ADMINISTRATIVE AGENCY AGREEMENT
Exhibit
h(1)
THIS
AGREEMENT
is made as of____________________________, 2007
by and among XXXXX
BROTHERS XXXXXXXX & CO.,
a limited partnership organized under the laws of the State of New York (the
“Administrator”),
AMERISTOCK
ETF TRUST,
a Delaware statutory trust duly registered with the U.S. Securities and Exchange
Commission (the “Trust”)
on
behalf of a number of separate investment portfolios listed on Schedule A hereto
(each a Fund
and collectively, the Funds),
and AMERISTOCK CORPORATION, a California corporation registered with the
Securities and Exchange Commission under the Investment Advisers Act of 1940
(the “Adviser”).
WITNESSETH:
WHEREAS,
the
Trust is registered with the United States Securities and Exchange Commission
as
a management investment company under the Investment Company Act of 1940, as
amended (the “1940 Act”); and
WHEREAS,
under
an
Investment Advisory Agreement between the Trust and Adviser, the Adviser serves
as the investment adviser for the Funds, and has agreed to pay most operating
expenses of the Funds, including custodial expenses; and
WHEREAS,
the Trust and Adviser
desire
to retain the Administrator to render certain services to the Trust and the
Funds
and the
Administrator is willing to render such services.
NOW,
THEREFORE,
in
consideration of the premises and mutual covenants herein contained, the parties
hereto agree as follows:
1. Appointment
of Administrator.
The
Trust
and
Adviser
hereby
employ and appoint the Administrator to act as administrative agent on the
terms
set forth in this Agreement, and the Administrator accepts such
appointment.
2. Delivery
of Documents.
The
Trust
will on
a continuing basis provide the Administrator with:
2.1 properly
certified or authenticated copies of resolutions of the Board of
Trustees
of the
Trust
authorizing the appointment of the Administrator as administrative agent of
the
Trust and each Fund and approving this Agreement;
2.2 a
copy of
the Trust’s most recent combined registration statement under the Securities Act
of 1933 and the Investment Company Act of 1940, as amended;
2.3 copies
of
all agreements between the Trust
and its
service providers, including without limitation, advisory
and
distribution agreements;
2.4 a
copy of
the
Funds’
valuation procedures;
2.5 a
copy of
the Declaration
of Trust dated June 5, 2006,
as may
be amended from time to time;
2.6 any
other
documents or resolutions (including, but not limited to directions or
resolutions of the Board of Trustees and/or Audit Committee) which relate to
or
affect the Administrator’s performance of its duties hereunder or which the
Administrator may at any time reasonably request; and
2.7 copies
of
any and all amendments or supplements to the foregoing.
3. Duties
as Administrator. Subject
to the supervision and direction of the Trust,
the
Administrator will perform the administrative services described in Appendix
A
hereto. Additional services may be provided by the Administrator upon the
request of the Trust
as
mutually agreed from time to time. In performing its duties and obligations
hereunder, the Administrator will act in accordance with Trust
or an
Authorized Person’s instructions as defined in Section 5 (“Instructions”). It is
agreed and understood that the Administrator shall not be responsible for a
Fund’s compliance with any applicable documents, laws or regulations, or for
losses, costs or expenses arising out of the Fund’s failure to comply with said
documents, laws or regulations or the Fund’s failure or inability to correct any
non-compliance therewith.
The
Administrator shall in no event be required to take any action, which is in
contravention of any applicable law, rule or regulation or any order or judgment
of any court of competent jurisdiction.
3.1
Records.
The
Administrator will maintain and retain such records as required by the
Investment Company Act of 1940, as amended and other applicable federal
securities laws and created pursuant to the performance of the Administrator’s
obligations under this Agreement. The Administrator will maintain such other
records as requested by the Trust
and
received by the Administrator. The Administrator shall not be responsible for
the accuracy and completeness of any records not created by the Administrator.
The Administrator acknowledges that the records maintained and preserved by
the
Administrator pursuant to this Agreement are the property of the Trust
and will
be, at the Trust’s
expense, surrendered promptly upon
request.
In performing its obligations under this Section, the Administrator may utilize
micrographic and electronic storage media as well as independent third party
storage facilities.
4. Duties
of the Trust.
The Trust
shall notify the Administrator promptly of any matter affecting the performance
by the Administrator of its services under this Agreement. Where the
Administrator is providing fund accounting services pursuant to this Agreement,
the Trust
or
an
Authorized Person shall promptly notify the Administrator as to the accrual
of
liabilities of any
Fund and of liabilities of any
Fund not appearing on the books of account kept by the Administrator, as well
as
to the existence, status and proper treatment of reserves, if any, authorized
by
the Trust
or
an
Authorized Person. Where the Administrator is providing portfolio compliance
monitoring services pursuant to this Agreement, the Trust
agrees to notify the Administrator in the event the Trust
or Authorized Person or any officer, employee or agent of the Trust
detects a possible non-compliance of any
Fund with its investment restrictions, policies and limitations. The
Trust
agrees to provide such information to the Administrator as may be requested
under the banking and securities laws of the United States or other
jurisdictions relating to “Know Your Customer” and money laundering prevention
rules and regulations (collectively, the “KYC Requirements”). For purposes of
this subsection, and in connection with all applicable KYC Requirements, the
Trust and each Fund is the “client” or “customer” of the
Administrator. The
Trust
further represent that it has and will perform,
or has taken and will take reasonable steps to cause its agents to
perform,
all obligations required under applicable KYC Requirements with respect to
all
“Authorized Purchasers” of the Funds.
In its capacity as Administrator, the Administrator is under no such similar
obligations with respect to the Authorized Purchasers of the Funds.
5.
Instructions.
5.1 The
Administrator shall not be liable for, and shall be indemnified by the
Trust
out of
the assets of the applicable Fund against any and all losses, costs, damages
or
expenses arising from or as a result of, any action taken or omitted in reliance
upon Instructions or upon any other written notice, request, direction,
instruction, certificate or other instrument reasonably
believed
by it to be genuine and signed or authorized by the proper party or parties.
A
list of persons so authorized by the Board of Trustees (“Authorized Persons”) is
attached hereto as Appendix B and upon which the Administrator may conclusively
rely until its receipt of notification to the contrary by the Trust.
