agrees that
the security procedures (if any) to be utilized provide a commercially
reasonable degree of protection in light of its particular needs and
circumstances, and acknowledges and agrees that Instructions may be presumed by
BNY to have been given by person(s) duly authorized, and may be acted
upon as given;
(f) Any
agreement it enters into with a broker-dealer or another person (an “Authorized
Purchaser”) for the purchase and redemption of Fund 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 Fund 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.
4. Delivery of
Documents.
(a) Each
Fund 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:
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(i) Its
organizational document(s) filed with its jurisdiction of organization and all
amendments thereto (the “Charter”);
(ii) Its
Trust Agreement, Operating Agreement, Articles of Association or Limited
Liability Company Agreements, as applicable, and all amendments
thereto;
(iii) Resolutions
of its managers or other governing body authorizing the execution, delivery and
performance of this Agreement by the Fund;
(iv) Its
prospectus (the “Prospectus”) relating to it and its units of beneficial
interest (“Shares”);
(v) True
and correct copies of any material contract between it and any third party
(collectively, “Material Contracts”);
(vi) Copies
of all filings required to be filed by the Fund with an official body or office
(collectively, “Required Filings”)
(vii) An
opinion of its outside counsel, in form and substance satisfactory to BNY and
addressed to BNY, with respect to the status (i.e. whether registered or exempt
from registration) of its Shares under the Securities Act of 1933 and the
Securities Exchange Act of 1934, each as amended.
(b) Each
copy of the Charter shall be certified by an appropriate governmental
representative of the jurisdiction of organization, and if the Charter is
required by law also to be filed with a county or other officer or official
body, a certificate of such filing shall be filed with a certified copy
submitted to BNY. Each copy of the Operating Agreement, Prospectus,
Material Contracts and Required Filings, and all amendments thereto, shall be
certified by the manager, Secretary or an Assistant Secretary of the
Fund.
(c) It
shall be the sole responsibility of each Fund to deliver to BNY from time to
time its then currently effective Prospectus and BNY shall not be deemed to have
notice of any information contained therein until it is actually received by
BNY.
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5. Duties and Obligations of
BNY.
(a) Subject
to the direction and control of each Fund and the provisions of this Agreement,
BNY shall provide to such Fund (i) the administrative services set forth on
Schedule I attached hereto, and (ii) the valuation and computation services
listed on Schedule II attached hereto.
(b) In
performing hereunder, BNY shall provide, at its expense, office space,
facilities, equipment and personnel.
(c) BNY
shall not provide services relating to the management, investment advisory or
sub-advisory functions of any Fund, distribution of Shares of any Fund, or other
services normally performed by the Fund’s counsel or independent
auditors.
(d) Upon
receipt of a Fund’s prior written consent (which shall not be unreasonably
withheld), BNY may delegate any of its duties and obligations hereunder to such
Fund to any delegee or agent whenever and on such terms and conditions as it
deems necessary or appropriate. Notwithstanding the foregoing, no
Fund’s consent shall be required for any such delegation to any other subsidiary
of The Bank of New York Company, Inc. (hereinafter a “BNY Affiliate”)
notwithstanding the domicile of such BNY Affiliate. BNY shall not be
liable for any loss or damage arising out of, or in connection with, the actions
or omissions to act of any delegee or agent utilized hereunder so long as BNY
acts in good faith and without negligence or willful misconduct in the selection
and retention of such delegee or agent, provided that BNY shall be liable for
the acts or omissions of any BNY Affiliate to the same extent it would be liable
under the terms hereof had it committed such act or omission and not delegated
the same, and BNY shall notify each affected Fund upon any such delegation to a
BNY Affiliate.
