CERES MANANGED FUTURES LLC UMB FUND SERVICES, INC. TRANSFER AGENCY AGREEMENT
Exhibit 10.2
Conformed Copy
CERES MANANGED FUTURES LLC
UMB FUND SERVICES, INC.
THIS TRANSFER AGENCY AGREEMENT (the “Agreement”) is made as of this 17th day of August, 2017 (the “Effective Date”), by and between each of the entities individually and not jointly, as listed on Schedule A hereto (each a “Fund”, and, collectively, the “Funds”), Ceres Managed Futures LLC, a Delaware limited liability company (the “General Partner” or “CMF”) and UMB Fund Services, Inc., a Wisconsin corporation, its successors and assigns (the “Transfer Agent”).
WHEREAS, each Fund is (except as otherwise noted on Schedule A) a New York limited partnership and is not required to be registered as an investment company under the 1940 Act (as defined below) and authorized to issue units of partnership interest in each Fund (“Units”); and
WHEREAS, each Fund, the General Partner and Transfer Agent desire to enter into an agreement pursuant to which Transfer Agent shall provide Services (as defined below) to the Funds; and
WHEREAS, it is contemplated that additional Funds may become parties to this Agreement by written consent of the parties hereto and in accordance with Section 10(c).
NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:
1. Definitions In addition to any terms defined in the body of this Agreement, the following capitalized terms shall have the meanings set forth hereinafter whenever they appear in this Agreement:
“1933 Act” shall mean the Securities Act of 1933, as amended.
“1934 Act” shall mean the Securities Exchange Act of 1934, as amended.
“1940 Act” shall mean the Investment Company Act of 1940, as amended.
“Authorized Person” shall mean any individual or individuals authorized by the General Partner to provide Transfer Agent with Instructions on behalf of a Fund, whose name(s) shall be certified to Transfer Agent from time to time pursuant to Section 3(b) of this Agreement. Such Authorized Person has the authority to appoint additional Authorized Persons, to limit or revoke the authority of any previously designated Authorized Person, and to certify to Transfer Agent the names of the Authorized Persons from time to time.
“Commission” shall mean the U.S. Securities and Exchange Commission.
“Commodity Trading Advisor” shall mean each entity that manages assets and funds of a Fund allocated to it for investment and reinvestment of such assets and funds in commodity interests, including commodity futures, options on futures and forward contracts.
“Custodian” shall mean the Fund’s clearing futures commission merchant for, if applicable, the financial institution appointed as custodian under the terms and conditions of a custody agreement between the financial institution and the Fund, or its successor.
“Instructions” shall mean an oral communication from an Authorized Person or a written communication signed by an Authorized Person and actually received by Transfer Agent. Instructions shall include manually executed originals, telefacsimile transmissions of manually executed originals or electronic communications.
“Limited Partner” shall mean a record owner of Units of the Fund.
“Offering Document” shall mean a Fund’s then current Private Placement Offering Memorandum and Disclosure Document including all supplements thereto.
“Offering Price” shall mean the price per Unit that the Units will be offered for sale calculated in accordance with the Fund’s then current Offering Document.
“Organizational Document” shall mean the Limited Partnership Agreement or other similar operational document of a Fund, as the case may be, as the same may be amended from time to time.
“Services” shall mean the transfer agency and dividend disbursement services described on Schedule B hereto and such additional services as may be agreed to by the parties from time to time and set forth in an amendment to Schedule B.
“Limited Partner Units” means Units of limited partnership owned by Limited Partners of a Fund.
2. Appointment and Services
(a) Transfer Agent is hereby appointed as transfer agent of all Units and is hereby authorized to provide Services during the term of this Agreement and on the terms set forth herein. It is understood and agreed that Transfer Agent will not provide the Services with respect to any Limited Partners that were Limited Partners as of the Effective Date. Subject to the direction and control of the General Partner and utilizing information provided by the Fund and its current and prior agents and service providers, Transfer Agent will provide the Services in accordance with the terms of this Agreement. Notwithstanding anything herein to the contrary, Transfer Agent shall not be required to provide any Services or information that it believes, in its sole discretion, to represent dishonest, unethical or illegal activity. In no event shall Transfer Agent provide any investment advice or recommendations to any party in connection with its Services hereunder.
(b) Transfer Agent may from time to time, in its reasonable discretion, with prior notice to the Fund, appoint one or more other parties to carry out some or all of its duties under this Agreement, provided that Transfer Agent shall remain responsible to the Fund for all such delegated responsibilities in accordance with the terms and conditions of this Agreement, in the same manner and to the same extent as if Transfer Agent were itself providing such Services.
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(c) Transfer Agent’s duties shall be confined to those expressly set forth herein, and no implied duties are assumed by or may be asserted against Transfer Agent hereunder. The Services do not include correcting, verifying or addressing any prior actions or inactions of the Fund or by any other current or prior agent or service provider. To the extent that Transfer Agent agrees to take such actions, those actions shall be deemed part of the Services.
(d) Transfer Agent shall not be responsible for the payment of any original issue or other taxes required to be paid by the Fund in connection with the issuance of any Units in accordance with this Agreement.
(e) Processing and Procedures
(i) Transfer Agent agrees to accept subscription applications and redemption requests with respect to the Units of the Fund via postal mail, electronic delivery or personal delivery on each business day in accordance with the Fund’s Offering Documents; provided, however, that Transfer Agent shall only accept subscription applications from jurisdictions in which the Units are qualified or otherwise eligible under applicable law(s) for sale, as indicated from time to time by the Fund or pursuant to an Instruction (all sales of Units to U.S. persons in a non-U.S. jurisdiction to be effectuated upon an Instruction from the Fund). It is hereby agreed that with respect to sales to U.S. persons in any non-U.S. jurisdiction, the Fund will not issue an Instruction to the Transfer Agent to accept such subscription applications until the Fund has confirmed either (a) that there are no applicable requirements to qualify or register Units in such jurisdiction or (b) that the Fund has complied with any such requirements to qualify or register the Units in such jurisdiction. Transfer Agent shall not be required to issue any Units after it has received from an Authorized Person or from an appropriate federal or state authority written notification that the sale of Units has been suspended or discontinued, and Transfer Agent shall be entitled to rely upon such written notification. Payment for Units shall be in the form of a check, wire transfer, Automated Clearing House transfer (“ACH”) or such other methods to which the parties shall mutually agree.
(ii) Upon receipt of a redemption request and monies paid to it by the Custodian in connection with a redemption of Units, Transfer Agent shall redeem the Units and after making appropriate deduction for any withholding of taxes required of it by applicable federal law, make payment in accordance with the Fund’s redemption and payment procedures described in the Fund’s Offering Documents.
(iii) In connection with each subscription for and each redemption of Units, Transfer Agent shall send such statements as are prescribed by the federal securities laws applicable to transfer agents or as described in the Fund’s Offering Documents. It is understood that certificates for Units have not been and will not be offered by the Fund or made available to Limited Partners.
(iv) Transfer Agent and the Fund shall establish procedures for effecting subscriptions and redemptions consistent with the terms of the Fund’s Offering Documents. Transfer Agent agrees to
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act in accordance with such procedures unless (i) it has received an Instruction not to do so, (2) it is permitted not to follow such procedures in accordance with the terms of this Agreement or (3) it is prohibited to do so by applicable law. Transfer Agent may establish such additional procedures, rules and requirements governing the purchase or redemption of Units, as it may deem advisable and consistent with the Fund’s Offering Documents and industry practice, provided that Transfer Agent will provide prior notice to the Fund of the establishment of any additional procedures, rules and requirements only applicable to the Fund. Transfer Agent shall not be liable, and shall be held harmless by the Fund, for its actions or omissions which are consistent with the foregoing procedures.