5.2 Instructions
shall include a written request, direction, instruction or certification signed
or initialed on behalf of the Funds
by
one or more Authorized Persons. Authorized Persons
may be
identified by the Trust
by name,
title or position and will include at least one officer empowered by the Board
of Trustees to name other individuals who are authorized to give Instructions
on
behalf of the Funds.
5.3 Telephonic
or other oral instructions or instructions given by telefax transmission may
be
given by any one of the above persons and will also be considered Instructions
if the Administrator reasonably
believes
them to have been given by a person authorized to give such Instructions with
respect to the transaction involved.
5.4 With
respect to telefax transmissions, the Trust
hereby
acknowledges
that (i)
receipt of legible instructions cannot be assured, (ii) the Administrator cannot
verify that authorized signatures on telefax instructions are original, and
(iii) the Administrator shall not be responsible for losses or expenses incurred
through actions taken in reliance on inaccurately
stated, illegible or unauthorized telefax instructions.
5.5 Instructions
given orally will not be confirmed in writing and the lack of such confirmation
shall in no way affect any action taken by the Administrator in reliance upon
such oral Instructions. The Trust
authorizes
the
Administrator to tape record any and all telephonic or other oral Instructions
given to the Administrator by or on behalf of the Fund (including any of the
Trust’s
officers, directors, trustees, employees or agents or any investment manager
or
adviser or person or entity with similar responsibilities which is authorized
to
give Instructions on behalf of the Trust
to the
Administrator.)
6. Expenses
and Compensation.
For the
services to be rendered and the facilities to be furnished by the Administrator
as provided for in this Agreement, the Adviser
shall
pay the Administrator for its services rendered pursuant to this Agreement
a fee
based on such fee schedule as may from time to time be agreed upon in writing
among the Adviser
and the
Administrator. Additional services performed by the Administrator as requested
by the Trust
shall be
subject to additional fees as mutually agreed from time to time. In addition
to
any such fees, the Administrator shall xxxx the Adviser
separately for any out-of-pocket disbursements of the Administrator based on
an
out-of-pocket disbursement schedule as may from time to time be agreed upon
in
writing among the Trust
and the
Administrator. The initial fee schedule and out of pocket disbursement schedule
are attached as Xxxxxxxx X-0 and D-2 to this Agreement. The foregoing fees
and
disbursements shall be billed to the Adviser
by the
Administrator and shall be paid promptly by wire transfer or other appropriate
means to the Administrator.
7. Standard
of Care.
The
Administrator shall be held to the exercise of reasonable care and diligence
in
carrying out the provisions of this Agreement, provided that the Administrator
shall not thereby be required to take any action which is in contravention
of
any applicable law, rule or regulation or any order or judgment of any court
of
competent jurisdiction.
8. General
Limitations on Liability.
The
Administrator shall incur no liability with respect to any telecommunications,
equipment or power failures
except
to the extent any loss or damage to a Fund was caused by Administator’s failure
to take commercially reasonable steps to minimize the amount of loss or damage
sustained by the Fund as a result of such telecommunications, equipment or
power
failure. The Administrator shall incur no liability with respect to
or
any
failures to perform or delays in performance by postal or courier services
or
third-party information providers (including, without limitation those listed
on
Appendix C),
provided that any decision of Administrator to use such postal or courier
service or third-party information provider was reasonable under the
circumstances.
8.1 The
Administrator shall also incur no liability under this Agreement if the
Administrator or any agent or entity utilized by the Administrator shall be
prevented, forbidden or delayed from performing, or omits to perform, any act
or
thing which this Agreement provides shall be performed or omitted to be
performed, by reason of causes or events beyond its control, including but
not
limited to:
8.1.1 any
Sovereign Event. A “Sovereign Event” shall mean any nationalization;
expropriation; devaluation; revaluation; confiscation; seizure; cancellation;
destruction; strike; act of war, terrorism, insurrection or revolution; or
any
other act or event beyond the Administrator’s control;
8.1.2 any
provision of any present or future law, regulation or order of the United States
or any state thereof, or of any foreign country or political subdivision
thereof, or of any securities depository or clearing agency; and
8.1.3 any
provision of any order or judgment of any court of competent
jurisdiction
except
to
the extent any loss or damage to a Fund was caused by Administrator’s failure to
take commercially reasonable steps to minimize the amount of loss or damage
sustained by the Fund as a result of such causes of events.
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8.2 The
Administrator shall not be held accountable or liable for any losses,
damages or expenses the Trust or a Fund or any shareholder or former
shareholder of the Fund or any other person may suffer or incur arising
from acts, omissions, errors or delays of the Administrator in the
performance of its obligations and duties as provided in Section
3 hereof,
including without limitation any error of judgment or mistake of
law,
except a damage, loss or expense directly resulting from the
Administrator’s willful malfeasance, bad faith or negligence in the
performance of such Administrator’s obligations and
duties.
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8.3 In
no
event and under no circumstances shall the Administrator be held liable for
consequential or indirect damages, loss of profits, damage to reputation or
business or any other special or punitive damages arising under or by reason
of
any provision of this Agreement or for any act or omissions hereunder, even
if
the Administrator has been advised of the possibility of such damages or losses.
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9.
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Specific
Limitations on Liability. In
addition to, and without limiting the application of the general
limitations on liability contained in Section 8, above, the following
specific limitations on the Administrator’s liability shall apply to the
particular administrative services set forth on Appendix A hereto.
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9.1 Portfolio
Compliance Monitoring.
The
compliance monitoring of the investments of the Trust and/or each Fund with
respect to investment restrictions and policies is subject to parameters that
may vary over time and which may be beyond the control or knowledge of the
Administrator. Consequently, the results of the monitoring as notified by the
Administrator to the Trust
or its
duly appointed agent are to be considered merely as an indication of possible
non-compliance with the investment restrictions and policies of the Trust or
Funds
rather
than an affirmative statement as to non-compliance with the investment
restrictions and policies. Moreover, the Administrator may not detect a breach
and consequently might not notify the Trust
thereof
if information or data in its possession are inaccurate, incomplete or
ambiguous. The
Trust
shall
remain responsible
for ensuring compliance of the investments of the Trust and Funds
with
their investment restrictions and policies and
the
services provided by the Administrator in monitoring investment restrictions
and
policies shall not be deemed to be a delegation of the Trust’s
responsibility
to the Administrator.