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(e) BNY
shall cooperate with the Fund’s officers, managers, advisors, sponsor,
distributor, legal counsel, independent accountants, current administrator (if
any) and transfer agent to provide such persons, upon request, with such
information, documents and advice relating to a Fund as is within the possession
or knowledge of BNY in order to enable such persons to perform their duties to
the Fund. Each Fund shall cause its officers, managers, advisors,
sponsor, distributor, legal counsel, independent accountants, current
administrator (if any) and transfer agent to cooperate with BNY and to provide
BNY, upon request, with such information, documents and advice relating to that
Fund as is within the possession or knowledge of such persons in order to enable
BNY to perform its duties hereunder. In connection with its duties
hereunder, BNY shall be entitled reasonably to rely, and shall be held harmless
by each Fund when acting in such reasonable reliance, upon the Instructions,
Oral Instructions, delivered Certificates, advice or any documents relating to a
Fund provided to BNY by any of the aforementioned persons. BNY shall
not be liable for any loss, damage or expense resulting from or arising out of
the failure of a Fund to cause any information, documents or advice to be
provided to BNY as provided herein, provided BNY acts without negligence or
willful misconduct. All fees or costs charged by such persons shall
be borne by the relevant Fund.
(f) Nothing
in this Agreement shall limit or restrict BNY, any affiliate or BNY Affiliate or
any officer or employee thereof from acting for or with any third parties and
providing services similar or identical to some or all of the services provided
hereunder.
(g) Each
Fund shall furnish BNY with any and all Instructions, Oral Instructions,
Certificates, explanations, information, specifications and documentation deemed
necessary by BNY in the performance of its duties hereunder, including, without
limitation, the amounts or written formula for calculating the amounts and times
of accrual of Fund liabilities and expenses. BNY shall not be
required to include as Fund liabilities and expenses, nor as a reduction of net
asset value, any accrual for any federal, state, or foreign income taxes unless
the Fund shall have specified to BNY the precise amount of the same to be
included in liabilities and expenses or used to reduce net asset
value. Each Fund shall also furnish BNY with bid, offer, or market
values of securities if BNY notifies such Fund that same are not available to
BNY from a security pricing or similar service utilized, or subscribed to, by
BNY which BNY in its judgment deems reliable at the time such information is
required for calculations hereunder. At any time and from time to
time, the Fund also may furnish BNY with bid, offer, or market values of
securities and instruct BNY to use such information in its calculations
hereunder. No Fund shall have the right to specify to BNY that it
commence or maintain any utilization of, or subscriptions to, any particular
securities pricing or similar service. In no event shall BNY be
required to determine, or have any obligations with respect to, whether a market
price represents any fair or true value, nor to adjust any price to reflect any
events or announcements, including, without limitation, those with respect to
the issuer thereof, it being agreed that all such determinations and
considerations shall be solely for the Fund.
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(h) BNY
may apply to an officer of a Fund for a Certificate (which Certificate shall not
be unreasonably withheld) with respect to any matter arising in connection with
BNY’s performance hereunder for such Fund, and BNY shall not be liable for any
action taken or not taken by it in accordance with such Certificate (except for
actions by BNY implemented with negligence or willfull
misconduct). Such application for a Certificate shall set forth in
writing any action proposed to be taken or omitted to be taken by BNY with
respect to its duties or obligations under this Agreement and the date on and/or
after which such action shall be taken (which date shall allow an amount of time
for the Fund’s consideration of the application that is reasonable under the
circumstances), and BNY shall not be liable for any action taken or omitted to
be taken in accordance with a proposal included in any such application on or
after the date specified therein unless, prior to taking or omitting to take any
such action, BNY has received a Certificate in response to such application
specifying the action to be taken or omitted.
(i) At any time BNY may seek the advice of
outside counsel to a Fund (which advice shall not be unreasonably withheld) with
respect to any matter arising in connection with the services to be performed by
BNY under this Agreement, and BNY and its agents or subcontractors shall not be
liable for any action taken or omitted by it in reliance upon such advice
(except for actions or omissions by BNY implemented with negligence or willful
misconduct). Such application for advice shall set forth in
writing any action proposed to be taken or omitted to be taken by BNY with
respect to its duties or obligations under this Agreement and the date on and/or
after which such action shall be taken (which date shall allow an amount of time
for counsel’s consideration of the application that is reasonable under the
circumstances), and BNY shall not be liable for any action taken or omitted to
be taken in accordance with 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, BNY has received advice in response to such application specifying
the action to be taken or omitted.
