Exhibit 10.4
FORM OF
TRANSFER AGENCY AND SERVICE
AGREEMENT
AGREEMENT made as of the
day of
, 2006, by and between DB CURRENCY INDEX VALUE FUND, a Delaware
statutory trust, having its principal office and place of business
at 60 Wall Street, New York, NY 10005 (the “Trust”) and
THE BANK OF NEW YORK, a New York banking company having its
principal office and place of business at One Wall Street, New
York, New York 10286 (the “Bank”).
WHEREAS, the Trust and designated
agents will issue for purchase and redeem shares of the Trust only
in aggregations of shares known as “Creation Units”
(currently 200,000 shares) (each a “Creation
Unit”);
WHEREAS, The Depository Trust
Company, a limited purpose trust company organized under the laws
of the State of New York (“DTC”), or its nominee
(Cede & Co.), will be the initial record or registered
owner (the “Shareholder”) of all shares;
WHEREAS, the Trust desires to
appoint the Bank as its transfer agent, dividend disbursing agent,
and agent in connection with certain other activities, and the Bank
desires to accept such appointment;
NOW, THEREFORE, in consideration of
the mutual covenants herein contained, the parties hereto agree as
follows:
1. Terms of Appointment; Duties of
the Bank
1.1 Subject to the terms and
conditions set forth in this Agreement, the Trust, hereby employs
and appoints the Bank to act as, and the Bank agrees to act as its
transfer agent for the authorized and issued shares of beneficial
interest, no par value per share of the Trust
(“Shares”), and as the Trust’s dividend
disbursing agent.
1.2 The Bank agrees that it will
perform the following services:
(a) In accordance with the terms and
conditions of the form of Participant Agreement, attached hereto as
Exhibit A, the Bank shall:
(i) Perform and facilitate the
performance of purchases and redemption of Creation
Units;
(ii) Prepare and transmit by means
of DTC’s book-entry system payments for dividends and
distributions declared by the Trust;
(iii) Maintain the record of the
name and address of the Shareholder and the number of Shares issued
by the Trust and held by the Shareholder;
(iv) Record the issuance of Shares
of the Trust and maintain a record of the total number of Shares of
the Trust, and, which are authorized, based upon data provided to
it by
the Trust. The Bank shall have no obligation,
when recording the issuance of Shares, to monitor the issuance of
such Shares or to take cognizance of any laws relating to the issue
or sale of such Shares, which functions shall be the sole
responsibility of the Trust.
(v) Prepare and transmit to the
Trust and to any applicable securities exchange (as specified to
the Bank by the Trust) information with respect to purchases and
redemptions of Shares;
(vi) On days that the Trust may
accept orders for purchases or redemptions, calculate and transmit
to the Bank and the Trust the number of outstanding
Shares;
(vii) On days that the Trust may
accept orders for purchases or redemptions (pursuant to the
Participant Agreement), transmit to the Bank, the Trust and DTC the
amount of Shares purchased on such day;
(viii) Confirm to DTC the number of
Shares issued to the Shareholder, as DTC may reasonably
request;
(ix) Extend the voting rights to the
Shareholder and/or beneficial owners of Shares in accordance with
the policies and procedures of DTC for book-entry only
securities;
(x) Maintain those books and records
of the Trust specified by the Trust in Schedule A attached hereto;
and
(xi) Prepare a monthly report of all
purchases and redemptions during such month on a gross transaction
basis. The monthly report shall show the counterpart and amount of
each purchase on a daily basis net number of Shares either redeemed
or created for such Business Day.
(b) In addition to and neither in
lieu nor in contravention of the services set forth in the above
paragraph (a), the Bank shall: perform the customary services of a
transfer agent and dividend disbursing agent including but not
limited to: maintaining the account of the Shareholder, obtaining a
list of DTC participants holding interests in the Global
Certificate at the request of the Trust, mailing proxy materials,
shareholder reports and prospectuses to the Shareholder or DTC
participants or beneficial owners of Shares at the request of
the Trust and those services set forth on Schedule A attached
hereto.
(c) The following shall be delivered
to DTC for delivery to beneficial owners in accordance with the
procedures for book-entry only securities of DTC:
(i) Annual and semi-annual reports
of the Trust;
(ii) Proxies, proxy statements and
other proxy soliciting materials;
(iii) Prospectus and amendments and
supplements to the Prospectus, including stickers; and
(iv) Other communications as may be
required by law or reasonably requested by the Trust.
-2-
(d) If the Shares are represented by
individual Certificates, the Bank shall perform the services agreed
to in writing by the Bank and the Trust.
(e) The Bank shall provide
additional services (if any) on behalf of the Trust
(i.e., escheatment services) which may be agreed upon in
writing between the Trust and the Bank.