9.2 Liability
for Fund Accounting Services. Without
limiting the provisions in Section 8 hereof, the Administrator’s liability for
acts, omissions, errors or delays relating to its fund accounting obligations
and duties shall be limited to the amount of any expenses associated with a
required recalculation of net asset value per unit (“NAV”) or any direct damages
suffered by shareholders in connection with such recalculation. The
Administrator’s liability or accountability for such acts, omissions, errors or
delays shall be further subject to clauses 9.2.1 through 9.2.4 below.
9.2.1 The
parties hereto acknowledge that the Administrator’s causing an error or delay in
the determination of NAV may, but does not in and of itself, constitute
negligence or reckless or willful misconduct. The parties further acknowledge
that in accordance with industry practice the liability of the Administrator
for
fund accounting services shall accrue and the recalculation of NAV shall be
performed in accordance with this Section 9.1 only with regard to errors in
the
calculation of the NAV that are (i) greater than or equal to $.01 per unit
of
the Fund or
(ii)
greater than or equal to ½% of the total net assets of the Fund.
9.2.2 In
no
event shall the Administrator be liable or responsible to the Trust
or any
present or former shareholder of a
Fund, or
any other person for any error or delay that continued or was undetected after
the date of an audit performed by the certified public accountants employed
by
or on behalf of the Fund if, in the exercise of reasonable care in accordance
with generally accepted accounting standards, such accountants should have
become aware of such error or delay in the course of performing such audit.
9.2.3 The
Administrator shall not be held accountable or liable to the Trust,
any shareholder or former shareholder of
a Fund,
or any other person for any delays or losses, damages or expenses any of them
may suffer or incur resulting from (i) the Administrator’s usage of a third
party service provider for the purpose of storing records delivered to the
Administrator by or on behalf of the Fund and which the Administrator did not
create in the performance of its obligations hereunder,
provided that such usage of a third party by the Administrator was reasonable
under the circumstances;
(ii) the Administrator’s failure to receive timely and suitable notification
concerning quotations or corporate actions relating to or affecting portfolio
securities of the Fund; or (iii) any errors in the computation of NAV based
upon
or arising out of quotations or information as to corporate actions if received
by the Administrator either (a) from a source which the Administrator was
authorized to rely upon (including those sources listed on Appendix C), or
(b)
from a source which in the Administrator’s reasonable judgment was as reliable a
source for such quotations or information as such authorized sources; or (iv)
any errors in the computation of NAV as a result of relevant information known
to the Trust
or any of the Funds’
other
service providers which would impact the calculation of NAV, but was not
communicated to
the Administrator. For purposes of clause (ii) above, receipt by the
Administrator in its capacity as custodian of Fund assets shall constitute
receipt by
the Administrator. To the extent that Fund assets are not in the custody of
the
Administrator, the Administrator may conclusively rely on any reporting in
connection with such assets provided to the Administrator by a third party
on
behalf of the Fund.
9.2.4 In
the
event of any error or delay in the determination of such NAV for which the
Administrator may be liable, the Trust
and the
Administrator will consult and make good faith efforts to reach agreement on
what actions should be taken in order to mitigate any loss suffered by
a
Fund or
its present or former shareholders, in order that the Administrator’s exposure
to liability shall be reduced to the extent possible after taking into account
all relevant factors and alternatives. It is understood that in attempting
to
reach agreement on the actions to be taken or the amount of the loss which
should appropriately be borne by the Administrator, the Trust
and the
Administrator will consider such relevant factors as the amount of the loss
involved, the Trust’s
desire
to avoid loss of shareholder goodwill, the
fact
that other persons or entities could have been reasonably expected to have
detected the error sooner than the time it was actually discovered, the
appropriateness of limiting or eliminating the benefit which unitholders or
former unitholders might have obtained by reason of the error, and the
possibility that other parties providing services to the Fund might be induced
to absorb a portion of the loss incurred.
10.
Indemnification.
10.1 The
Trust
and
Adviser
hereby
agree
to
indemnify and hold harmless the Administrator, its partners, stockholders,
members, directors, officers and employees and any subsidiary or affiliate
of
the foregoing (“Affiliate”), and the successors and assigns of all of the
foregoing persons, against any and all losses, claims, damages, liabilities
or
expenses (including reasonable counsel fees and expenses) resulting from any
act, omission, error or delay or any claim, demand, action or suit, in
connection with or arising out of performance of its obligations and duties
under this Agreement, not resulting from the willful malfeasance, bad faith
or
negligence of the Administrator in the performance of such obligations and
duties. The provisions of this Section 10 shall survive the termination of
this
Agreement.
10.1.1 If
any
action, suit or proceeding (each, a “Proceeding”) is brought against the
Administrator or any such person in respect of which indemnity may be sought
against the Trust
or
Adviser
pursuant
to the foregoing paragraph, the Administrator or such person shall promptly
notify the Trust
and
Adviser
in
writing of the institution of such Proceeding and the Trust
and/or Adviser may elect 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 Trust
and
Adviser
shall
not relieve the Trust
or
Adviser
from any
liability which they may have to the Administrator or any such person except
to
the extent that it has been materially prejudiced by such failure and has not
otherwise learned of such Proceeding. The
Administrator or such person shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be
at
the expense of the Administrator or of such person unless the employment of
such
counsel shall have been authorized in writing by the Trust
or
Adviser
in
connection with the defense of such Proceeding or the Trust
or
Adviser
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 such
indemnified party or parties 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 Trust
and
Adviser
(in
which case neither
the Trust nor the Adviser
shall
have the
right to direct the defense of such Proceeding on behalf of the indemnified
party or parties), in any of which events such fees and expenses shall be borne
by the Trust
or
Adviser
and paid
as incurred (it being understood, however, that the neither
the Trust nor Adviser
shall
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).