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(j) Notwithstanding
any other provision contained in this Agreement, but to the extent expressly
otherwise provided in Schedules 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 a Fund of: (i) the taxable nature
of any distribution or amount received or deemed received by, or payable to,
such Fund, (ii) the taxable nature or effect on such Fund or its members of any
corporate actions, class actions, tax reclaims, tax refunds or similar events,
(iii) the taxable nature or taxable amount of any distribution or other amount
paid, payable or deemed paid, by such Fund to its members; or (iv) the effect
under any federal, state, foreign, or other applicable income tax laws of such
Fund making or not making any distribution or other payment, or any election
with respect thereto.
(k) BNY,
in performing the services required of it under the terms of this Agreement,
shall be entitled reasonably to rely on the accuracy and validity of any and all
Instructions, Oral Instructions, delivered Certificates, explanations,
information, specifications and documentation furnished to it by a Fund and
shall have no duty or obligation to review the accuracy, validity or propriety
of such Instructions, Oral Instruction, delivered Certificates, explanations,
information, specifications or documentation, including, without limitation,
evaluations of securities; the amounts or formula for calculating the amounts
and times of accrual of a Fund’s liabilities and expenses; the amounts
receivable and the amounts payable on the sale or purchase of securities; and
amounts receivable or amounts payable for the sale or redemption of Fund Shares
effected by or on behalf of a Fund. In the event BNY’s computations
hereunder rely, in whole or in part, upon information, including, without
limitation, bid, offer or market values of securities or other assets, or
accruals of interest or earnings thereon, from a pricing or similar service
utilized, or subscribed to, by BNY or from a broker-dealer selected by BNY,
which service or broker-dealer BNY in its reasonable judgment deems reliable,
BNY shall not be responsible for, under any duty to inquire into, or deemed to
make any assurances with respect to, the accuracy or completeness of such
information. Without limiting the generality of the foregoing, BNY
shall not be required to inquire into any valuation of securities or other
assets by a Fund or any third party described in this sub-section (k) 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.
(l) BNY,
in performing the services required of it under the terms of this Agreement,
shall not be responsible for determining whether any interest accruable to a
Fund is or will be actually paid, but will accrue such interest until otherwise
instructed by the Fund.
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(m) Subject
to the provisions of this sub-section (l), BNY shall compute the net asset value
per unit of each Fund and shall value the securities held by such Fund at such
times and dates and in the manner specified in the then currently effective
Prospectus of such Fund, except that notwithstanding any language in the
Prospectus, in no event shall BNY be required to determine, or have any
obligations with respect to, whether a market price represents any fair or true
value, nor to adjust any price to reflect any events or announcements,
including, without limitation, those with respect to the issuer thereof, it
being agreed that all such determinations and considerations shall be solely for
each Fund. To the extent that the Fund becomes aware (or should
reasonably been aware) that valuation of securities or computation of a Fund’s
net asset value as specified in the Fund’s then currently effective Prospectus
is at any time inconsistent with any applicable laws or regulations, such Fund
shall immediately so notify BNY in writing and thereafter shall either furnish
BNY at all appropriate times with the values of such securities and net asset
value, or subject to the prior approval of BNY, instruct BNY in writing to value
securities and compute net asset value in a manner which such Fund then
represents in writing to be consistent with all applicable laws and
regulations. Such Fund may also from time to time, subject to the
prior approval of BNY, instruct BNY in writing to compute the value of the
securities or net asset value in a manner other than as specified in this
sub-section (l). By giving such instruction, such Fund shall be
deemed to have represented that such instruction is consistent with all
applicable laws and regulations and its then currently effective
Prospectus. Each Fund shall have sole responsibility for determining
the method of valuation of securities and the method of computing net asset
value.
(n) In
providing the services hereunder BNY is authorized to utilize any legal, tax or
other regulatory, compliance, or monitoring services, in each case not a BNY
Affiliate, reasonably believed by BNY to be reliable to provide
information. Each Fund agrees that BNY shall not be liable for any
loss, damage or expense incurred as a result of errors or omissions of any
vendor utilized by BNY; provided, however, that the activities of any vendor to
whom BNY has delegated any of its duties or obligations hereunder shall have
been selected and retained by BNY without negligence or willful
misconduct.