(f) Records
(i) Transfer Agent shall keep those records specified in Schedule D hereto with respect to the Services in the form and manner, and for such period, as it may deem advisable but not inconsistent with the rules and regulations regarding commodity pools required to be maintained by commodity pool operators by the Commodity Futures Trading Commission (“CFTC”) including, without limitation, CFTC Rule 1.31. Transfer Agent may deliver to the General Partner from time to time at Transfer Agent’s discretion, for safekeeping or disposition by Transfer Agent in accordance with law, such records, papers and documents accumulated in the execution of its duties as transfer agent, as Transfer Agent may deem expedient, other than those which Transfer Agent is itself required to maintain pursuant to applicable laws and regulations. The Fund shall assume all responsibility for any failure thereafter to produce any record, paper, or other document so returned, if and when required. The records specified in Schedule D hereto maintained by Transfer Agent, which have not been previously delivered to the Fund pursuant to the foregoing provisions of this paragraph, shall be considered to be the property of the Fund, shall be made available upon request for inspection by the General Partner and auditors of the Fund. Notwithstanding anything contained herein to the contrary, Transfer Agent shall be permitted to maintain copies of any such records, papers and documents to the extent necessary to comply with the recordkeeping requirements of federal and state securities laws, tax laws and other applicable laws.
(g) Anti-Money Laundering (“AML”) Services
(i) Background In order to assist its transfer agency clients with their AML responsibilities under the USA PATRIOT Act of 2001, the Bank Secrecy Act of 1970, the customer identification program rules jointly adopted by the Commission and the U.S. Treasury Department and other applicable regulations adopted thereunder (the “AML Laws”), Transfer Agent offers various tools designed to: (a) aid in the detection and reporting of potential money laundering activity by monitoring certain aspects of Limited Partner activity; and (b) assist in the verification of persons opening accounts with the Fund and determine whether such persons appear on any list of known or suspected terrorists or terrorist organizations (“AML Monitoring Activities”). In connection with the AML Monitoring Activities, Transfer Agent may encounter Limited Partner activity that would require it to file a Suspicious Activity Report (“SAR”) with the Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”), as required by 31 CFR 103.15(a)(2) (“Suspicious Activity”). The Fund has, after review, selected various procedures and tools offered by Transfer Agent to comply with its AML and customer identification program obligations under the AML Laws (the “AML Procedures”), and desires to implement the AML Procedures as part of its overall AML program and, subject to the terms of the AML Laws, delegate to Transfer Agent the day-to-day operation of the AML Procedures on behalf of the Fund.
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(ii) Delegation The Fund acknowledges that it has had an opportunity to review, consider and select the AML Procedures and the Fund has determined that the AML Procedures, as part of the Fund’s overall AML program, are reasonably designed to prevent the Fund from being used for money laundering or the financing of terrorist activities and to achieve compliance with the applicable provisions of the AML Laws. Based on this determination, the Fund hereby instructs and directs Transfer Agent to implement the AML Procedures on its behalf, as such may be amended or revised from time to time. The Fund and Transfer Agent hereby agree that the Transfer Agent’s implementation of the AML Procedures will include the services set forth under Schedule B hereto. The Fund hereby also delegates to Transfer Agent the authority to report Suspicious Activity to FinCEN.
(iii) SAR Filing Procedures
(A) When Transfer Agent observes any Suspicious Activity, Transfer Agent shall prepare a draft of a SAR on Form SAR-SF, and shall send a copy to ▇▇▇▇.▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ for review. Transfer Agent shall complete each SAR in accordance with the procedures set forth in 31 CFR §103.15(a)(3), with the intent to satisfy the reporting obligation of both Transfer Agent and the Fund. Accordingly, the SAR shall include the name of both Transfer Agent and the Fund, and shall include the words, “joint filing” in the narrative section.
(B) The SAR shall be reviewed and comments, if any, provided to Transfer Agent within a time frame sufficient to permit Transfer Agent to file the SAR in accordance with the deadline set forth in 31 CFR §103.15(b)(3). Upon receipt of final approval from the Fund, Transfer Agent (or its affiliate) shall file the SAR in accordance with the procedures set forth in 31 CFR §103.15(b).
(C) Transfer Agent shall provide to the Fund a copy of each SAR filed, together with supporting documentation. In addition, Transfer Agent shall maintain a copy of the same for a period of at least five (5) years from the date of the SAR filing.
(D) Nothing in this Agreement shall prevent either party from making a determination that such party has an obligation under the USA PATRIOT Act of 2001 to file a SAR relating to any Suspicious Activity, and from making such filing independent of the other party hereto.
(iv) Amendment to Procedures It is contemplated that the AML Procedures will be amended from time to time by the parties as directed by the Fund as additional regulations are adopted and/or regulatory guidance is provided relating to the Fund’s AML responsibilities.
(v) Reporting Transfer Agent agrees to provide to the Fund: (i) prompt notification of any transaction or combination of transactions that Transfer Agent believes, based on the AML Procedures, evidence potential money laundering activity in connection with the Fund or any Limited Partner; (ii) prompt notification of any true and complete match of a Limited Partner(s) to the names included on the Office of Foreign Asset Controls (OFAC) list or any Section 314(a) search list; (iii) any reports received by Transfer Agent from any government agency or applicable industry self-regulatory
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organization pertaining to Transfer Agent’s AML Monitoring Activities; (iv) any action taken in response to AML violations as described above; and, (v) quarterly reports of its monitoring and verification activities on behalf of the Fund. Transfer Agent shall provide such other reports on the verification activities conducted at the direction of the Fund as may be agreed to from time to time by Transfer Agent and the Fund.
(vi) Inspection The Fund hereby directs, and Transfer Agent agrees to: (1) permit federal regulators access to such information and records maintained by Transfer Agent and relating to Transfer Agent’s implementation of the AML Procedures on behalf of the Fund, as they may request; and, (2) permit such federal regulators to inspect Transfer Agent’s implementation of the AML Procedures on behalf of the Fund.
(vii) Disclosure Obligations Regarding SARs Neither Transfer Agent nor the Fund shall disclose any SAR filed or the information included in a SAR to any third party other than affiliates of Transfer Agent or the Fund on a need to know basis and in accordance with applicable law, rule, regulation and interpretation, that would disclose that a SAR has been filed.
(h) NSCC AIP Services
(i) Transfer Agent agrees to permit transmission of Fund data through the National Securities Corporations’ (“NSCC”) Alternative Investments Product service (the “Service”) through Transfer Agent’s NSCC membership, and such other programs and services as may be offered by NSCC as the parties may mutually agree, subject to the limitations of the Service.
(ii) Transfer Agent shall amend its Alternative Investment Product Member’s Agreement with NSCC pursuant to which an additional clearing number will be issued in conjunction with Transfer Agent’s NSCC activities on behalf of the Fund. The Fund shall arrange for its custodian to perform all functions required of settling banks under applicable rules of the NSCC.
(iii) Upon the request of the Fund and in reliance on the terms hereof, and in order to expedite the trading of the Fund through NSCC and the Service and any other relevant programs and services offered by NSCC as agreed to by the parties, Transfer Agent has agreed to guarantee the payment to NSCC of any and all fees and charges imposed by NSCC from time to time relating to the Fund’s transactions with NSCC, and has assumed responsibility with respect to NSCC for all transactions in and all obligations and liabilities relating to each Fund’s clearing number and participation in the Service.
(iv) It is understood that Transfer Agent may, in its sole discretion, and at any time, terminate any or all of its participation in NSCC on behalf of the Fund. In the event Transfer Agent elects to cease these services, it will provide prompt notice to the Fund.
