SERVICES AGREEMENT
TABLE OF CONTENTS
| Page | ||||||||
| SECTION 1. | DEFINED TERMS; APPOINTMENT AND DELIVERY OF DOCUMENTS | 1 | ||||||
| SECTION 2. | DUTIES OF ATLANTIC AND THE TRUST | 4 | ||||||
| SECTION 3. | STANDARD OF CARE; INDEMNIFICATION; RELIANCE; AND LIABILITY LIMITATIONS | 7 | ||||||
| SECTION 4. | COMPENSATION AND EXPENSES | 9 | ||||||
| SECTION 5. | EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT | 10 | ||||||
| SECTION 6. | ADDITIONAL FUNDS OR CLASSES OF SHARES | 12 | ||||||
| SECTION 7. | RECORDKEEPING; PROPRIETARY INFORMATION; CONFIDENTIALITY | 12 | ||||||
| SECTION 8. | REPRESENTATIONS, WARRANTIES AND AGREEMENTS | 14 | ||||||
| SECTION 9. | FORCE MAJEURE | 16 | ||||||
| SECTION 10. | ACTIVITIES OF ATLANTIC | 17 | ||||||
| SECTION 11. | AUDIT RIGHTS; COOPERATION WITH CHIEF COMPLIANCE OFFICER OTHER SERVICE PROVIDERS AND INDEPENDENT ACCOUNTANTS | 17 | ||||||
| SECTION 12. | SERVICE DAYS | 19 | ||||||
| SECTION 13. | LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY | 19 | ||||||
| SECTION 14. | TAXES | 19 | ||||||
| SECTION 15. | MISCELLANEOUS | 19 | ||||||
| APPENDIX A | SERVICES | X-0 | ||||||
| XXXXXXXX X | DEPENDENCIES | B-1 | ||||||
| APPENDIX C | FORMS OF CERTIFICATIONS | X-0 | ||||||
| XXXXXXXX X | XXXX XX XXXXX | X-0 |
- i -
AGREEMENT dated as of the 24th day of January, 2014, by and between Context Capital Funds, a Delaware statutory trust, with its principal office and place of business at Three Xxxxx Xxxxx, Xxxxxxxx, Xxxxx, 00000 (the "Trust"), and Atlantic Fund Administration, LLC, a Delaware limited liability company, with its principal office and place of business at Three Xxxxx Xxxxx, Xxxxxxxx, Xxxxx 00000 (together with its successors in interest, "Atlantic").
W I T N E S S E T H :
WHEREAS, the Trust is registered under the Investment Company Act of 1940, as amended (the "1940 Act"), as an open-end management investment company and may issue its shares of beneficial interest, par value $0.001 per share (the "Shares"), in separate series and classes; and
WHEREAS, the Trust offers shares in various series as listed in Appendix D (each such series, together with all other series subsequently established by the Trust and made subject to this Agreement in accordance with SECTION 6, being herein referred to as a "Fund," and collectively as the "Funds") and the Trust may in the future offer shares of various classes of each Fund as listed in Appendix D (each such class together with all other classes subsequently established by the Trust in a Fund being herein referred to as a "Class," and collectively as the "Classes"); and
WHEREAS, the Trust desires that Atlantic perform certain services for each Fund and Class thereof, and Atlantic is willing to provide those services, on the terms and conditions set forth in this Agreement.
NOW THEREFORE, for and in consideration of the mutual covenants and agreements contained herein, the Trust on its behalf and on behalf of each Fund and Atlantic hereby agree as follows:
"Affiliate" means, with respect to any Person, any other Person that is controlled by, controls, or is under common control with such Person; for purposes hereof, "control" of a Person means (i) ownership of, or possession of the right to vote, more than 25% of the outstanding voting equity of that Person or (ii) the right to control the appointment of the board of directors or similar governing body, management or executive officers of that Person.
"Affiliated" mean the relationship of being an Affiliate to another Person.
"Agreement" means this Agreement and any appendices and schedules attached hereto, in each case as any of them may be amended from time to time.
"AML" has the meaning set forth in SECTION 2.2 of Appendix A (Part III).
"AML Compliance Officer" has the meaning set forth in SECTION 4 of Appendix A (Part III).
"Governing Body" means, for any entity, the Person or body of Persons governing the operations of the entity (for example, if the entity is a corporation, its board of directors).
"Instruction" means any oral and written notice or statement directing action or inaction, including any such notice or statement transmitted to Atlantic (i) in electronic format by machine-readable input, electronic mail, CRT data entry or other similar means, or (ii) in person or by telephone, facsimile, email by portable data format (.pdf) or other machine-readable format or other electronic means.