(o) 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 shall be implied against
BNY in connection with this Agreement.
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6. Allocation of
Expenses.
Except as
otherwise provided herein, all costs and expenses arising or incurred in
connection with the operation or each Fund shall be paid by each Fund or its
sponsor, including but not limited to, organizational costs and costs of
maintaining its existence, taxes, interest, brokerage fees and commissions,
insurance premiums, compensation and expenses of such Fund’s manager(s),
members, officers or employees, legal, accounting and audit expenses,
management, advisory, sub-advisory, administration and shareholder servicing
fees, charges of custodians, transfer and dividend disbursing agents, expenses
(including clerical expenses) incident to the issuance, redemption or repurchase
of Fund Shares, fees and expenses incident to the registration or qualification
under federal, state or other applicable securities laws of each Fund or its
Shares, costs (including printing and mailing costs) of preparing and
distributing any materials, reports, notices and proxy material to the Fund’s
members, all expenses incidental to holding meetings of the Fund’s managers and
members, and extraordinary expenses as may arise, including litigation affecting
the Fund and legal obligations relating thereto for which the Fund may have to
indemnify its manager(s), members, or officers.
7. Standard of Care;
Indemnification.
(a) BNY
shall not be liable for any costs, expenses, damages, liabilities or claims,
including attorneys’ and accountants’ fees (collectively, “Losses”), incurred by
or asserted against a Fund, except those Losses arising out of BNY’s own gross
negligence or willful misconduct. In no event shall BNY be liable to
a 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, nor shall BNY be liable for (i) for acting in
accordance with any Certificate or Oral Instructions actually received by BNY
and reasonably believed by BNY to be given by an Authorized Person; (ii) for acting in
accordance with Instructions; (iii) for presuming
that all instructions that are Instructions and are not contained in a
Certificate or Oral Instructions are given only by person(s) duly authorized;
(iv) for
relying upon prices provided by any third party pricing service or broker-dealer
provided BNY has complied with Section 5(j); (v) for any Losses due
to forces beyond the control of BNY, including without limitation strikes, work
stoppages, acts of war or terrorism, insurrection, revolution, nuclear or
natural catastrophes or acts of God, or interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services provided that BNY established and
maintained an appropriate disaster recovery plan and back-up system, or if not,
that such Losses would have occurred even if BNY had established and maintained
an appropriate disaster recovery plan and back-up system; or (vi) for any
Losses, resulting from, arising out of, or in connection with its performance
hereunder, including its actions or omissions, or the incompleteness or
inaccuracy of any specifications or other information furnished by or on behalf
of a Fund, or for delays caused by circumstances beyond BNY’s reasonable
control, unless such Loss arises out of the gross negligence or willful
misconduct of BNY.
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(b) Each
Fund shall indemnify and hold harmless BNY from and against any and all costs,
expenses, damages, liabilities and claims (including claims asserted by such
Fund), and reasonable attorneys’ and accountants’ fees relating thereto, which
are sustained or incurred or which may be asserted against BNY, by reason of or
as a result of any action taken or omitted to be taken by BNY in good faith
reliance upon (i) any law, act, regulation or interpretation of the same, issued
by a court or governmental agency, (ii) a Fund’s Prospectus, (iii) any delivered
Certificate, Instructions, or Oral Instructions of an officer of a Fund, or (iv)
any opinion of legal counsel for a Fund or BNY, or arising out of transactions
or other activities of a Fund which occurred prior to the commencement of this
Agreement; provided, that a Fund
shall not indemnify BNY for costs, expenses, damages, liabilities or claims for
which BNY is liable under preceding sub-section 7(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 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:
(i) Errors
in records or Instructions, Oral Instructions, explanations, information,
specifications or documentation of any kind, as the case may be, supplied to BNY
by or on behalf of such Fund, provided that such errors are not
manifest;
(ii) Action
or inaction taken or omitted to be taken by BNY pursuant to any Certificate,
Instructions or Oral Instructions of such Fund or otherwise without negligence
or willful misconduct;
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(iii) Any
action taken or omitted to be taken by BNY in good faith in accordance with the
advice or opinion of counsel for such Fund or its own counsel, provided that the
Fund has consented to such action or omission with respect to advice given by
BNY counsel, which consent will not be unreasonably withheld;
(iv) Any
improper use by such Fund or its agents, distributor or investment advisor of
any valuations or computations supplied by BNY pursuant to this
Agreement;
(v) The
method of valuation of the securities and the method of computing such Fund’s
net asset value, provided that the Fund has consented to the use of such method,
which consent will not be unreasonably withheld; or
(vi) Any
valuations of securities or net asset value provided by such Fund.