10.1.2 Neither
the Trust nor the Adviser
shall
be
liable
for any settlement of any Proceeding effected without either
the
Trust’s
or the Adviser’s
written
consent but if settled with the Trust’s
or Adviser’s
written
consent, the Trust
and
Adviser agree
to
indemnify and hold harmless the Administrator and any such person 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 paragraph
10.1.1,
then the
indemnifying parties
agree
that
they
shall be
liable for any settlement of any Proceeding effected without their
written
consent if (i) such settlement is entered into more than 60 Business Days after
receipt by such indemnifying parties
of the
aforesaid request, (ii) such indemnifying parties
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 parties
at least
30 Business Days’ prior notice of its intention to settle. No
indemnifying party shall, 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.
10.2 Subject
to Sections 7, 8 and 9 of this Agreement, the Administrator agrees to indemnify
and hold harmless the Trust,
a
particular Fund, and
the
Adviser, their
partners, stockholders, members, directors,
trustees,
officers and employees and any Affiliate of the foregoing, and the successors
and assigns of all of the foregoing persons, against any and all losses, claims,
damages, liabilities or expenses (including reasonable counsel fees and
expenses) resulting from any act, omission, error or delay or any claim, demand,
action or suit, in connection with or arising out of performance of its
obligations and duties under this Agreement, resulting from the willful
malfeasance, bad faith or negligence of the Administrator in the performance
of
such obligations and duties. The provisions of this Section 10 shall survive
the
termination of this Agreement.
10.2.1 If
any
Proceeding is brought against the Trust
or
Adviser
or any
such person in respect of which indemnity may be sought against the
Administrator pursuant to the foregoing paragraph, the Trust,
Adviser
or such
person shall promptly notify the Administrator in writing of the institution
of
such Proceeding and the Administrator may
elect
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 Administrator shall not
relieve the Administrator from any liability which they may have to the
Trust,
Adviser
or any
such person except to the extent that it has been materially prejudiced by
such
failure and has not otherwise learned of such Proceeding. The Trust,
Adviser
or such
person shall have the right to employ its or their own counsel in any such
case,
but the fees and expenses of such counsel shall be at the expense of the
Trust,
Adviser
or of
such person unless the employment of such counsel shall have been authorized
in
writing by the Administrator in connection with the defense of such Proceeding
or the Administrator 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 such indemnified party or parties 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 Administrator (in
which
case the Trust
or
Adviser
shall
not have the right to direct the defense of such Proceeding on behalf of the
indemnified party or parties), in any of which events such fees and expenses
shall be borne by the Administrator and paid as incurred (it being understood,
however, that the Administrator 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).
10.2.2 The
Administrator shall not be liable for any settlement of any Proceeding effected
without the Administrator’s written consent but if settled with the
Administrator’s written consent, the Administrator agrees to indemnify and hold
harmless the Trust,
Adviser
and any
such person 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
paragraph
10.2.1,
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 Business 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 Business Days’ prior notice of its intention to
settle. No indemnifying party shall, 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.
11. Reliance
by the Administrator on Opinions of Counsel and Opinions of Certified Public
Accountants.
The
Administrator may consult with counsel
regularly retained by the Administrator in respect of such matters or the
Trust’s
counsel in any case where so doing appears to the Administrator to be necessary
or desirable. The Administrator shall not be considered to have engaged in
any
misconduct or to have acted negligently and shall be without liability in acting
upon the advice of such
counsel.
The
Administrator may consult with a certified public accountant retained
by the Administrator in respect of such matters or
the
Fund’s Treasurer (or persons performing such function) in any case where so
doing appears to the Administrator to be necessary or desirable. The
Administrator shall not be considered to have engaged in any misconduct or
to
have acted negligently and shall be without liability in acting upon the advice
of such certified public accountant or of the Fund’s Treasurer or persons
performing such function.
12. Termination
of Agreement.
This
Agreement may be terminated by either party in accordance with the provisions
of
this Section 12.
12.1 This
Agreement shall have an initial term of two (2) years from the date hereof.
Thereafter, this Agreement shall automatically renew for successive one (1)
year
periods unless any party terminates this Agreement by written notice effective
no sooner than seventy-five (75) days following the date that notice to such
effect shall be delivered to the other parties at the
addresses
set
forth herein. Notwithstanding the foregoing provisions, the
Fund
or the Adviser (together, the “Fund Parties”) or the Administrator
may
terminate this Agreement at any time (a) for cause, which is a material breach
of the Agreement not cured within sixty (60) days, in which case termination
shall be effective upon written receipt of notice by the breaching
party,
(b) upon
thirty (30) days written notice by
the
Administrator to
the
Fund
Parties
in the
event that a Fund
Party
is
adjudged bankrupt or insolvent, or there shall be commenced against such
Fund
Party
a case
under any applicable bankruptcy, insolvency, or other similar law now or
hereafter in effect,
or (c)
upon thirty (30) days written notice by a Fund Party to the Administrator in
the
event that the Administrator is adjudged bankrupt or insolvent, or there shall
be commenced against the Administrator a case under any applicable bankruptcy,
insolvency, or other similar law now or hereafter in effect.
The
Administrator shall be responsible for completing all actions in progress when
such termination notice is given unless otherwise agreed.
12.2. Upon
termination of the Agreement in accordance with this Section 12, the
Trust
may
request the Administrator to promptly deliver to the Trust
or to
any designated third party all records created and maintained by the
Administrator pursuant to Section 3.1 of this Agreement, as well as any Fund
records maintained but not created by the Administrator. If such request is
provided in writing by the Trust
to the
Administrator within seventy-five (75) days of the date of termination of the
Agreement, the Administrator shall provide to the Trust
a
certification that all records created by the Administrator pursuant to its
obligations under Section 3.1 of this Agreement are accurate and complete.
After
seventy-five (75) days of the date of termination of this Agreement, no such
certification will be provided to the Trust
by the
Administrator and the Administrator is under no further obligation to ensure
that records created by the Administrator pursuant to Section 3.1 of this
Agreement are maintained in a form that is accurate or complete.
13. Confidentiality
and Privacy.
13.1 The
parties hereto agree that each shall treat confidentially the terms and
conditions of this Agreement and all information provided by each party to
the
other regarding its business and operations. All confidential information
provided by a party hereto shall be used by any other party hereto solely for
the purpose of rendering or obtaining services pursuant to this Agreement and,
except as may be required in carrying out this Agreement, shall not be disclosed
to any third party without the prior consent of such providing party. The
foregoing shall not be applicable to any information that is publicly available
when provided or thereafter becomes publicly available other than through a
breach of this Agreement, or that is required to be disclosed by or to any
Regulatory Authority, any auditor of the parties hereto, or by judicial or
administrative process or otherwise by Applicable Law.