"Intellectual Property Rights" means: (i) trademarks, service marks, brand names, certification marks, trade dress, trade names and other indications of origin, and the goodwill associated with the foregoing; (ii) inventions, discoveries and improvements, whether patentable or not; (iii) patents, applications for patents, inventors' certificates and invention disclosures; (iv) non-public information, ideas, trade secrets and confidential information and rights to limit the use or disclosure thereof by any Person; (v) copyrightable works, including writings, databases, computer software programs and documentation; (vi) copyrights and mask works; (vii) any similar intellectual property or proprietary rights; and (viii) any claims or causes of action arising out of or related to any infringement or misappropriation of any of the foregoing; in each case, including all registrations, applications for registration, applications, renewals, extensions, and reissues, of or for any of the foregoing and in any jurisdiction.
"Party" means each of the Trust and Atlantic.
"Person" means any natural person or incorporated or unincorporated entity.
"SEC" means the United States Securities and Exchange Commission and any successor governmental authority.
"Securities Act" means the Securities Act of 1933, as amended.
"Third Party Contract" means a contract or other understanding or agreement (other than this Agreement) between or among (i) the Trust and (ii) a Third Party Service Provider to the Trust pursuant to which such third party is obligated to take or refrain from taking actions that are necessary or useful for the orderly and timely delivery of the Services, including contracts or understandings with (A) Advisers, (B) principal underwriters, (C) Persons acting as PEO, PFO or CCO and their respective employers, (D) Fund Intermediaries, and (E) Non-Discretionary Subcontractors.
"Third Party Service Provider" means any Person that provides services to the Trust under a Third Party Contract.
Other capitalized terms used but not defined in this SECTION 1(a) shall have the meanings set forth in the table below:
1934 Act 7
1940 Act ii
38a-1 Compliance Program 4
38a-1 Manuals 18
Adviser 4
Atlantic ii
Atlantic Indemnitees 7
Atlantic Processes 6
Authorized Person 3
Board 4
CCO 6
Change Control Process 5
Class ii
Dependencies 5
Dependencies Schedule 5
Disclosing Party 14
Effective Date 10
Executive Officers 4
Fee Schedule 9
Fund ii
Fund Intermediaries 5
Governmental Authority 3
Law 3
NAV 8
NAV Difference 8
Non-Discretionary Subcontractors 6
NSCC 8
Organic Documents 4
Partial Termination 10
PEO 4
PFO 4
Plan 4
Policies and Procedures 4
Policy 16
Privacy Laws 14
Proprietary Information 13
Prospectus 4
Recalculated NAV 8
Receiving Party 14
Registration Statement 4
Reviews 18
Service Change 5
Service Change Plan 5
Service Plan 4
Service Providers 15
Services 4
Services Operations 18
Shareholders 4
Shares ii
Standard of Care 7
termination costs 12
Trust ii
Trust Counsel 6
Trust Records 13
For purposes of this Agreement, (i) the capitalized term "Law" means any statutes, rules and regulations of any Governmental Authority and applicable judicial or regulatory interpretations thereof, (ii) "Governmental Authority" means any court, government department, central bank, commission, board, bureau, agency, securities or futures industry associations or other regulatory, self-regulatory, administrative, judicial, executive, legislative or governmental entity in any country or jurisdiction and (iii) "Authorized Person" means any Executive Officer, the Board or any committee thereof or any other Person designated in writing by the Board.
(b) The Trust hereby appoints Atlantic, and Atlantic hereby agrees, to act or to cause an Affiliate to act for the Trust and for each of the Funds for the period and on the terms set forth in this Agreement as administrator, fund accountant and transfer agent for the authorized and issued Shares, including dividend disbursing agent and agent in connection with any accumulation plan, open-account plan, periodic investment plan, periodic withdrawal program or similar plan or programs provided to the registered owners of Shares ("Shareholders") and set out in the currently effective prospectuses and statements of additional information of the applicable Fund (collectively, as currently in effect and as amended or supplemented, the "Prospectus"). As the context may require (including in relation to the delivery of the Services and information, and compliance with recordkeeping requirements), references herein to Atlantic include Atlantic and such Affiliates to which Atlantic may from time to time subcontract the performance of the Services or any portion thereof pursuant to SECTION 5(f) of this Agreement.
Pursuant and subject to the provisions of this Agreement, including SECTION 5(f) hereof, Atlantic shall be fully responsible to the Trust for the acts and omissions of any such subcontractor as Atlantic is for its own acts and omissions under this Agreement.
(c) In connection herewith, the Trust has delivered to Atlantic or Atlantic has received copies of (i) the Trust's Trust Instrument (collectively, with the Trust's Bylaws, if any, as amended from time to time, "Organic Documents"), (ii) the Trust's Registration Statement and all amendments thereto filed with the SEC pursuant to the Securities Act or the 1940 Act (the "Registration Statement"), (iii) the current Prospectus for each Fund, (iv) each current plan of distribution or similar document adopted by the Trust under Rule 12b-1 promulgated by the SEC under the 1940 Act ("Plan") and each current shareholder service plan or similar document adopted by the Trust ("Service Plan"), (v) all policies and procedures adopted by the Trust with respect to the Funds (e.g., repurchase agreement procedures) ("Policies and Procedures") and (vi) the Trust's current compliance program adopted under Rule 38a-1 under the 1940 Act (the "38a-1 Compliance Program"), and shall promptly furnish Atlantic with all amendments of or supplements to the foregoing.