(c) Actions
taken or omitted in reliance on Instructions or Oral Instructions, or upon any
information, order, indenture, officer 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 reasonably believed to
be authorized to sign, countersign or execute the same, or upon the opinion of
legal counsel for the Fund or its own counsel, shall be conclusively presumed to
have been taken or omitted in good faith.
(d) BNY
shall indemnify and hold harmless each Fund from and against any and all
reasonable attorneys’ fees related to claims, where such claims result in
liability to a Fund and such liability has been finally determined by an arbiter
of competent jurisdiction to be directly caused by BNY’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 the
BNY, its successors and assigns, notwithstanding the termination of this
Agreement.
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(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 such
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).
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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 7(e), 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. Compensation and
Reimbursements.
For the
services provided hereunder, each Fund 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. Each Fund authorizes BNY to debit such Fund’s custody
account for all amounts due and payable hereunder. BNY shall deliver
to each Fund invoices for services rendered after debiting such Fund’s custody
account with an indication that payment has been made. 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, each Fund’s net asset value shall be computed at
the times and in the manner specified in the Fund’s Prospectus.
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9. Term of
Agreement.
(a) This
Agreement shall continue until terminated by either BNY giving to a Fund, or a
Fund 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 affected Fund(s) 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 otherwise payable or reimbursable hereunder. If this Agreement is
terminated, BNY shall follow any reasonable Instructions or Oral Instructions
from a Fund concerning the transfer of records.
(b) Notwithstanding
the foregoing, BNY may terminate this Agreement upon 30 days prior written
notice to a Fund if such Fund shall terminate its custody agreement with The
Bank of New York. In the event either party hereto fails to perform
its obligations hereunder in a material respect, the other party hereto may
terminate this Agreement immediately, provided that the non-breaching party has
given written notice of such failure to the breaching party and the breaching
party has not cured such failure within 30 days of receipt of such
notice.
(c) No
termination by a Fund shall constitute a termination by any other
Fund.
10. Authorized
Persons.
Attached
hereto as Exhibit B are lists of persons duly authorized by each Fund to execute
this Agreement and deliver Certificates or give Instructions, Oral Instructions,
or written or oral specifications, by or on behalf of a Fund. From
time to time a Fund may deliver a new Exhibit B to add or delete any person and
BNY shall be entitled to rely on the last Exhibit B actually received by
BNY.
11. Amendment.
This
Agreement may not be amended or modified in any manner except by a written
agreement executed by BNY and each Fund to be bound thereby, and authorized or
approved by each Fund to be bound thereby.
12. 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 Fund without the written consent of BNY, or by
BNY without the written consent of the Fund.
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13. 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. Each
Fund hereby consents to the jurisdiction of a state or federal court situated in
New York City, New York in connection with any dispute arising hereunder, and
waives to the fullest extent permitted by law its right to a trial by
jury. To the extent that in any jurisdiction a Fund may now or
hereafter be entitled to claim, for itself or its assets, immunity from suit,
execution, attachment (before or after judgment) or other legal process, each
Fund irrevocably agrees not to claim, and it hereby waives, such
immunity.
14. 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. Each Fund is entering this Agreement on its own
account and no action by one Fund shall affect this Agreement with any other
Fund.
15. No
Waiver.
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.
16. Notices.
All
notices, requests, consents and other communications pursuant to this Agreement
in writing shall be sent as follows:
if to a Fund, at the address for such
Funds specified on Exhibit A
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if to BNY, at
The Bank of New York
Mellon
__________________________
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.