(i) Site Visits and Inspections; Regulatory Examinations. During the term of this Agreement and upon the General Partner’s reasonable request, authorized representatives of the General Partner may conduct site visits of the Transfer Agent’s facilities during the Transfer Agent’s normal business hours and inspect the Transfer Agent’s records and procedures solely as they pertain to the Transfer Agent’s Services for the Funds under or pursuant to this Agreement.
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3. Representations and Deliveries
(a) The Fund shall deliver or cause the following documents to be delivered to Transfer Agent:
(1) A copy of the Offering Document;
(2) A certificate signed by the Chief Financial Officer and Secretary of the General Partner specifying the number of authorized Units and the number of such authorized Units issued and currently outstanding, if any, the validity of the authorized and outstanding Units, whether such Units are fully paid and non-assessable, and the status of the Units under the 1933 Act and any other applicable federal law or regulation;
(3) A certified copy of the resolutions of the General Partner authorizing the appointment of Transfer Agent and the execution of this Agreement on behalf of the Fund; and
(4) A certificate containing the names of the initial Authorized Persons in a form acceptable to Transfer Agent. Any officer of the General Partner shall be considered an Authorized Person (unless such authority is limited in a writing from the Fund and received by Transfer Agent) and shall have the authority to appoint additional Authorized Persons, to limit or revoke the authority of any previously designated Authorized Person, and to certify to Transfer Agent the names of the Authorized Persons from time to time. The certificate required by this paragraph shall be signed by an officer of the General Partner and designate the names of the General Partner’s initial Authorized Persons.
(5) A certificate as of certifying that all Limited Partner accounts are in balance and all accounts reconciled and current as of the date of this Agreement, and: (1) there are no outstanding issues relating to transfer agent activities and Limited Partner and Fund recordkeeping, including those related to Limited Partner accounts and transaction activity; and, (2) there are no existing or potential claims, litigation or demands by Limited Partners or others relating to the Fund, the General Partner or the General Partner’s officers except as disclosed in writing and dated as of the date of this Agreement.
(6) All Limited Partner account records in a format acceptable to Transfer Agent, in Milwaukee, Wisconsin and at the Fund’s expense.
(7) Prior written notice of any increase or decrease in the total number of Units authorized to be issued, or the issuance of any additional Units of the Fund, and to deliver to Transfer Agent such documents, certificates, reports and legal opinions as it may reasonably request.
(8) All other documents, records and information that Transfer Agent may reasonably request in order for Transfer Agent to perform the Services hereunder.
(b) Each Fund represents and warrants to Transfer Agent that:
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(1) Except as otherwise noted on Schedule A, it is limited partnership duly organized and existing under the laws of the State of New York; it is empowered under applicable laws and by its Organizational Document to enter into and perform this Agreement; and all requisite corporate proceedings have been taken to authorize it to enter into and perform this Agreement.
(2) Any officer of the General Partner has the authority (unless such authority is limited in a writing from the Fund and received by Transfer Agent) to appoint additional Authorized Persons, to limit or revoke the authority of any previously designated Authorized Person, and to certify to Transfer Agent the names of such Authorized Persons.
(3) It is not registered or required to be registered as an investment company under the 1940 Act and its Interests are exempt from the registration requirements of the 1933 Act pursuant to Section 4(a)(2) and Rule 506 of Regulation D promulgated thereunder.
(4) All outstanding Units are validly issued, fully paid and non-assessable and when Units are hereafter issued in accordance with the terms of the Organizational Document and the Fund’s Offering Document, such Units shall be validly issued, fully paid and non-assessable.
(5) It is conducting its business in compliance in all material respects with all applicable laws and regulations, both state and federal, and has obtained all material regulatory approvals necessary to carry on its business as now conducted; there is no statute, rule, regulation, order or judgment binding on it and no provision of its Organizational Document, or any material contract binding it or affecting its property which would prohibit its execution or performance of this Agreement.
(6) All Limited Partner tax reporting has been completed timely and accurately, including the distribution of any applicable tax forms for the most recently completed tax year.
(c) During the term of this Agreement, the Fund shall have the ongoing obligation to provide Transfer Agent with a copy of the Fund’s currently effective Offering Document as soon as it becomes effective. For purposes of this Agreement, Transfer Agent shall not be deemed to have notice of any information contained in any such Offering Document until a reasonable time after it is actually received by Transfer Agent.
(d) The General Partner has and retains primary responsibility for all compliance matters relating to the Fund including, but not limited to, compliance with any applicable requirements under the 1933 Act, 1940 Act, the Internal Revenue Code of 1986, as amended, the USA PATRIOT Act of 2001, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the policies and limitations of the Fund as set forth in the Fund’s Offering Documents. Transfer Agent’s Services hereunder shall not relieve the General Partner of its primary day-to-day responsibility for assuring such compliance. Notwithstanding the foregoing, the Transfer Agent will be responsible for its own compliance with all relevant statutes insofar as such statutes are applicable to the Services it has agreed to provide hereunder, and will promptly notify the Fund if it becomes aware of any material non-compliance which relates to the Fund. The Transfer Agent shall provide the Fund with quarterly and annual certifications (on a calendar basis) with respect to the design and operational effectiveness of its compliance and procedures.
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(e) The Fund agrees that it shall advise Transfer Agent in writing at least thirty (30) days prior to affecting any change in the Fund’s Offering Document which would materially increase or alter the duties and obligations of Transfer Agent hereunder, and shall proceed with such change only if it shall have received the written consent of Transfer Agent thereto.
(f) Fund Instructions
(i) The General Partner shall cause the General Partner’s officers, and the Fund’s legal counsel, independent accountants, administrator, fund accountant, and other service providers and agents, past or present, to cooperate with Transfer Agent and to provide Transfer Agent with such information, documents and communications as necessary and/or appropriate or as requested by Transfer Agent, in order to enable Transfer Agent to perform the Services. In connection with the performance of the Services, Transfer Agent shall (without investigation or verification) be entitled, and is hereby instructed to, rely upon any and all Instructions, communications, information or documents provided to Transfer Agent. Transfer Agent shall be entitled to rely on any document that it reasonably believes to be genuine and to have been signed or presented by the proper party. Fees charged by such persons shall be an expense of the Fund. Transfer Agent shall not be held to have notice of any change of authority of any agent or representative of the Fund, General Partner, Authorized Person or service provider until receipt of written notice thereof from the Fund.
(ii) The General Partner shall provide Transfer Agent with an updated certificate evidencing the appointment, removal or change of authority of any Authorized Person, it being understood Transfer Agent shall not be held to have notice of any change in the authority of any Authorized Person until receipt of written notice thereof from the General Partner.
(iii) Transfer Agent, its officers, agents or employees shall accept Instructions given to them by any person representing or acting on behalf of the Fund only if such representative is an Authorized Person. The General Partner agrees that when oral Instructions are given, it shall, upon the request of Transfer Agent, confirm such Instructions in writing.
(iv) At any time, Transfer Agent may request Instructions from the General Partner with respect to any matter arising in connection with this Agreement. If such Instructions are not received within a reasonable time, then Transfer Agent may seek advice from legal counsel for the Fund at the expense of the Fund, or its own legal counsel at its own expense, and it shall not be liable for any action taken or not taken by it in good faith in accordance with such Instructions or in accordance with advice of counsel.
(g) Transfer Agent represents and warrants to the Fund and the General Partner that:
(i) It is a corporation duly organized and existing under the laws of the State of Wisconsin; it is empowered under applicable laws and by its Articles of Incorporation and By-laws to enter into and perform the Services contemplated in this Agreement; and all requisite proceedings have been taken to authorize it to enter into and perform this Agreement.
(ii) It is duly qualified to carry on its business in the State of Wisconsin.