13.2 In
the
course of carrying out its obligations under this Agreement, Administrator
shall
maintain physical, procedural and electronic safeguards to protect information
regarding the Funds
and
their
investors that Administrator
has
obtained or to which the Administrator
has
gained access.
14. Tape-recording.
The
parties consent to recording of any and all telephonic or other oral
instructions. This authorization will remain in effect until and unless revoked
by the Trust
or the
Administrator in writing. The parties further agree to solicit valid written
or
other consent from any of its employees, officers, directors or agents with
respect to telephone communications to the extent such consent is required
by
applicable law.
15. Procedures.
Procedures applicable to the Administrator services to be performed hereunder
may be established from time to time by agreement between the Trust
and the
Administrator. The Administrator shall have the right to utilize any
shareholder
accounting and recordkeeping systems that, in its reasonable
opinion,
enables it to perform
properly
any
services to be performed hereunder.
16. Entire
Agreement; Amendment.
This
Agreement constitutes the entire understanding and agreement of the parties
hereto and supersedes any other oral or written agreements heretofore in effect
between the parties with respect to the subject matter hereof. No provision
of
this Agreement may be amended or terminated except by a statement in writing
signed by the party against which enforcement of the amendment or termination
is
sought.
17. Severability.
In the
event any provision of this Agreement is determined to be void or unenforceable,
such determination shall not affect the remainder of this Agreement, which
shall
continue to be in force.
18. Headings.
The
section headings in this Agreement are for the convenience of reference only
and
shall not modify, define, expand or limit any of the terms or provisions
thereof.
19. Governing
Law.
This
Agreement shall be governed by and construed according to the laws of the State
of New York without giving effect to conflicts of law provisions thereof and
each of the parties hereto irrevocably consents to the exclusive jurisdiction
of
the United States District Court for the Southern District of New York or if
that court lacks or declines to exercise subject matter jurisdiction, the
Supreme Court of the State of New York, New York County. The Trust
irrevocably waives
any
objection each may now or hereafter have to the laying of venue of any action
or
proceeding in any of the aforesaid courts and any claim that any such action
or
proceeding has been brought in an inconvenient forum. Furthermore, each party
hereto irrevocably waives any right that it may have to trial by jury in any
action, proceeding or counterclaim arising out of or related to this Agreement
or the services contemplated hereby.
20. Notices.
Notices
and other writings delivered or mailed postage prepaid to the Trust
or
Adviser
shall be
addressed to the Trust/Adviser
c/o
Xxxxxxxx X. Xxxxxx
at 0000
Xxxxxx Xxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000,
or such
other address as the Trust
or
Adviser
may have
designated to the Administrator in writing, or to the Administrator at 00 Xxxxx
Xxxxxx, Xxxxxx, XX 00000, Attention: Manager, Fund Administration Department,
or
to such other address as the Administrator may have designated to the
Trust
and
Adviser
in
writing, shall be deemed to have been properly delivered or given hereunder
to
the respective addressee.
21. Binding
Effect; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties
hereto
and
their respective successors and assigns, provided that no party hereto may
assign this Agreement or any of its rights or obligations hereunder without
the
written consent of the other parties. Each party agrees that only the parties
to
this Agreement and/or their successors in interest shall have a right to enforce
the terms of this Agreement. Accordingly, no shareholder of a Fund or other
third party shall have any rights under this Agreement and such rights are
explicitly disclaimed by the parties.
22. Counterparts.
This
Agreement may be executed in any number of counterparts each of which shall
be
deemed to be an original. This Agreement shall become effective when one or
more
counterparts have been signed and delivered by each of the parties. A photocopy
or telefax of the Agreement shall be acceptable evidence of the existence of
the
Agreement and the Administrator shall be protected in relying on the photocopy
or telefax until the Administrator has received the original of the
Agreement.
23. Exclusivity.
The
services furnished by the Administrator hereunder are not to be deemed
exclusive, and the Administrator shall be free to furnish similar services
to
others.
24. Authorization.
Each
party
hereby
represents and warrants that it
has
authorized the execution and delivery of this Agreement and that authorized
persons of such
party
have
signed this Agreement, Appendices A, B and C and the fee schedule
hereto.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their duly authorized officers as of the date first
written above.
The
undersigned acknowledges that (I/we) have received a copy of this
document.
XXXXX
BROTHERS XXXXXXXX & CO.
By:________________________________
Name:
Title:
Date:
By:
________________________________
Name:
Xxxxxxxx
X. Xxxxxx
Title:
President
and Treasurer
Date:
AMERISTOCK
CORPORATION
By:
________________________________
Name:
Xxxxxxxx X. Xxxxxx
Title:
President
Date:
APPENDIX
A
Dated
as
of ________________________
Fund
Accounting Services
The
Administrator will provide the following fund accounting services to each Fund
each day that the New York Stock Exchange (“NYSE”) is open for business (each a
“Business Day”): transaction processing and review, custodial reconciliation,
securities pricing and investment accounting.
Transaction
Processing and Review.
The
Administrator shall input and reconcile the Fund’s investment activity including
with respect to:
|
·
|
Investment
taxlots
|
|
·
|
Income
|
|
·
|
Dividends
|
|
·
|
Principal
paydowns
|
|
·
|
Capital
activity
|
|
·
|
Expense
accruals
|
|
·
|
Cash
activity
|
|
·
|
Corporate
Reorganizations
|
Custodial
Reconciliation.
The
Administrator shall reconcile the following positions of the Fund against the
records of the Custodian:
|
1.
|
Holdings
of securities and other financial instruments
|
|
2.
|
Cash
including cash transfers, fees assessed and other investment related
cash
transactions
|
|
3.
|
Trade
settlements
|
Securities
Pricing. The
Administrator shall update each security position of each Fund as to the
following:
|
4.
|
Market
prices obtained from approved sources including those listed on Appendix
C
or Fair Valuations obtained from an Authorized Person of the
Fund
|
|
·
|
Xxxx
to market of non-base receivables/payables utilizing approved foreign
exchange quotations as quoted in Appendix
C
|
|
·
|
Xxxx
to market of non-base currency positions utilizing the approved sources
quoted in Appendix C or Fair Valuations obtained from an Authorized
Person
of the Fund
|
Investment
Accounting.