17. Compliance
Services.
(a) If
Schedule I contains a requirement for BNY to provide the Fund with compliance
services, such services shall be provided pursuant to the terms of this Section
17 (the “Compliance Services”). The precise compliance review and
testing services to be provided shall be as mutually agreed between the BNY and
each Fund, and the results of BNY’s Compliance Services shall be detailed in a
compliance summary report (the “Compliance Summary Report”) prepared on a
periodic basis as mutually agreed. Each Compliance Summary Report
shall be subject to review and approval by the Fund. BNY shall have
no responsibility or obligation to provide Compliance Services other that those
services specifically listed in Schedule I.
(b) The
Fund will examine each Compliance Summary Report delivered to it by BNY and
notify BNY of any error, omission or discrepancy within ten (10) days of its
receipt. The Fund agrees to notify BNY promptly if it fails to
receive any such Compliance Summary Report. The Fund further
acknowledges that unless it notifies BNY within 10 days of any error, omission
or discrepancy that was known or reasonably should have been known to the Fund,
such Compliance Summary Report shall be deemed to be correct and conclusive in
all respects. In addition, if the Fund learns of any
out-of-compliance condition before receiving a Compliance Summary Report
reflecting such condition, the Fund will notify BNY of such condition within one
business day after discovery thereof.
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(c) While
BNY will endeavor to identify out-of-compliance conditions, the BNY does not and
could not for the fees charged, make any guarantees, representations or
warranties with respect to its ability to identify all such
conditions. In the event of any errors or omissions in the
performance of Compliance Services, the Fund’s sole and exclusive remedy and
BNY’s sole liability shall be limited to re-performance by BNY of the Compliance
Services affected and in connection therewith the correction of any error or
omission, if practicable and the preparation of a corrected report, at no cost
to the Fund.
18. 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.
19. Entire
Agreement.
BNY and
each Fund shall have no duties or responsibilities whatsoever with respect to
the subject matter hereof except such duties and responsibilities specifically
set forth in this Agreement and as required by applicable law, and no covenant
or obligation shall be implied against BNY or any Fund in connection with this
Agreement.
20. Limitation of Interseries
Liability.
BNY
agrees that, pursuant to Section 3804(a) of the Delaware Statutory Trust Act,
the liabilities of the Fund and any other series of the Teucrium Commodity Trust
(the “Trust”) 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 series shall be enforceable against the
assets of the particular series only, and not against the assets of the Trust
generally or the assets of any other series, 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 series shall be enforceable against the assets of such particular
series.
IN WITNESS WHEREOF, the parties hereto have caused the foregoing
instrument to be executed by duly authorized persons, all as of the day and year
first above written.
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|
on
behalf of each Fund
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|
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By:
Teucrium Trading, LLC, the Trust’s sponsor
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By:
|
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|
Title:
Treasurer and Secretary
|
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THE
BANK OF NEW YORK MELLON
|
|
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By:
|
|
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Title:
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|
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EXHIBIT
A
FUNDS
The
following series of Teucrium Commodity Trust:
Teucrium Corn Fund
EXHIBIT
B
I,
,
of [Fund Name], LLC, a limited liability company organized under the laws of
____________________, (the “Fund”), do hereby certify that:
The
following individuals serve in the following positions with the Fund, and each
has been duly elected or appointed by the Fund to each such position and
qualified therefor in conformity with the Fund’s Articles of Organization and
Operating Agreement, and the signatures set forth opposite their respective
names are their true and correct signatures. Each such person is
authorized to give written or oral instructions or written or oral
specifications by or on behalf of the Fund to BNY.
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Name
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Position
|
Signature
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||
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SCHEDULE
I
ADMINISTRATIVE
SERVICES
|
|
1.
|
Prepare
and, subject to approval of Fund, disseminate to Fund monthly unaudited
financial statements and schedules of Fund’s
investments.
|
|
|
2.
|
Provide
other information to the sponsor and the Fund’s accountants to assist in
the periodic updating of the Fund’s Registration Statement and Prospectus
and the preparation of Forms 10-K and 10-Q and proxy materials, if
any.
|
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3.
|
Attend
meetings of the Fund’s shareholder as requested from time to
time.
|
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4.