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(iii) It is conducting its business in compliance in all material respects with all applicable laws and regulations, both state and federal, and has obtained all regulatory approvals necessary to carry on its business as now conducted; there is no statute, rule regulation, order or judgment binding on it and no provision of its operating documents or any contract binding it or affecting its property which would prohibit its execution or performance of this Agreement.
(iv) Transfer Agent has and will continue to have access to the facilities, equipment and personnel necessary and appropriate to carry out its obligations under this Agreement.
(v) Transfer Agent will, during the term of the Agreement, employ a virus detection software program, that employs regular updates, to test for the presence of computer code designed to disrupt, disable, harm or otherwise impede the operation of the hardware and software used by Transfer Agent to perform the Services.
(vi) It is duly registered as a transfer agent under Section 17A of the 1934 Act, and will remain so registered for the duration of this Agreement and will as soon as possible notify the Fund in the event that it is no longer a registered transfer agent. Notwithstanding any other provision of this Agreement, the loss or expiration of Transfer Agent’s registration as a transfer agent will constitute a material breach of the Agreement and any cure period shall be waived.
(vii) Transfer Agent has policies and procedures reasonably designed to comply with applicable anti-money laundering and anti-terrorist financing laws, rules and regulations (including the USA Patriot Act of 2001) of the United States, as amended from time to time. Transfer Agent undertakes that it shall: (a) conduct its operations in accordance with applicable laws, regulations and regulatory interpretations, including all relevant sections of the USA Patriot Act; (b) provide access to its books, records and operations relating to its anti-money laundering compliance by appropriate regulatory authorities, and if appropriate under the circumstances (subject to applicable law), by the General Partner and the Fund upon request; (c) look through any nominees or intermediaries to the ultimate beneficial owner of Units, as required by law; (d) upon the request of a regulatory authority, provide copies of records of any investor due diligence performed; and (e) certify in writing at least annually, upon written request, that it has implemented an anti-money laundering program that is reasonably designed to comply with applicable rules and regulations of a federal functional regulator, as that term is defined for purposes of 31 CFR §103.122, and that it is in material compliance with all applicable anti-money-laundering laws, rules, regulations and regulatory interpretations. A breach of the foregoing provision shall be considered cause for termination of this Agreement and the Transfer Agent waives the cure period that would otherwise apply to such breach.
(viii) Transfer Agent has in force policies, procedures, and internal controls reasonably designed to ensure compliance with economic sanctions programs administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), including prohibitions set forth in OFAC’s Specially Designated Nationals and Blocked Persons List (the “SDN List”), as well as sanctions programs administered or enforced by the European Union, United Nations and Her Majesty’s Treasury (United Kingdom), as applicable. Without prejudice to any of the foregoing representations and covenants, Transfer Agent will not process any subscription, transfer or other transaction that it has reason to know, based on the application of its economic sanctions compliance program, is for or on behalf of, any individual, entity, organization or government that (a) is or becomes designated on the
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OFAC SDN List or (b) is incorporated, resident or located in any country, territory or region subject to comprehensive, geographic OFAC sanctions (currently, the Crimea region, Cuba, Iran, North Korea, Sudan and Syria). Transfer Agent will promptly notify the Fund of any transaction with or involving the Fund attempted by any such person, and will cooperate with the Fund in taking appropriate responsive measures such as rejecting or blocking the transaction and making reports to OFAC as required by law. A breach of the foregoing provision shall be considered cause for termination of this Agreement and the Transfer Agent waives the cure period that would otherwise apply to such breach.
4. Fees and Expenses
(a) As compensation for the performance of the Services with respect to those investors who became Limited Partners of the Fund on and after the Effective Date, the Fund agrees to pay Transfer Agent the fees set forth on Schedule C hereto. Fees shall be adjusted in accordance with Schedule C or as otherwise agreed to by the parties from time to time. Fees shall be earned and paid monthly in an amount equal to at least 1/12th of the applicable annual fee. The parties may amend this Agreement to include fees for any additional services requested by the Fund or enhancements to current Services. The Fund agrees to pay Transfer Agent’s then current rate for Services added to, or for any enhancements to existing Services set forth on Schedule B after the execution of this Agreement. In addition, to the extent that Transfer Agent corrects, verifies or addresses any prior actions or inactions by the Fund or by any prior agent or service provider, Transfer Agent shall be entitled to additional fees as provided in Schedule C. In the event of any disagreement between this Agreement and Schedule C, the terms of Schedule C shall control.
(b) Upon any termination of this Agreement before the end of any month, the fee for such part of a month shall be pro-rated according to the proportion which such period bears to the full monthly period and shall be payable upon the date of termination of this Agreement. Should this Agreement be terminated or the Fund be liquidated, merged with or acquired by another fund or investment company, any accrued fees shall be immediately payable.
(c) Transfer Agent will bear all expenses incurred by it in connection with its performance of Services, except as otherwise provided herein. Transfer Agent shall not be required to pay or finance any costs and expenses incurred in the operation of the Fund, including, but not limited to: taxes; interest; brokerage fees and commissions; salaries, fees and expenses of the General Partner; Commission fees and state Blue Sky fees; advisory fees; charges of custodians, administrators, fund accountants, dividend disbursing and accounting services agents and other service providers; security pricing services; insurance premiums; outside auditing and legal expenses; costs of organization and maintenance of corporate existence; taxes and fees payable to federal, state and other governmental agencies; preparation, typesetting, printing, proofing and mailing of Offering Documents, statements of additional information, supplements, notices, forms and applications and proxy materials for regulatory purposes and for distribution to current Limited Partners; preparation, typesetting, printing, proofing and mailing and other costs of Limited Partner reports; expenses in connection with the electronic transmission of documents and information including electronic filings with the Commission and the states; research and statistical data services; expenses incidental to holding meetings of the Fund’s Limited Partners and the General Partner; fees and expenses associated with internet, e-mail and other related activities; and extraordinary expenses. Expenses incurred for distribution of Units, including the typesetting, printing, proofing and mailing of Offering Documents for persons who are not Limited
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Partners, will be borne by the General Partner, except for such expenses permitted to be paid under a distribution plan adopted in accordance with applicable laws. Transfer Agent shall not be required to pay any Blue Sky fees or take any related Blue Sky actions unless and until it has received the amount of such fees from the Fund.
(d) The Fund also agrees to promptly reimburse Transfer Agent for all out-of-pocket expenses or disbursements incurred by Transfer Agent in connection with the performance of Services under this Agreement. Out-of-pocket expenses shall include, but not be limited to, those items specified on Schedule C hereto. If requested by Transfer Agent, out-of-pocket expenses are payable in advance. Payment of postage expenses, if prepayment is requested, is due at least seven (7) days prior to the anticipated mail date. In the event Transfer Agent requests advance payment, Transfer Agent shall not be obligated to incur such expenses or perform the related Service(s) until payment is received.
(e) The Fund agrees to pay all amounts due hereunder within thirty (30) days of the date reflected on the statement for such Services (the “Due Date”). Except as provided in Schedule C, Transfer Agent shall ▇▇▇▇ Service fees monthly, and out-of-pocket expenses as incurred (unless prepayment is requested by Transfer Agent).
(f) The Fund is aware that its failure to remit to Transfer Agent all amounts due on or before the Due Date will cause Transfer Agent to incur costs not contemplated by this Agreement, including, but not limited to carrying, processing and accounting charges. Accordingly, in the event that Transfer Agent does not receive any amounts due hereunder by the Due Date, the Administrator may charge, and the Fund agrees to pay a late charge on the overdue amount equal to one and one-half percent (1.5%) per month or the maximum amount permitted by law, whichever is less. In addition, the Fund shall pay Transfer Agent’s reasonable attorney’s fees and court costs if any amounts due Transfer Agent in the event that an attorney is engaged to assist in the collection of amounts due. The parties hereby agree that such late charge represents a fair and reasonable computation of the costs incurred by reason of the Fund’s late payment. Acceptance of such late charge shall in no event constitute a waiver by Transfer Agent of the Fund’s default or prevent Transfer Agent from exercising any other rights and remedies available to it.