2. Fees and Expenses
2.1 The Bank shall receive from the
Trust such compensation for the Transfer Agent’s services
provided pursuant to this Agreement as may be agreed to from time
to time in a written fee schedule approved by the parties. The fees
are accrued daily and billed monthly and shall be due and payable
upon receipt of the invoice. Upon the termination of this Agreement
before the end of any month, the fee for the part of the month
before such termination shall be prorated according to the
proportion which such part bears to the full monthly period and
shall be payable upon the date of termination of this
Agreement.
2.2 In addition to the fee paid
under Section 2.1 above, the Trust agrees to reimburse the
Bank for out-of-pocket expenses, including but not limited to
confirmation production, postage, forms, telephone, microfilm,
microfiche, tabulating proxies, records storage, or advances
incurred by the Bank for the items set out in the fee schedule
attached hereto or relating to dividend distributions and reports
(whereas all expenses related to creations and redemptions of Fund
securities shall be borne by the relevant authorized participant in
such creations and redemptions). In addition, any other expenses
incurred by the Bank at the request or with the consent of the
Trust, will be reimbursed by the Trust.
2.3 The Trust agrees to pay all fees
and reimbursable expenses within ten business days following the
receipt of the respective billing notice accompanied by supporting
documentation, as appropriate. Postage for mailing of dividends,
proxies, Trust reports and other mailings to all shareholder
accounts shall be advanced to the Bank by the Trust at least seven
(7) days prior to the mailing date of such
materials.
3. Representations and Warranties of
the Bank
3.1 The Bank represents and warrants
to the Trust that:
It is a banking company duly
organized and existing and in good standing under the laws of the
State of New York.
It is duly qualified to carry on its
business in the State of New York.
It is empowered under applicable
laws and by its Charter and By-Laws to act as transfer agent and
dividend disbursing agent and to enter into and perform this
Agreement.
All requisite corporate proceedings
have been taken to authorize it to enter into and perform this
Agreement.
-3-
It has and will continue to have
access to the necessary facilities, equipment and personnel to
perform its duties and obligations under this Agreement.
4. Representations and Warranties of
the Trust
4.1 The Trust represents and
warrants to the Bank that:
It is a statutory trust duly
organized and existing and in good standing under the laws of
Delaware.
It is empowered under applicable
laws and by its Amended and Restated Declaration of Trust and Trust
Agreement to enter into and perform this Agreement.
All corporate proceedings required
by said Amended and Restated Declaration of Trust and Trust
Agreement have been taken to authorize it to enter into and perform
this Agreement.
A registration statement under the
Securities Act of 1933, as amended, on behalf of the Trust is
currently effective and will remain effective, and appropriate
state securities law filings have been made and will continue to be
made, with respect to all Shares of the Trust being offered for
sale.
5. [Section Reserved]
6. Indemnification
6.1 The Bank shall not be
responsible for, and the Trust shall indemnify and hold the Bank
harmless from and against, any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability
(“Losses”) arising out of or attributable
to:
(a) All actions of the Bank or its
agents or subcontractors required to be taken pursuant to this
Agreement, provided that such actions are taken without gross
negligence, or willful misconduct.
(b) The Trust’s negligence or
willful misconduct.
(c) The breach of any representation
or warranty of the Trust hereunder.
(d) The conclusive reliance on or
use by the Bank or its agents or subcontractors of information,
records, documents or services which (i) are received by the
Bank or its agents or subcontractors, and (ii) have been
prepared, maintained or performed by the Trust or any other person
or firm on behalf of the Trust including but not limited to any
previous transfer agent or registrar.
(e) The conclusive reliance on, or
the carrying out by the Bank or its agents or subcontractors of any
instructions or requests of the Trust on behalf of
the Trust.
(f) The offer or sale of Shares in
violation of any requirement under the federal securities laws or
regulations or the securities laws or regulations of any state that
such Shares be
-4-
registered in such state or in violation of any
stop order or other determination or ruling by any federal agency
or any state with respect to the offer or sale of such Shares in
such state.
6.2 At any time the Bank may apply
to any officer of the Trust for instructions, and may consult with
legal counsel of their choosing with respect to any matter arising
in connection with the services to be performed by the Bank under
this Agreement, and the Bank and its agents or subcontractors shall
not be liable and shall be indemnified by the Trust for any action
taken or omitted by it in reliance upon such instructions or upon
the advice or opinion of such counsel and shall promptly advise the
Trust of such advice or opinion (except for actions or omissions by
Bank taken with negligence or willful misconduct). The Bank, its
agents and subcontractors shall be protected and indemnified in
acting upon any paper or document, reasonably believed to be
genuine and to have been signed by the proper person or persons, or
upon any instruction, information, data, records or documents
provided the Bank or its agents or subcontractors by machine
readab