(a) Subject to the direction and control of the Board of Trustees of the Trust (the "Board") and as detailed in this Agreement, Atlantic shall manage, coordinate and report to the Board and, subject and pursuant to SECTION 11 of this Agreement, to the principal executive officer ("PEO") and the principal financial officer ("PFO") of the Trust, as such terms are defined in the Xxxxxxxx-Xxxxx Act of 2002 (the "Executive Officers") regarding the (i) Services and (ii) such other matters related to the services provided to the Trust by an Affiliate of Atlantic as may be specifically set forth in this Agreement.
(b) With respect to the Trust or one or more Funds, as applicable, and subject to the terms and conditions of this Agreement, Atlantic shall provide the services set forth in Appendix A (the "Services"). Atlantic shall provide such other services and assistance relating to the affairs of the Trust or an investment adviser to a Fund or the Funds (collectively, the "Adviser") as the Trust may, from time to time, reasonably request pursuant to mutually acceptable agreements (including compensation agreements).
(c) Atlantic shall reasonably cooperate with the Trust to accommodate non-material changes and adjustments to any Service; the Trust recognizes that isolated requests for changes or adjustments, when combined with other such requests, may in the aggregate have a material effect. If (i) the Trust requests (A) the addition of a new service, or (B) any material change or adjustment to any Service, or (ii) in the event that the Trust materially amends its Policies and Procedures or 38a-1 Compliance Program or there is a material change in Law related to or affecting any Service (collectively, a "Service Change"), the parties shall cooperate with one another to implement such addition, change or adjustment in a manner that minimizes any material adverse effect on the Trust. The parties shall mutually determine the date on which such Service Change shall take place, and develop a written plan to implement such Service Change (a "Service Change Plan"), as well as any implementation or additional fees and expenses that may be required to effect such Service Change. Each Service Change Plan will include applicable obligations for each Party and will specify (A) actions to be taken by parties to Third Party Contracts, and (B) an effective date for the completion of the Service Change Plan. Notwithstanding the foregoing, Atlantic shall have no obligation to effect any Service Change unless and until it has agreed to do so in writing. Any Service Change made by the parties shall become part of the Services for all purposes under this Agreement thereafter. For purposes of this Agreement, the foregoing shall be the "Change Control Process."
(d) In addition to the limitation of liability set forth in SECTION 3 of this Agreement, Atlantic shall not be liable to the Trust or any other Person for any failure to provide any Service in the following circumstances, but only for so long as such circumstances continue (and for a reasonable period thereafter taking into account the impact that such an occurrence has on Atlantic's ability to comply with its obligations under this Agreement):
(i) if any relevant Dependencies (as defined in Appendix B), hereinafter the "Dependencies Schedule", "Dependencies") upon which performance of the relevant Service depends are not met and the failure to meet any such Dependencies was not a result of delay, or failure to provide information or take action, by Atlantic required to be provided or taken under this Agreement;
(ii) if the failure to perform the Services is at the request or with the consent of the Trust or an Authorized Person;
(iii) if the failure to perform the Services results from incorrect or corrupted information provided by (A) any Third Party Service Provider, including any Adviser, the principal underwriter for a Fund, brokers or other intermediaries through which a Fund's Shares may be sold or distributed ("Fund Intermediaries") and any other current or predecessor service providers to the Trust or (B) valuation or market information providers, pricing
services, couriers, software houses, custodians (excluding Atlantic), clearing systems or depositories, provided, that (1) if any such Person described in clause (B) above is chosen by Atlantic, then the selection of such Person must have been reasonable under the circumstances (and the selection of such a Person shall be deemed reasonable if, after notice explicitly identifying such selection and providing an opportunity to object to such selection, the Board or an Executive Officer does not object to such selection); and (2) in any event, Persons shall be deemed reasonable if they are selected or retained at the direction of the Trust or an Authorized Person ("Non-Discretionary Subcontractors") or with the written consent of the Trust or an Authorized Person; and/or
(iv) if any Law to which Atlantic or any third party is subject prevents or limits the performance of the duties and obligations of Atlantic, and, if such Law affects Atlantic, Atlantic has notified the Trust or an Authorized Person.