(g) In the event that any charges are disputed, the Fund shall, on or before the Due Date, pay all undisputed amounts due hereunder and notify Transfer Agent in writing of any disputed charges for out-of-pocket expenses which it is disputing in good faith. Payment for such disputed charges shall be due on or before the close of the fifth (5th) business day after the day on which Transfer Agent provides documentation which an objective observer would agree reasonably supports the disputed charges (the “Revised Due Date”). Late charges shall not begin to accrue as to charges disputed in good faith until the first day after the Revised Due Date.
(h) The Fund acknowledges that the fees charged by Transfer Agent under this Agreement reflect the allocation of risk between the parties, including the exclusion of remedies and limitations of liability in Sections 2, 3 and 6. Modifying the allocation of risk from what is stated herein would affect the fees that Transfer Agent charges. Accordingly, in consideration of those fees, the Fund agrees to the stated allocations of risk.
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5. Confidential Information
Transfer Agent agrees on behalf of itself and its employees to treat confidentially and as proprietary information of the Fund all records and other information relative to the Fund’s Limited Partners, not to use such information other than in the performance of its responsibilities and duties hereunder, and not to disclose such information except: (i) when requested to divulge such information by duly-constituted authorities or court process; (ii) when requested by a Limited Partner or Limited Partner’s agent with respect to information concerning an account as to which such Limited Partner has either a legal or beneficial interest; (iii) when requested by the Fund, the Limited Partner, the Limited Partner’s agent or the dealer of record with respect to such account; (iv) to seek to prevent fraud and/or money laundering by providing certain Limited Partner information to other financial institutions; (v) to an affiliate, as defined by Section 248.3(a) of Regulation S-P; or, (vi) pursuant to any other exception permitted by Sections 248.14 and 248.15 of Regulation S-P in the ordinary course of business to carry out the activities covered by the exception under which Transfer Agent received the information. In the event that any requests or demands are made for the inspection of the records of the Fund, Transfer Agent will promptly notify the Fund (except when prohibited by law) and to secure instructions from an Authorized Person of the Fund as to such inspection. Records and information which have become known to the public through no wrongful act of Transfer Agent or any of its employees, agents or representatives, and information which was already in the possession of Transfer Agent prior to receipt thereof, shall not be subject to this section. Any party appointed pursuant to Section 2(b) above shall be required to observe the confidentiality obligations contained herein. Transfer Agent will implement and maintain such appropriate security measures as are necessary for the protection of confidential Limited Partner information. The obligations of the parties under Section 5 shall indefinitely survive the termination of this Agreement.
6. Limitation of Liability In addition to the limitations of liability contained in Sections 2 and 3 of this Agreement:
(a) Transfer Agent shall not be liable for any error of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Agreement relates, except for a loss resulting from Transfer Agent’s willful misfeasance, bad faith or negligence in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement. Furthermore, Transfer Agent shall not be liable for: (1) any action taken or omitted to be taken in accordance with or in reliance upon Instructions, communications, data, documents or information (without investigation or verification) received by Transfer Agent from an officer or representative of the General Partner or from any Authorized Person; or, (2) any action taken, or omission by, the Fund, the General Partner, any Authorized Person or any past or current service provider (not including Transfer Agent).
(b) Notwithstanding anything herein to the contrary, in the event either party is unable to perform its obligations required of it hereunder because such performance is prevented by force majeure, “acts of God” or other similar events beyond its reasonable control, such party shall not be liable for any default, damage, loss of data or documents, errors, delay or any other loss whatsoever caused thereby, provided that the foregoing does not apply to hardware or software failures unless such failures are caused by force majeure, “acts of God” or other similar events beyond its reasonable control. Transfer Agent will, however, take all reasonable steps to minimize service interruptions for any period that such interruption continues beyond its reasonable control.
13
(c) In no event and under no circumstances shall the Indemnified Parties (as defined below) be liable to anyone, including, without limitation, the other party, under any theory of tort, contract, strict liability or other legal or equitable theory for lost profits, exemplary, punitive, special, indirect or consequential damages for any act or failure to act under any provision of this Agreement regardless of whether such damages were foreseeable and even if advised of the possibility thereof.
(d) Notwithstanding any other provision of this Agreement, Transfer Agent shall have no duty or obligation under this Agreement to inquire into, and shall not be liable for:
(i) the legality of the issue or sale of any Units, the sufficiency of the amount to be received therefor, or the authority of the Fund, as the case may be, to request such sale or issuance;
(ii) the legality of a subscription or redemption of any Units, the propriety of the amount to be paid therefor, or the authority of the Fund, as the case may be, to request such subscription or tender; or
(iii) the offer or sale of Units in violation of any requirement under the securities laws or regulations of any jurisdiction that such Units be qualified for sale in such state or in violation of any stop order or determination or ruling by any state with respect to the offer or sale of such Units in such state.
(e) Transfer Agent may, in effecting purchases and redemptions of Units, rely upon those provisions of the Uniform Act for the Simplification of Fiduciary Security Transfers (or such other statutes which protect it and the Fund in not requiring complete fiduciary documentation) and shall not be responsible for any act done or omitted by it in good faith in reliance upon such laws. Notwithstanding the foregoing or any other provision contained in this Agreement to the contrary, Transfer Agent shall be fully protected by the Fund in not requiring any instruments, documents, assurances, endorsements or guarantees, including, without limitation, any Medallion signature guarantees, in connection with a purchase or redemption of Units whenever Transfer Agent reasonably believes that requiring the same would be inconsistent with the terms of the Fund’s Offering Documents.
(f) The obligations of the parties under Section 6 shall indefinitely survive the termination of this Agreement.
7. Indemnification
(a) The Fund agrees to indemnify and hold harmless Transfer Agent, its employees, agents, officers, directors, Limited Partners, affiliates and nominees (collectively, “Indemnified Parties”) from and against any and all losses, damages, costs, charges, documented counsel fees, payments, expenses and liability (“Losses”) which may be asserted against or incurred by any Indemnified Party or for which any Indemnified Party may be held liable (a “Claim”), arising out of any of the following:
14
(i) any action or omission of Transfer Agent except to the extent a Claim resulted from Transfer Agent’s willful misfeasance, bad faith or negligence in the performance of its duties or from reckless disregard by it of its obligations and duties hereunder or a breach of any warranty of the Transfer Agent set forth in Section 3(h) hereof;
(ii) Transfer Agent’s reliance on, implementation of, or use of Instructions, communications, data, documents or information (reasonably believed to be genuine and authorized without independent investigation or verification) received by Transfer Agent from an officer or representative of the General Partner, any Authorized Person or any past or current service provider (not including Transfer Agent);
(iii) any action taken, or omission by, the Fund, the General Partner, any Authorized Person or any past or current service provider (not including Transfer Agent);
(iv) the Fund’s refusal or failure to comply with the terms of this Agreement, or any Claim that arises out of the Fund’s gross negligence or misconduct or breach of any representation or warranty of the Fund made herein;
(v) the legality of the issue or sale of any Units, the sufficiency of the amount received therefore, or the authority of the Fund, as the case may be, to have requested such sale or issuance;
(vi) the acceptance, processing and/or negotiation of a fraudulent payment for the purchase of Units unless the result of Transfer Agent’s or its affiliates’ willful misfeasance, bad faith or negligence in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement. In the absence of a finding to the contrary, the acceptance, processing and/or negotiation of a fraudulent payment for the purchase or redemption of Units shall be presumed not to have been the result of Transfer Agent’s or its affiliates’ willful misfeasance, bad faith or gross negligence; and
(vii) the offer or sale of Units in violation of federal or state securities laws or regulations requiring that such Units be registered/qualified for sale, or in violation of any stop order or other determination or ruling by any federal or any state agency with respect to the offer or sale of such Units.