The
Administrator shall provide the following investment accounting services to
each
Fund:
|
o
|
Amortization/accretion
at the individual tax lot level
|
|
o
|
General
ledger entries
|
|
o
|
Book
value calculations
|
|
o
|
Trade
Date + 1 accounting
|
|
o
|
Calculation
of Net Asset Value Per Unit (“NAV”) as of the close of regular trading in
the U.S. Government securities markets (normally 3:00 p.m. Eastern
time)
|
Portfolio
Compliance Monitoring Services
The
Administrator shall perform the following compliance monitoring services with
respect to the investments of each Fund on each Business Day unless otherwise
specified (“Compliance Monitoring Services”):
|
·
|
Trade
date plus one monitoring of each Fund’s investments with respect to the
investment restrictions, policies and limitations as described in
the
current prospectus and statement of additional information, which
shall be
provided to the Administrator by the Trust, and agreed to by the
Administrator and the Trust
|
|
o
|
Monitoring
of policies, restrictions and limitations with respect to certain
derivative investments is performed monthly (or as
requested)
|
|
·
|
Trade
date plus one monitoring of each Fund’s investments with respect to the
1940 Act requirements and rules thereunder (including Rule 2a-7 if
applicable) and applicable Internal Revenue Code rules and regulations
|
|
o
|
Rule
17g-1 monitoring shall be performed monthly as
requested
|
|
o
|
Qualifying
income monitoring with respect to Subchapter M compliance shall be
performed monthly
|
|
·
|
Trade
date plus one monitoring of other fund investment restrictions, policies
and limitations at such times as may be agreed in writing by the
Trust and
Administrator
|
|
·
|
The
Administrator shall notify the Trust’s Chief Compliance Officer (“CCO”) or
such other Authorized Person as may be agreed to by the Trust in
the event
and at such times as the Administrator detects possible non-compliance
with a Fund’s investment restrictions, policies and limitations (“Daily
Exception Reporting”)
|
|
·
|
Provide
the Trust’s CCO or such other Authorized Person as may be agreed to by the
Fund a monthly report summarizing the results of the Fund Compliance
Monitoring Services (“Monthly Summary
Reporting”)
|
|
·
|
Provide
the Trust’s Board of Trustees a quarterly report summarizing the results
of the Fund Compliance Monitoring Services (“Quarterly Board Summary
Reporting”)
|
|
·
|
Assist
the Fund in producing quarterly brokerage-related reports for the
Trust’s
Board of Trustees as requested by the Trust and agreed to by the
Administrator
|
The
Administrator shall perform the following additional compliance monitoring
services with respect to each Fund once each Business Day:
|
·
|
Provide
the Trust’s CCO or such other Authorized Person as may be agreed to by the
Trust a daily portfolio compliance summary report (“Daily Summary
Reporting”)
|
Financial
Reporting Services
|
3
|
The
Administrator shall accumulate information for and prepare
|
|
3.1
|
Within
a 60-day production cycle, [one] annual and [one] semi-annual shareholder
report for each Fund per fiscal year, such preparation includes the
coordination of all printer and author edits, the review of printer
drafts, the coordination of the audit of the Fund by its independent
public auditor (e.g. manage open items lists, host weekly audit meeting,
etc.),
and the coordination of the mailing of the reports
|
|
3.2
|
[one]
annual report and [one] semi-annual report on Form
N-SAR
|
|
3.3
|
[one]
first fiscal quarter report and [one] third fiscal quarter report
on Form
N-Q
|
|
3.4
|
[one]
annual report and [one] semi-annual report on Form
N-CSR
|
|
3.5
|
[one]
annual Rule 24f-2 Notice
|
|
4
|
Upon
acceptance of each above-mentioned report by the Fund’s Treasurer and/or
Chief Financial Officer, the Administrator shall edgarize and file
such
reports as required, including any applicable executed officer
certifications or other exhibits
|
The
Administrator shall provide the following additional services as requested
by
the Trust:
|
·
|
Quarterly
calculation and reporting of each Fund’s portfolio
turnover
|
|
·
|
Preparation
of a Monthly and/or Quarterly “Survey” for each survey company identified
by the Fund
|
|
·
|
Preparation
of the following quarterly reports for the Trust’s Board of Trustees (in
BBH Reporting Format or such other format as agreed to between the
Administrator and the Fund): Summary Schedule of Investments and
Net Asset
Roll Forward
|
|
·
|
Preparation
of the following additional quarterly reports for the Trust’s Board of
Trustees/Directors (in BBH Reporting Format or such other format
as agreed
to between the Administrator and the Fund): Statements of Assets
and
Liabilities, Statements of Operations, Statements of Changes in Net
Assets, Financial Highlights, Schedules of Investments, Top Five
Industry,
Country and Holdings Reports and Sector, Industry and Bond Rating
Analyses
|
|
·
|
Publish
on an ongoing basis through AMEX and/or the Trust’s website the list of
securities to be received in connection with the Funds’ sale of Creation
Units, the list of securities to be provided in connection with the
Funds’
redemption of Creation Units, the daily net asset value of each Fund,
appropriate performance data for the Funds, and such other information
as
may be agreed upon between the Trust and Administrator from time
to
time
|
Assistant
Treasurer Services
The
Administrator shall perform the following services as requested by the Fund’s
Treasurer (or person performing such function):
|
·
|
Prepare
and obtain authorization of Fund expense invoices on a bi-monthly
basis
|
|
·
|
Prepare
the Fund’s quarterly budget and make recommendations for adjustments as
appropriate
|
|
·
|
Prepare
a monthly expense pro forma for the
Fund
|
|
·
|
Provide
an “Assistant Treasurer” who may be approved as an officer of the Trust by
the Board of Trustees
|
|
·
|
Provide
consultative services with respect to financial matters of the Fund
as may
be requested and agreed to by the Fund and Administrator from time
to
time
|
The
Administrator shall perform the following additional services as requested
by
the Fund’s Treasurer:
|
·
|
Prepare
Form 1099 reporting for Fund’s independent
Trustees
|
|
·
|
Prepare
budgets and expense pro formas for new series, Funds or classes and/or
with respect to mergers, acquisitions and restructurings, as may