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Subject
to review and approval by Fund, establish appropriate expense accruals,
maintain expense files and coordinate the payment of invoices for
Fund.
|
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5.
|
Under
the terms of an annex to this Agreement, test and document compliance by
the Fund with policies and restrictions which will be specified and agreed
to in the annex. The review and testing procedures to be
applied shall first be agreed by BNY and a Fund’s sponsor and will be
specified in such annex.
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6.
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Prepare
statistical reports for the Fund for outside information
services.
|
SCHEDULE
II
VALUATION AND COMPUTATION
SERVICES
I. BNY
shall maintain the following records on a daily basis in respect of Fund (or any
applicable Series).
1. Report
of priced portfolio securities
2. Statement
of net asset value per share
II.
BNY shall maintain the following records on a monthly basis in respect of Fund
(or any applicable Series):
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. Transaction
(Securities) Journal
10. Broker
Transaction Journal
11. Holdings
Ledger
12. Buy-Sell
Ledger (Broker’s Ledger)
III. BNY
shall provide such daily pricing and holdings information to a securities
exchange or other person responsible for calculation of a Fund’s intra-day net
asset value per share as may reasonably be requested by the Fund for purposes of
such calculation.
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APPENDIX
I
THE
BANK OF NEW YORK
ON-LINE
COMMUNICATIONS SYSTEM (THE “SYSTEM”)
TERMS
AND CONDITIONS
1.
License;
Use.
(a) This Appendix I shall govern the Fund’s use of the System and any
computer software provided by BNY to the Fund in connection herewith
(collectively, the “Software”). In the event of
any conflict between the terms of this Appendix I and the main body of this
Agreement with respect to the Fund’s use of the System, the terms of this
Appendix I shall control.
(b) Upon
delivery to the Fund of Software and/or System access codes, BNY grants to the
Fund a personal, nontransferable and nonexclusive license to use the Software
and the System solely for the purpose of transmitting Written Instructions,
receiving reports, making inquiries or otherwise communicating with BNY in
connection with the Account(s). The Fund shall use the Software and
the System 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 the Fund with respect to the Software
or the System. The Fund acknowledges that BNY and its suppliers
retain and have title and exclusive proprietary rights to the Software and the
System, including any trade secrets or other ideas, concepts, know-how,
methodologies, or information incorporated therein and the exclusive rights to
any copyrights, trademarks and patents (including registrations and applications
for registration of either), or other statutory or legal protections available
in respect thereof. The Fund further acknowledges that all or a part
of the Software or the System may be copyrighted or trademarked (or a
registration or claim made therefor) by BNY or its suppliers. The
Fund shall not take any action with respect to the Software or the System
inconsistent with the foregoing acknowledgments, nor shall the Fund attempt to
decompile, reverse engineer or modify the Software. The Fund may not
copy, sell, lease or provide, directly or indirectly, any of the Software or any
portion thereof to any other person or entity without BNY’s prior written
consent. The Fund may not remove any statutory copyright notice or
other notice included in the Software or on any media containing the
Software. The Fund shall reproduce any such notice on any
reproduction of the Software and shall add any statutory copyright notice or
other notice to the Software or media upon BNY’s request.
(c) If
the Fund subscribes to any database service provided by BNY in connection with
its use of the System, delivery of such database to the Fund shall constitute
the granting by BNY to the Fund of a non-exclusive, non-transferable license to
use such database for so long as this Appendix I is in effect. It is understood
and agreed that any database supplied by BNY is derived from sources which BNY
reasonably believes to be reliable but BNY does not, and cannot for the fees
charged, guarantee or
warrant that the data is correct, complete or current. All such databases are
provided as an accommodation by BNY to its customers and are compiled without
any independent investigation by BNY. However, BNY will endeavor to
update and revise each database on a periodic basis as BNY, in its discretion,
deems necessary and appropriate. The Fund also agrees that the Fund
will promptly install all updates and revisions to each database which BNY
provides and that BNY cannot bear any responsibility whatsoever for the Fund’s
failure to do so. BNY IS NOT RESPONSIBLE FOR ANY RESULTS OBTAINED BY
THE FUND FROM USE OF DATABASE SERVICES PROVIDED BY BNY.