(b) Promptly after receipt by Transfer Agent of notice of the commencement of an investigation, action, claim or proceeding, Transfer Agent shall, if a claim for indemnification in respect thereof is made under this section, notify the Fund in writing of the commencement thereof, although the failure to do so shall not prevent recovery by Transfer Agent or any Indemnified Party, and shall keep the Fund advised with respect to all developments concerning such claim. The Fund shall be entitled to participate at its own expense in the defense or, if it so elects, to assume the defense of any suit brought to enforce any such Loss, but if the Fund elects to assume the defense, such defense shall be conducted by counsel chosen by the Fund and approved by Transfer Agent, which approval shall not be unreasonably withheld. In the event the Fund elects to assume the defense of any such suit and retain such counsel and notifies Transfer Agent of such election, the indemnified defendant or defendants in such suit shall bear the fees and expenses of any additional counsel retained by them subsequent to the
15
receipt of the Fund’s election. If the Fund does not elect to assume the defense of any such suit, or in case Transfer Agent does not, in the exercise of reasonable judgment, approve of counsel chosen by the Fund, or in case there is a conflict of interest between the Fund and Transfer Agent or any Indemnified Party, the Fund will reimburse the Indemnified Party or Parties named as defendant or defendants in such suit, for the fees and expenses of any counsel retained by Transfer Agent and them. The Fund’s indemnification agreement contained in this Section 7 and the Fund’s representations and warranties in this Agreement shall remain operative and in full force and effect regardless of any investigation made by or on behalf of Administrator and each Indemnified Party, and shall survive the delivery of any Units and the termination of this Agreement. This agreement of indemnity will inure exclusively to Transfer Agent’s benefit, to the benefit of each Indemnified Party and their estates and successors. The Fund agrees to promptly notify Transfer Agent of the commencement of any litigation or proceedings against the Fund, the General Partner or any of the General Partner’s officers or directors in connection with the issue and sale of any of the Units.
(c) Transfer Agent shall indemnify and hold the Fund harmless from and against any Losses asserted against or incurred by the Fund in connection with Transfer Agent’s material breach of this Agreement or any claims resulting from Transfer Agent’s willful misfeasance, bad faith or negligence in the performance of its duties or from reckless disregard by it of it of its obligations and duties under this Agreement.
(d) The obligations of the parties under Section 7 shall indefinitely survive the termination of this Agreement.
8. Covenants of the Transfer Agent
Records. Transfer Agent shall prepare and keep records relating to the services to be performed hereunder, in the form, manner and for such periods, as it may deem advisable and as may be required by (i) the laws and regulations applicable to its business as a transfer agent, including, but not limited to, those set forth in 17 CFR 240.17Ad-6 and 17 CFR 240.17Ad-7; (ii) those set forth in IRS regulations and FATCA, as such regulations and FATCA may be amended from time to time with respect to such services provided by Transfer Agent as information reporting and withholding agent for the Funds; and (iii) its record retention policies. For the purposes of this Agreement, “FATCA” shall mean Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation, rules, or official practices adopted pursuant to any published intergovernmental agreement entered into in connection with the implementation of such sections of the Code. Transfer Agent shall also maintain those records required to be maintained as set forth on Schedule D. Records maintained by Transfer Agent of behalf of the Funds are the property of the Funds and shall be made available for reasonable examinations by the Funds’ governmental regulators upon reasonable request and shall be preserved and maintained by Transfer Agent for such period as required by applicable law or until such earlier time as Transfer Agent has delivered such records into the Fund’s possession or destroyed them at the Fund’s request.
Disaster Recovery and Business Continuity. Transfer Agent will maintain a comprehensive disaster recovery and business continuity plan and will provide an executive summary of such plan upon reasonable request of the Fund. Transfer Agent will test the adequacy of its disaster recovery and business continuity plan at least annually. Upon reasonable request by the Fund, Transfer Agent will
16
provide the Fund with a letter assessing the most recent disaster recovery and business continuity test results. In the event of a business disruption that materially impacts Transfer Agent’s provision of services under this Agreement, Transfer Agent will promptly notify the Fund of the disruption and the steps being implemented under the disaster recovery and business continuity plan.
9. Term
(a) This Agreement shall become effective with respect to the Fund as of the Effective Date. This Agreement shall become effective with respect to each Fund not party to this Agreement on that date, on the date an amendment to Schedule A to this Agreement relating to that Fund is executed. Unless sooner terminated as provided for herein, this Agreement shall continue in effect with respect to the Fund for a two-year period beginning on the Effective Date (the “Initial Term”). Thereafter, if not terminated as provided herein, the Agreement shall continue automatically in effect for successive annual periods (each a “Renewal Term”).
(b) In the event this Agreement is terminated by a Fund prior to the expiration of the Initial Term or any subsequent Renewal Term, such Fund shall give Transfer Agent ninety (90) days written notice and shall be obligated to pay Transfer Agent the remaining fees payable to Transfer Agent under this Agreement through the end of the Initial Term or Renewal Term, as applicable; provided, however, that if this Agreement is terminated by the Fund for (1) a material breach of this Agreement which Transfer Agent has not cured within sixty (60) days of notice of such material breach (2) Transfer Agent has committed repeated material breaches of this Agreement (whether or not cured) over a twelve (12) month period, that taken together materially and adversely affect the Funds or (3) with respect to a Fund if such termination is due to (a) the merger, sales or liquidation of such Fund or the consolidation of such Fund or another entity, so long as (i) this Agreement continues with respect to the remainder of the Funds, and (ii) either Transfer Agent is retained to continue to provide Services to such merged Fund or its successor on substantially the same terms as this Agreement, or (b) such Fund is merged or consolidated with another Fund serviced under this Agreement (which termination shall take effect as of the date specified by the Fund in the notice of such termination), no fees shall be payable to the Transfer Agent for any period following the date of such termination. Notwithstanding the foregoing, either party may terminate this Agreement at the end of the Initial Term or at the end of any successive Renewal Term (the “Termination Date”), without cause, with respect to one or more Funds, by giving the other party a written notice not less than ninety (90) days’ prior to the end of the respective term. Notwithstanding anything herein to the contrary, upon the termination of the Agreement as provided herein or the liquidation, merger or acquisition of the Fund, Transfer Agent shall deliver the records of the Fund to the Fund or its successor service provider at the expense of the Fund in a form that is consistent with Transfer Agent’s applicable license agreements, and thereafter the Fund or its designee shall be solely responsible for preserving the records for the periods required by all applicable laws, rules and regulations. The Fund shall be responsible for all expenses associated with the movement (or duplication) of records and materials and conversion thereof to a successor service provider, including all reasonable trailing expenses incurred by Transfer Agent. In addition, in the event of termination of this Agreement, or the proposed liquidation, merger or acquisition of the Fund, and Transfer Agent’s agreement to provide additional Services in connection therewith, Transfer Agent shall provide such Services and be entitled to such compensation as the parties may mutually agree. Transfer Agent shall not reduce the level of service provided to the Fund prior to termination following notice of termination by the Fund.