be
requested and agreed to between the Trust and
Administrator
|
Tax
Support Services
The
Administrator shall provide the following tax support services to the
Fund:
|
·
|
Prepare
fiscal year end and excise tax distribution
calculations;
|
|
·
|
Calculate
and prepare monthly, quarterly and annual income distributions as
described in each Fund’s prospectus
|
|
·
|
Calculate
and repare annual capital gain distribution(s) including spillback
amounts
as required
|
|
·
|
Prepare
tax-related ROCSOP entries for fund accounting
purposes
|
|
·
|
Review
required tax disclosures (such as tax cost, long term capital gain
and tax
exempt designation, foreign tax credits, dividend received deductions
and
qualified dividend income pass throughs) in the Fund’s financial
statements
|
|
·
|
Prepare
and file federal, state and local (if any) income tax returns, including
tax return extension requests
|
|
·
|
Prepare
shareholder year-end tax
information
|
|
·
|
Calculate
the amounts and characterizations of distributions declared during
the
calendar year for Form 1099/DIV
reporting
|
|
·
|
Consult
with the Fund’s Authorized Persons regarding potential passive foreign
investment companies (“PFICs”)
|
|
·
|
Prepare
wash sales calculations and other differences required for tax
purposes
|
|
·
|
Consult
with the Fund’s Authorized Persons on various tax issues as requested and
with the Fund’s independent public accountant when
appropriate
|
|
·
|
Provide
tax research as requested
|
The
Administrator shall provide the following additional tax support services to
the
Fund:
|
·
|
Prepare
and maintain tax accruals for convertible preferred stock
investments
|
|
·
|
Prepare
available tax equalization
schedules
|
Corporate
Secretarial Services
The
Administrator shall perform the following secretarial services:
|
·
|
Monitor
good standing of the Fund in its state of organization as may be
required
|
|
·
|
Provide
an “Assistant Secretary” who may be approved as an officer of the Trust by
the Board of Trustees
|
|
·
|
Maintain
calendar for Board matters/approvals
|
|
·
|
Prepare
quarterly Board and Audit Committee meeting materials, including
notices,
scripts, agendas, resolutions, memoranda, minutes, and mail to Board
of
Trustees and such other persons as instructed by the Trust
|
|
·
|
Attend
quarterly Board and Audit Committee meetings, take minutes of the
meetings, make presentations as required and follow up on matters
raised
at the meetings
|
|
·
|
In
accordance with Rule 31a-2 under the 1940 Act, maintain those records
received or created by the Administrator, which are required to be
maintained by Rule 31a-1(b)(4) under the 1940
Act
|
Regulatory
Support Services
The
Administrator shall perform the following regulatory services for the
Fund:
|
¨
|
Maintain
calendar for all regulatory matters
|
|
¨
|
Prepare
one annual update to the Fund’s registration statement and file the same
with the SEC (includes coordination of the update with Fund personnel,
Fund counsel and independent
auditors)
|
|
¨
|
Prepare
up to four supplements (“Stickers”) to the Fund’s registration statement
per calendar year
|
|
·
|
Coordinate
the printing and mailing of prospectuses and supplements provided
that the printing and mailing services will be performed by a third
party
selected and paid for by the Fund
|
|
¨
|
File
the fidelity bond with the SEC
|
|
¨
|
Assist
the Fund in preparing one annual Form N-PX filing per calendar year
and
file the same with the SEC
|
|
¨
|
Review
and comment on any portions of the annual and semi-annual shareholder
reports not prepared by Administrator pursuant to this Appendix (see
Financial Reporting Services above)
|
|
¨
|
Assist
in monitoring regulatory proposals and changes that may affect the
Fund
|
The
Administrator shall perform the following additional regulatory services for
the
Fund:
|
·
|
In
the event a shareholder meeting is called for the Fund, file proxy
materials with the SEC, coordinate the printing and mailing of such
materials, coordinate with the Fund’s solicitor in monitoring the
shareholder vote solicitation and tabulation
|
|
·
|
Prepare
“off cycle” amendments to the Fund’s registration statement, including
those for new series, Portfolios or classes, changes in advisory
relationships, mergers and restructurings, as may be requested and
agreed
to between the Fund and
Administrator
|
|
·
|
Review
and comment on advertising and sales literature as requested by the
Fund
|
“Blue
Sky” Support Services
If
state
filings are necessary, the Administrator shall select and monitor an independent
third party service provider to provide for reasonable and necessary services
for compliance with the securities regulations of the fifty states of the United
States (“Blue Sky Compliance”) on such terms as the Fund shall direct, or in the
absence of such direction, as the Administrator shall reasonably deem
appropriate, provided, however, that such arrangement shall require that such
service provider act with reasonable care in discharging its duties. The
Administrator shall deliver to the Fund, or cause to be delivered to the Fund,
regular reports and notices with respect to Blue Sky Compliance and shall be
responsible to use reasonable care to enforce the terms of its agreement with
the service provider on the Fund’s behalf. The Fund shall be responsible for
providing copies of each Portfolio’s current prospectus and other relevant
documents and information relating to the Fund as may be reasonably required
for
Blue Sky Compliance.
Transfer
Agency Services
The
Administrator shall perform the following transfer agency services:
I. Issuance
and Redemption of Fund Units. It is agreed and understood that each Fund, and
the Administrator on each Fund’s behalf, shall issue and redeem Units of each
Fund in blocks of 100,000 Units (“Creation Baskets” and “Redemption Baskets,”
respectively) to and from such persons as are identified by the Fund as
“Authorized Purchasers” or “Authorized Participants.”
|
A.
|
Pursuant
to such purchase orders that the Administrator as the Index Receipt
Agent
shall receive from the ALPS Distributors, Inc. (“Distributor”) and
pursuant to the procedures set forth in the Authorized Purchaser
Agreement
with respect to the Trust, Administrator shall transfer appropriate
trade
instructions to the Fund’s custodian, Xxxxx Brothers Xxxxxxxx & Co.
