GLOBAL CUSTODY AGREEMENT
Exhibit 10.4
AGREEMENT, dated as of , 2007 between GreenHaven Continuous Commodity Index Fund
(“Customer”) and The Bank of New York (“Custodian”).
ARTICLE I
DEFINITIONS
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 Customer,
duly authorized by Customer 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
Company, Inc.
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. “Oral Instructions” shall mean instructions received verbally by Custodian.
7. “Securities” shall include, without limitation, any common stock and other equity
securities, 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).
8. “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.
9. “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.
ARTICLE II
APPOINTMENT OF CUSTODIAN; ACCOUNTS;
REPRESENTATIONS AND WARRANTIES
APPOINTMENT OF CUSTODIAN; ACCOUNTS;
REPRESENTATIONS AND WARRANTIES
1. 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 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.
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2. Customer hereby represents and warrants, which representations and warranties shall
be continuing and shall be deemed to be reaffirmed upon each Oral or Written Instruction
given by Customer, that:
(a) Customer 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 Customer, constitutes a
valid and legally binding obligation of Customer, enforceable in accordance with its terms, and no
statute, regulation, rule, order, judgment or contract binding on Customer prohibits Customer’s
execution or performance of this Agreement; and
(c) Either 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, 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 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.
ARTICLE III
CUSTODY AND RELATED SERVICES
CUSTODY AND RELATED SERVICES
1. (a) Subject to the terms hereof, Customer hereby authorizes Custodian to hold any
Securities received by it from time to time for 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.
(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 Customer with an advice of daily transactions and a monthly summary
of all transfers to or from the Accounts. 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, Customer acknowledges that such
transmissions are not encrypted and therefore are insecure. Customer 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 Customer or any person claiming by or
through 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 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 Customer as promptly as practicable of any such amounts due but not paid;
(c) Forward to 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;
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(e) Hold directly or through a Depository or Subcustodian all rights and similar Securities
issued with respect to any Securities credited to art Account hereunder; and
(f) Endorse for collection checks, drafts or other negotiable instruments.
4. (a) Custodian shall notify 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 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 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.
8. 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. 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 Customer, Custodian is hereby authorized to withdraw cash from any cash
account 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 Customer of the additional amount of cash (in the appropriate
currency) required, and 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 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 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 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 Customer to Custodian hereunder. 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 Customer, its successors and assigns, notwithstanding the termination of
this Agreement.
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9. (a) For the purpose of settling Securities and foreign exchange
transactions, 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 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
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. 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 Customer. Customer shall bear all risks of investing
in Securities or holding cash denominated in a foreign currency. Without limiting the foregoing,
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 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 of the foregoing events.
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. 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. 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.
11. As an accommodation to Customer, Custodian may provide consolidated recordkeeping services
pursuant to which Custodian reflects on Account statements Securities not held in Custodian’s vault
or for which Custodian or its nominee is not the registered owner (“Non-Custody Securities”).
Non-Custody Securities shall be designated on Custodian’s books as “shares not held” or by other
similar characterization. Customer acknowledges and agrees that it shall have no security
entitlement against Custodian with respect to Non-Custody Securities, that Custodian shall rely,
without independent verification, on information provided by Customer regarding Non-Custody
Securities (including but not limited to positions and market valuations) and that Custodian shall
have no responsibility whatsoever with respect to Non-Custody Securities or the accuracy of any
information maintained on Custodian’s books or set forth on account statements concerning
Non-Custody Securities.
12. From time to time Custodian may make available to 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.
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)
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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.”
| o | Customer is the “beneficial owner,” as defined in the Act, of the Securities to be held by Custodian hereunder. | |
| o | 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:
| o | Customer objects | |
| o | 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.
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 AND SALE OF SECURITIES;
CREDITS TO ACCOUNT
PURCHASE AND SALE OF SECURITIES;
CREDITS TO ACCOUNT
1. 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.
2. 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. Customer assumes full responsibility for all credit risks involved in connection
with Custodian’s delivery of Securities pursuant to instructions of Customer.
3. Custodian may, as a matter of bookkeeping convenience or by separate agreement with
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
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, 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
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any other
property at any time held by it for the account of Customer. 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.
ARTICLE VI
CONCERNING CUSTODIAN
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 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 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 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) 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 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 Customer, its successors and assigns, notwithstanding the termination of this
Agreement.
2. Without limiting the generality of the foregoing, Custodian shall be under no obligation to
inquire into, and shall not be liable for, any losses incurred by 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. Custodian may, with respect to questions of law specifically regarding an Account, obtain
the advice of counsel and shall be fully protected with respect to anything done or omitted by it
in good faith in conformity with such 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. 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. 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. Customer shall also reimburse Custodian for out-of-pocket expenses
which are a normal incident of the services provided hereunder.