17
(c) In the event such notice is given by the Fund pursuant to subparagraph (b), it shall be accompanied by a copy of a resolution of the General Partner certified by the Secretary or any Assistant Secretary, electing to terminate this Agreement and designating the successor transfer agent or transfer agents. In the event such notice is given by Transfer Agent, the Fund shall on or before the termination date, deliver to Transfer Agent a copy of a resolution of its General Partner certified by the Secretary or any Assistant Secretary designating a successor transfer agent or transfer agents. In the absence of such designation by the Fund, the Fund shall be deemed to be its own transfer agent as of the termination date and Transfer Agent shall thereby be relieved of all duties and responsibilities pursuant to this Agreement.
10. Miscellaneous
(a) Any notice required or permitted to be given by either party to the other under this Agreement shall be in writing and shall be deemed to have been given when received by the other party. Such notices shall be sent to the addresses listed below, or to such other location as either party may from time to time designate in writing:
| If to Transfer Agent: | UMB Fund Services, Inc. | |
| ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: General Counsel | ||
| If to the Fund: | Ceres Managed Futures LLC | |
| ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇, President | ||
(b) This Agreement may be amended or modified by a written agreement executed by both parties with the formality of this Agreement.
(c) In the event an entity affiliated with the Funds in addition to those listed on Schedule A, desires to have Transfer Agent render services as transfer agent under the terms hereof and Transfer Agent agrees to provide such services, upon completion of an amended Schedule A signed by all parties to the Agreement, such entity shall become a Fund hereunder.
(d) This Agreement shall be governed by New York law, excluding the laws on conflicts of laws. Any provision of this Agreement which is determined by competent authority to be prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. In such case, the parties shall in good faith modify or substitute such provision consistent with the original intent of the parties.
18
(e) This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original agreement but such counterparts shall together constitute but one and the same instrument. The facsimile signature of any party to this Agreement shall constitute the valid and binding execution hereof by such party.
(f) The services of Transfer Agent hereunder are not deemed exclusive. Transfer Agent may render transfer agency and dividend disbursement services and any other services to others, including other investment companies.
(g) The captions in the Agreement are included for convenience of reference only, and in no way define or limit any of the provisions hereof or otherwise affect their construction or effect.
(h) The obligations hereunder are not binding upon any of the officers of the General Partner or Limited Partners individually but are binding only upon the Fund to which such obligations pertain and the assets and property of such Fund. All obligations under this Agreement shall apply only on a Fund-by-Fund basis, and the assets of one Fund shall not be liable for the obligations of another Fund.
(i) This Agreement and the Schedules incorporated hereto constitute the full and complete understanding and agreement of Transfer Agent and the Fund and supersedes all prior negotiations, understandings and agreements with respect to transfer agency and dividend disbursement services.
(j) Except as specifically provided herein, this Agreement does not in any way affect any other agreements entered into among the parties hereto and any actions taken or omitted by any party hereunder shall not affect any rights or obligations of any other party hereunder.
(k) Transfer Agent shall retain all right, title and interest in any and all computer programs, screen formats, report formats, procedures, data bases, interactive design techniques, derivative works, inventions, discoveries, patentable or copyrightable matters, concepts, expertise, trade secrets, trademarks and other related legal rights provided, developed or utilized by Transfer Agent in connection with the Services provided by Transfer Agent to the Fund hereunder.
(l) This Agreement shall extend to and shall be binding upon the parties hereto, and their respective successors and assigns. This Agreement shall not be assignable by either party without the written consent of the other party, provided, however, that Transfer Agent may, in its sole discretion and upon advance written notice to the Fund, assign all its right, title and interest in this Agreement to an affiliate, parent or subsidiary, or to the purchaser of substantially all of its business.
(m) The person signing below represents and warrants that he/she is duly authorized to execute this Agreement on behalf of the Fund.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by a duly authorized officer as of the day, month and year first above written.
| Each of the Funds on Schedule A | ||
| By: Ceres Managed Futures LLC, as General Partner | ||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇ | |
| Title: | Chief Financial Officer | |
| Date: | August 8, 2017 | |
| CERES MANAGED FUTURES LLC | ||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇ | |
| Title: | Chief Financial Officer | |
| Date: | ▇▇▇▇▇▇ ▇, ▇▇▇▇ | |
| ▇▇▇ FUND SERVICES, INC. | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| Title: | President | |
| Date: | August 9, 2017 | |
20
Amended and Restated
Schedule A
Dated as of September 5, 2017
to the
Ceres Managed Futures LLC
UMB Fund Services, Inc.
Funds
Orion Futures Fund L.P.
Ceres Tactical Macro L.P. Class A
Managed Futures Premier ▇▇▇▇▇▇ ▇.▇. Class A
Tactical Diversified Futures Fund L.P.
21
Schedule B
to the
Ceres Managed Futures LLC
UMB Fund Services, Inc.
SERVICES
In addition to, or in connection with, the Services set forth in Section 2 of the Agreement and subject to the direction of, and utilizing information provided by, the Fund, the General Partner, and the Fund’s agents, Transfer Agent will provide the following Services:
Transfer Agency and Investor Reporting:
| • | distribute Offering Documents to or for prospective Limited Partners as directed by the Fund, pursuant to arrangements with fund “platforms” or other distribution arrangements of the Fund; |
| • | Correspond with Limited Partners to complete or correct information; provided, however, that the General Partner remains solely responsible for determining Limited Partner eligibility; send approval notices to Limited Partners as instructed by the Fund, if applicable; |
| • | provide AML services as described in Section 2(g) (the customer identification verification component of these Services apply only to Limited Partners who are residents of the United States), pursuant to which the Transfer Agent will: |
| • | Submit all new account registrations and registration changes through the Office of Foreign Assets Control (“OFAC”) database and such other lists or databases as may be required from time to time by applicable regulatory authorities on a daily basis; |
| • | Review special payee checks through OFAC database; |
| • | Identify repurchase transactions’ that occur within thirty (30) days of an account establishment or registration change or banking information change and notify the Fund of such transaction; |
| • | Review wires sent pursuant to banking instructions other than those on file with the Transfer Agent; |
| • | Review accounts with frequent activity within a specified date range followed by a large redemption; |
| • | On a daily basis, review purchase and repurchase activity per tax identification number (“TIN”) within the Funds to determine if activity for that TIN exceeded the $100,000 threshold on any given day; and |
| • | Compare account information to any FinCEN request pursuant to USA PATRIOT Act Sec. 314(a). |
22
| • | coordinate processing of new Limited Partner subscriptions, which shall include (i) coordinating receipt of funds from Limited Partners, (ii) providing the Fund with a daily report detailing the status and amount of incoming wires and Limited Partner certifications, (iii) upon direction from the Fund, coordinating transfer of funds between the escrow agent and the Fund and/or returning funds to potential Limited Partners whose subscriptions have not been accepted and (iv) sending confirmations to new Limited Partners; |
| • | send quarterly statements of positions held to relevant parties as instructed by the Fund; |
| • | provide on-line access to Limited Partner information (provided that the Transfer Agent is not responsible for designing or maintaining any web site for the Fund), |
| • | prepare for the Fund’s General Partner monthly reports showing account balance information of each Limited Partner, |