(“Custodian”) and pursuant to such orders register the appropriate number
of book entry only Fund Units in the name of The Depository Trust
Company
(“DTC”) or its nominee as a unitholder (each a “Unitholder”) of the
Fund.
|
| B. |
Pursuant
to such redemption orders that Index Receipt Agent shall receive
from the
Marketing Agent, pursuant to the procedures set forth in the Authorized
Purchaser Agreement entered into by the Fund, Administrator shall
transfer
appropriate trade instructions to the Custodian and, pursuant to
such
orders, redeem the appropriate number of Fund Units that are delivered
to
the designated DTC Participant Account of the Custodian for redemption
and
debit such Units from the account of the Unitholder on the register
of the
Fund.
|
| C. |
On
behalf of the Fund, Administrator shall issue Fund Units in Creation
Baskets for settlement with purchasers through DTC as the purchaser
is
authorized to receive. Beneficial ownership of Fund Units shall be
shown
on the records of DTC and DTC Participants and not on any records
maintained by the Administrator. In issuing Fund Units through DTC
to an
Authorized Purchaser, Administrator shall be entitled to rely upon
the
latest Instructions that are received from the Distributor by the
Administrator as Index Receipt Agent concerning the issuance and
delivery
of such Units for settlement.
|
| D. |
Administrator
shall not issue on behalf of a Fund any Fund Units where it has received
an Instruction from the Trust or an Authorized Person or Distributor
or
written notification from any federal or state authority that the
sale of
the Fund Units has been suspended or discontinued, and Administrator
shall
be entitled to rely upon such Instructions or written
notification.
|
| E. |
Upon
the issuance of Fund Units as provided herein, Administrator shall
not be
responsible for the payment of any original issue or other taxes,
if any,
required to be paid by the Fund, the Trust or the Authorized Purchaser
in
connection with such issuance.
|
| F. |
Fund
Units may be redeemed in accordance with the procedures set forth
in the
relevant Authorized Purchaser Agreement and Administrator shall duly
process all redemption requests.
|
| G. |
Administrator
will act only upon Instruction from the Trust or an Authorized Person
in
addressing any failure in the delivery of cash, treasuries and/or
Shares
in connection with the issuance and redemption of Fund
Units.
|
II. Payment
of Dividends and Distributions on Fund Units.
| A. |
As
instructed by the Trust, the Administrator shall prepare and make
payments
for dividends and distributions declared by the
Trust.
|
| B. |
The
Trust shall promptly after the declaration of any dividend or distribution
furnish to the Administrator a statement signed by an Authorized
Person:
(i) indicating that dividends have been declared on a specific periodic
basis and Instructions for determining the date of the declaration
of such
dividend or distribution, the date of payment thereof, the record
date as
of which unitholders shall be entitled to payment, the total amount
payable to the unitholders and the total amount payable to Administrator
as transfer agent on the payment date; or (ii) setting forth the
date of
the declaration of any dividend or distribution, the date of payment
thereof, the record date as of which the unitholders are entitled
to
payment, and the amount payable per unit to each unitholder as of
that
date and the total amount payable to Administrator as transfer agent
on
the payment date.
|
| C. |
When
dividends or distributions have been declared on a specific periodic
basis, the Administrator shall calculate the total dollar amount
of the
dividend or distribution and notify the Trust of this amount. When
instructed by the Trust, the Administrator shall direct the Custodian
to
place in a separate cash account maintained by the Administrator
funds
equal to the total cash amount of the dividend or distribution to
be paid
out. Should the Custodian determine that it does not have sufficient
cash
in the Custody Account to pay the total amount of the dividend or
distribution to the Administrator, the Administrator shall advise
the
Trust and/or the Trust shall either adjust the rate of the dividend
or
distribution or provide additional cash directly to the Custodian
for
credit to the separate cash account maintained by the Custodian.
When
instructed by the Trust, the Administrator shall direct the Custodian
to
make payment of such dividend or distribution to the account of each
unitholder.
|
|
D.
|
Should
the Administrator or the Custodian not receive from the Fund sufficient
cash to make payment as provided in the immediately preceding Subsection,
the Administrator shall notify the Trust, and the Administrator shall
withhold payment to the unitholders until sufficient cash is provided
to
the Custodian and the Administrator shall not be liable for any claim
arising out of such withholding.
|
III. Recordkeeping.
| A. |
The
Administrator shall record the issuance of Fund Creation Baskets
and
maintain, pursuant to Rule 17Ad-14(e) under the Securities Exchange
Act of
1934, as amended, a record of the total number of Fund Creation Baskets
that are authorized, based upon data provided to Administrator by
the
Trust, issued and outstanding. The Administrator shall also provide
the
Trust on a regular basis with the total number of Fund Units authorized,
issued and outstanding; provided however that the Administrator shall
not
be responsible for monitoring the issuance of such Units or compliance
with any laws relating to the validity of the issuance or the legality
of
the sale of such Units.
|
By:
________________________________
Name:
Title:
Date:
By:
________________________________
Name:
Title:
Date:
APPENDIX
B
List
of Authorized Persons
|
1.
|
All
Authorized Purchasers.
|
|
2.
|
The
Trust
|
|
3.
|
Ameristock
Corporation
|
By:
________________________________
Name:
Title:
Date:
By:
________________________________
Name:
Title:
Date:
APPENDIX
C TO
AUTHORIZED
SOURCES
AUTTThe
Trust
hereby acknowledge that the Administrator is authorized to use the following
authorized sources for financial reporting, pricing (including corporate
actions, dividends and rights offering), and foreign exchange quotations, to
assist it in fulfilling its obligations under the aforementioned
Agreement.
BLOOMBERG
EXTEL
(LONDON)
FUTURES
COMMISSION MERCHANTS
FUND
MANAGERS
INTERACTIVE
DATA CORPORATION
BROKERS
REUTERS
SUBCUSTODIAN
BANKS
TELEKURS
VALORINFORM
(GENEVA)
REPUTABLE
FINANCIAL PUBLICATIONS
STOCK
EXCHANGES
FINANCIAL
INFORMATION INC. CARD
XX
XXXXX
FRI
CORPORATION
By:
________________________________
Name:
Title:
Date:
By:________________________________
Name:
Title:
Date:
APPENDIX
D
BBH
Pricing Policies