7. Custodian has the right to debit any cash account for any amount payable by 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 tune 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 Customer, and any obligations (whether matured or
unmatured) that Custodian or a BNY Affiliate may have to Customer in any currency. Any such asset
of, or obligation to, 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. Customer agrees that an Authorized Person shall forward to
Custodian Written Instructions confirming Oral Instructions by the close of business of the same
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day that such Oral Instructions are given to Custodian, 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 extreme care.
(c) 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 Customer. 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.
(d) If Customer elects to transmit Written Instructions through an on-line communication
system offered by Custodian, Customer’s use thereof shall be subject to the Terms and Conditions
attached hereto as Appendix I. If Customer elects (with Custodian’s prior consent) to transmit
Written Instructions through an on-line communications service owned or operated by a third party,
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, 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 Customer at Customer’s expense.
10. It is understood that Custodian is authorized to supply any information regarding the
Accounts which is required by any law, regulation or rule now or hereafter in effect.
11. 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
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 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
TERMINATION
Either party 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, 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
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 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.
- 8 -
ARTICLE VIII
MISCELLANEOUS
MISCELLANEOUS
1. 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 to Customer shall be sufficiently given if addressed to Customer and received by it at its
offices at 0000 Xxxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, XX 00000, or at such other place as Customer
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) 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. Customer 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. 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. Customer and
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.
(c) For
Governmental Entities: To the extent that in any jurisdiction Customer 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, Customer irrevocably agrees not to claim, and it
hereby waives, such immunity.
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. 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 Customer’s identity such as organizational documents, certificate of good
standing, license to do business, or other pertinent identifying information. Customer agrees that
Custodian cannot open an Account hereunder unless and until the Custodian verifies the 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.
- 9 -
IN WITNESS WHEREOF, Customer 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.
| GreenHaven Continuous Commodity Index Fund | ||||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||||
| Title: | President | |||||
| By: | ||||||
| Title: | ||||||
| THE BANK OF NEW YORK | ||||||
| By: | ||||||
| Title: | ||||||
APPENDIX I
ELECTRONIC SERVICES TERMS AND CONDITIONS
1. License; Use. (a) This Appendix I shall govern 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 Customer, such as The Bank of New
York Inform ™ and The Bank of New York CASH-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 Customer’s use of the
Electronic Services, the terms of this Appendix I shall control.
(b) BNY grants to Customer a personal, nontransferable and nonexclusive license to use the
Electronic Services to which 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. 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 Customer with respect to the
Electronic Services. 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. 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. Customer shall not take any action with respect to the Electronic Services inconsistent
with the foregoing acknowledgments, nor shall Customer attempt to decompile, reverse engineer or
modify the Electronic Services. 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. Customer may not remove any statutory copyright notice
or other notice included in the Electronic Services. 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 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 Customer’s internal use, and may not be reused, disseminated or redistributed in any
form. Customer shall not use any Third Xxxxx Data in any manner that would act as a substitute for
obtaining a license for the data directly from the supplier. Third Parry 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 Thud Party Data and Services are intended third party
beneficiaries of this Section 1(c) and Section 5 below.
(d) 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 Customer and
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. 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
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
Customer containing information relating to its accounts) (except for Third Party Data contained
therein) are not deemed to be within the meaning of the term “Information.” 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, 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. Customer agrees not to modify or attempt to modify the Electronic Services without BNY’s
prior written consent. 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. 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 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.
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.
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 Customer
agrees to comply with the security procedures. 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. Customer will cause all persons utilizing the Electronic
Services to treat any user and authorization codes, passwords, authentication keys and other
security devices with the highest degree of 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. Customer 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), the 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 xxxxx 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 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. 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. 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 Customer, for
the purpose of maintaining, repairing or troubleshooting its systems.
10. On-Line Inquiry and Modification of Records. In connection with 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 Customer is
granted such access, 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 Customer.
11. Agents. Customer may, on advance written notice to the BNY, permit its agents
and contractors (“Agents”) to access and use the Electronic Services on Customer’s behalf, except
that the BNY reserves the right to prohibit Customer’s use of any particular Agent for any reason.
Customer shall require its Agent(s) to agree in writing to be bound by the terms of the Agreement,
and 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 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 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)
(Customer — Oral and Written Instructions)
The undersigned hereby certifies that he/she is the duly elected and acting
of
(the “Corporation”), and further certifies that the following officers or employees of the
Corporation have been duly authorized in conformity with the Corporation’s Articles of
Incorporation and By-Laws to deliver Oral and Written Instructions to The Bank of New York (“BNY”)
pursuant to the Global Custody Agreement between the Corporation 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.
| Date: |