2. Equipment. The
Fund 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 the Software and obtain access to the System, and BNY shall not be
responsible for the reliability or availability of any such equipment or
services.
3. Proprietary
Information. The Software, any data base and any proprietary
data, processes, information and documentation made available to the Fund (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 the Fund containing information
relating to the Account(s) are not deemed to be within the meaning of the term
“Information”. The Fund shall keep the Information confidential by
using the same care and discretion that the Fund 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, the Fund shall return to BNY any and all copies of the
Information which are in its possession or under its control. 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.
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4. Modifications. BNY
reserves the right to modify the Software from time to time and the Fund shall
install new releases of the Software as BNY may direct. The Fund
agrees not to modify or attempt to modify the Software without BNY’s prior
written consent. The Fund acknowledges that any modifications to the
Software, whether by the Fund or BNY and whether with or without BNY’s consent,
shall become the property of BNY.
5. NO REPRESENTATIONS OR
WARRANTIES. BNY AND ITS MANUFACTURERS AND SUPPLIERS MAKE NO
WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE, THE SYSTEM, ANY
SERVICES OR ANY DATABASE, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING BUT
NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE, THE SYSTEM, ANY
SERVICES AND ANY DATABASE 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 THE FUND
MAY INCUR IN CONNECTION WITH THE SOFTWARE, SERVICES OR ANY DATABASE, EVEN IF BNY
OR SUCH SUPPLIER HAS BEEN ADVISED 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 COMPLIES 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. BNY will establish
security procedures to be followed in connection with the System. The
Fund understands and agrees that the security procedures are intended to
determine whether instructions received by BNY through the System are authorized
but are not (unless otherwise specified in writing) intended to detect any
errors contained in such instructions. The Fund will cause all
persons utilizing the Software and the System to treat all applicable user and
authorization codes, passwords and authentication keys with reasonable care and
confidentiality. BNY is hereby irrevocably authorized to comply with
and rely upon on Written Instructions, whether or not authorized, received by it
through the System in accordance with the security procedures. The
Fund acknowledges that it is its sole responsibility to assure that only
Authorized Persons use the System 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 the Fund arising from or in connection
with the use of the System or BNY’s reliance upon and compliance with Written
Instructions received through the System.
7. System
Acknowledgments. BNY shall acknowledge through the System its
receipt of each transmission communicated through the System, and in the absence
of such acknowledgment BNY shall not be liable for any failure to act in
accordance with such transmission and the Fund may not claim that such
transmission was received by BNY.
8. EXPORT
RESTRICTIONS. EXPORT OF THE SOFTWARE IS PROHIBITED BY UNITED
STATES LAW. THE FUND MAY NOT UNDER ANY CIRCUMSTANCES RESELL, DIVERT,
TRANSFER, TRANSSHIP OR OTHERWISE DISPOSE OF THE SOFTWARE (IN ANY FORM) IN OR TO
ANY OTHER COUNTRY. IF BNY DELIVERED THE SOFTWARE TO CUSTOMER OUTSIDE
OF THE UNITED STATES, THE SOFTWARE WAS EXPORTED FROM THE UNITED STATES IN
ACCORDANCE WITH THE EXPORT ADMINISTRATION REGULATIONS. DIVERSION
CONTRARY TO U.S. LAW IS PROHIBITED. The Fund hereby authorizes BNY to
report its name and address to government agencies to which BNY is required to
provide such information by law.
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9. Encryption. The
Fund acknowledges and agrees that encryption may not be available for every
communication through the System, or for all data. The Fund agrees
that BNY may deactivate any encryption features at any time, without notice or
liability to the Fund, for the purpose of maintaining, repairing
or troubleshooting the System or the Software.
10. On-Line Inquiry and
Modification of Records. In connection with the Fund’s use of the System,
BNY may, at the Fund’s request, permit the Fund 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 the Fund is granted such access, the
Fund 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 the
Fund.
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