| • | coordinate any supplemental communications by the Fund to its Limited Partners, as directed; |
| • | coordinate processing of redemptions made by the Fund, which shall include (i) if directed by the General Partner, distributing redemption letters to Limited Partners, (ii) coordinating receipt of redemption requests from Limited Partners, (iii) providing the Fund with a daily report detailing the status and amount of incoming redemption requests, (iv) delivering acceptance letters and promissory notes to investors whose redemption requests have been accepted, as described in the Offering Documents, (v) coordinating the calculation of holdback amounts (if applicable) and (vi) upon direction from the Fund, coordinating release of funds to Limited Partners; |
| • | establish and maintain a demand deposit account for purposes of processing Limited Partner subscriptions and redemption requests; |
| • | updating the books and records of the Fund to maintain a registry of Limited Partners, including: (i) name, address and US tax identification or social security number; (ii) number of Units held; (iii) historical information regarding the account of each Limited Partner, including distributions (if any) paid and the date and price for all transactions on the Limited Partner’s account, as applicable; (iv) any stop or restraining order placed against an Limited Partner’s account; (v) any correspondence relating to the current maintenance of a Limited Partner’s account; (vi) information with respect to withholdings; |
| • | prepare and certify Limited Partner lists in conjunction with proxy solicitations (the Transfer Agent does not provide proxy administration services beyond the provision of Limited Partner lists); |
| • | Set up and maintain Limited Partner accounts and records; |
| • | Store account documents electronically; |
| • | Provide Limited Partner account information; |
| • | Calculate services plan fees as required; |
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| • | If directed by the General Partner, mail Offering Documents, annual and semi-annual reports, and other Limited Partner communications to existing Limited Partners; |
| • | Prepare and file U.S. Treasury Department 1099, 1042, 1042-S and 945 and prepare the information for the Fund’s tax preparers to prepare a Schedule K-1 (if applicable) for Limited Partners; send such forms and schedules to Limited Partners as directed by the Investment Adviser; |
| • | Withhold taxes on U.S. resident and non-resident alien accounts upon receipt of Fund valuation; |
| • | Provide basic report access; |
| • | Conduct periodic postal clean-up; |
| • | Receive from Limited Partners or debit Limited Partner accounts for sales commissions and service fees (i.e., wire redemption charges) and prepare and transmit payments to underwriters, selected dealers and others for commissions and service fees received; |
| • | Track Limited Partner account by financial intermediary source and otherwise as reasonably requested and provide periodic reporting; |
| • | Monitor and make appropriate filings with respect to the escheatment laws of the various states and territories of the Unites States; |
| • | Establish and maintain facilities and procedures for the safekeeping for safekeeping of all records maintained by UMBFS; |
| • | Cooperate with each Fund’s independent public accountants and take reasonable action to make all necessary information available to the accountants for the performance of the accountants’ duties; |
| • | Provide Call Center Services for the Funds. Call center functions include answer telephone inquiries, respond to inquiries from existing Limited Partners, and broker-dealers on behalf of such Limited Partners. |
| • | Assist with the transmission of membership and Fund data through the NSCC’s Service as set forth in Section 2(h). |
24
Schedule C
to the
Ceres Managed Futures LLC
UMB Fund Services, Inc.
FEES
| Annual Complex Level Investor Servicing Fee* |
||||
| ● For each of the first 500 investors |
$ | 130 | ||
| ● For each of the next 500 investors |
$ | 110 | ||
| ● For each of the next 500 investors |
$ | 90 | ||
| ● For each of the next 3,500 investors |
$ | 70 | ||
| ● For each investor over 5,000 investors |
$ | 60 | ||
| Annual Base Fee Per Fund* |
||||
| ● For each of the first 12 funds |
$ | 13,000 | ||
| ● For each fund over 12 funds |
$ | 12,000 | ||
| * | Fees will be determined on the aggregate total number of investor accounts across all Funds set forth on Schedule A created by the Transfer Agent on and after the Effective Date. The total account complex charge will then be allocated to each Fund based on its respective percentage of the number of investors to which the Transfer Agent provides Services plus a base fee on a monthly basis. |
| USA PATRIOT Act & Escheatment Fees |
||||
| ● Per fund (per year) |
$ | 2,000 | ||
| ● Suspicious Activity Report filing (per occurrence) |
$ | 25 | ||
| ● Escheatment filing (per state) |
$ | 50 | ||
| CCO Support Services |
||||
| Annual fee per fund family |
$ | 1,500 | ||
| Advanced Reporting Solutions |
||||
| ● Annual maintenance fee first 4 users* |
included | |||
| ● Annual maintenance fee for the next 25 users (per year) |
$ | 10,000 | ||
| ● Additional interactive user license for each additional user after the 25th paid user (per license, per year) |
$ | 1,000 | ||
| * Includes initial set-up costs plus up to four interactive user licenses per fund family |
||||
| Limited Partner Services |
||||
| ● Telephone calls (per minute) |
$ | 1.00 | ||
| ● Letters/e-mails, research/lost Limited Partner (per occurrence) |
$ | 2.75 | ||
| Document Services |
||||
| ● Standard applications and forms in electronic format |
no charge | |||
| ● Customized forms |
as quoted | |||
25
| ● Pre-printed, machine-ready statement inserts (per item) |
$ | .03 | ||
| ● Standard single-sided statement/confirm/tax form/check (per item including .pdf) |
||||
| ● First page |
$ | .30 | ||
| ● Each additional page |
$ | .15 | ||
| DTCC AIP |
||||
| ● One-time set-up fee |
$ | 3,000 | ||
| ● Per file, per month |
$ | 25 | ||
| Intermediary File Feed – Non-DTCC |
||||
| ● Per feed |
$ | 25 | ||
| FATCA Services |
||||
| Annual FATCA services fee |
$ | 2,500 | ||
| Internet Services |
||||
| Voila – per fund family |
||||
| ● One-time set-up fee |
$ | 7,500 | ||
| ● Monthly maintenance fee |
$ | 1,000 | ||
| Web-based document mailing* |
||||
| ● One-time set-up fee |
$ | 4,000 | ||
| ● Annual maintenance fee |
$ | 1,500 | ||
| ● Per Limited Partner, per mailing |
$ | .15 | ||
| * Statements, offering documents, financial reports, etc. |
||||
| Limited Partner |
||||
Out-of-Pocket Expenses and Other Related Expenses
Out-of-pocket expenses and other related expenses include but are not limited to: annual year-end programming fees; copying charges; express delivery charges; postage; courier service; printing of reports, statements, confirmations; stationary; tax forms; CPU usages; telephone and long distance charges; VPN/VNET fees; retirement plan documents; proxies and proxy services; DTCC/NSCC participating billing; manual cost basis processing; P.O. Box rental; toll free number; customer identity check fees; bank account service fees and any other bank charges and expenses; record retention/storage/retrieval expenses; attorney’s fees incurred in connection with responding to and complying with SEC or other regulatory investigations, inquiries or subpoenas, excluding routine examinations of UMB.
Additional fees at $175 per hour or as quoted by project may apply for special programming to meet your servicing requirements or to create custom reports. Such additional fees will be charged only after receiving written notice from the General Partner confirming such additional services.
Each of the fees in this proposal is subject to an annual escalation, the implementation of which shall be subject to UMB’s sole discretion, equal to the increase in the Consumer Price
26
Index – Urban Wage Earners (“CPI”), which escalation shall be effective commencing one year from the Effective Date of the Agreement (the “Anniversary Date”) and on the corresponding Anniversary Date each year thereafter. CPI shall be determined by reference to the Consumer Price Index News Release issued by the Bureau of Labor Statistics, U.S. Department of Labor.
| • | Fees for services not contemplated by this schedule will be negotiated on a case-by-case basis. |
27
Schedule D
to the
Ceres Managed Futures LLC
UMB Fund Services, Inc.
RECORDS MAINTAINED BY TRANSFER AGENT
| • | Account applications |
| • | Checks including check registers, reconciliation records, any adjustment records and tax withholding documentation |
| • | Indemnity bonds for replacement of lost or missing checks |
| • | Subscription and redemption documentation including signature guarantees and any supporting documentation |
| • | Limited Partner correspondence |
| • | Limited Partner transaction records |
| • | Unit transaction history of the Fund |
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