Notwithstanding the foregoing, Atlantic shall nevertheless use reasonable efforts to provide the Services while any of the circumstances specified in this SECTION 2(d) subsist; provided that Atlantic shall not be liable for any additional costs in doing so (other than costs that it would have had to incur in the ordinary course of providing the Services, assuming such circumstances had not so occurred). To the extent, Atlantic incurs any such additional costs in endeavoring to supply the Services, Atlantic shall promptly notify an Authorized Person, and the Trust shall reimburse those costs to Atlantic to the extent that they have been reasonably incurred (and Atlantic used reasonable efforts to mitigate such costs) or they have been agreed in advance between the parties.
(e) Nothing contained herein shall be construed to require Atlantic to perform any service that could cause Atlantic to be deemed an investment adviser for purposes of the 1940 Act or the Investment Advisers Act of 1940, as amended, or that could cause a Fund to act in contravention of the Prospectus or any provision of the 1940 Act. The Trust acknowledges and agrees that (i) the summary of the Services set out in Appendix A are intended to define the scope of the Services to be provided; and (ii) subject to the Board's right to audit the efficacy of the Atlantic Processes in connection with discharging the Board's obligations under Rule 38a-1 and pursuant to SECTION 11 of this Agreement, the procedures, features, functionalities, systems and/or facilities ("Atlantic Processes") that support the provision of the Services by Atlantic or any Affiliated subcontractor shall be a matter for the sole discretion of Atlantic. Except as otherwise specifically provided in Appendix A with respect to the Services, the Trust assumes all responsibility for ensuring that the Trust complies in all material respects with all applicable requirements of the Securities Act, the 1940 Act and any other Laws applicable to the Trust.
(f) Atlantic shall perform the Services (i) in material compliance with Laws applicable to Atlantic and (ii) subject to the terms of this Agreement, in observance of the Policies and Procedures and the 38a-1 Compliance Program.
(g) Atlantic shall (i) promptly notify the Trust's chief compliance officer ("CCO") and its legal counsel, if any, ("Trust Counsel") of any material violation of Law known to Atlantic by the Trust or any Funds and (ii) at each meeting of the Board and at such other times as determined appropriate by Atlantic, notify the Board of any other violation of Law by Atlantic or a Third Party Service Provider affecting the Trust of which Atlantic becomes aware in providing the Services, including as a result of information generated by Atlantic, detected through Atlantic's internal or external audit procedures or provided to Atlantic by other service providers to the Trust or any Atlantic subcontractor.
(h) Prior to the commencement of Atlantic's responsibilities under this Agreement with respect and to the extent applicable to a new Fund, the Trust shall deliver or cause to be delivered to Atlantic (i) an accurate list of Shareholders, showing each Shareholder's address of record, number of Shares owned and whether such Shares are represented by outstanding share certificates and (ii) all Shareholder and Fund records, files, and other materials necessary or appropriate for proper performance of the functions assumed by Atlantic under this Agreement.
(i) In order for Atlantic to perform the Services required by this Agreement, the Trust shall take reasonable steps to encourage all service providers to the Trust to furnish any and all information to Atlantic as reasonably requested by Atlantic, and assist Atlantic as may be necessary or desirable.
(a) Atlantic shall be under no duty to take any action except as specifically set forth in this Agreement or as may be specifically agreed to by Atlantic in writing. Atlantic shall use commercially reasonable judgment and efforts in rendering the Services; provided, however, that notwithstanding the foregoing or any other provision of this Agreement to the contrary, Atlantic shall not be liable to the Trust, any Shareholder or any other Person for any action or inaction of Atlantic relating to any event whatsoever in the absence of bad faith, willful misfeasance or
gross negligence in the performance of Atlantic's duties or obligations under this Agreement or Atlantic's reckless disregard of its duties and obligations under this Agreement (the "Standard of Care").
(b) The Trust agrees to indemnify and hold harmless Atlantic, its employees, agents, subcontractors, directors, officers and managers and any Person or Persons who control Atlantic within the meaning of section 15 of the Securities Act or section 20 of the Securities Exchange Act of 1934, as amended (the "1934 Act"), ("Atlantic Indemnitees") against and from any and all claims, demands, actions, suits, judgments, liabilities, losses, damages, costs, charges, reasonable counsel fees and other expenses of every nature and character arising out of or in any way related to (A) Atlantic's actions taken or failures to act with respect to a Fund or (B) incident to the delivery of the Services, except those actions or failures to act for which Atlantic would be in breach of the Standard of Care.
(c) Atlantic agrees to indemnify and hold harmless the Trust, its employees, agents, trustees and officers against and from any and all claims, demands, actions, suits, judgments, liabilities, losses, damages, costs, charges, reasonable counsel fees and other expenses of every nature and character arising out or in any way related to (A) Atlantic's actions taken or failures to act with respect to a Fund or (B) incident to the delivery of the Services, in each case for which Atlantic would be in breach of the Standard of Care.
(d) The Trust agrees to indemnify and hold harmless Atlantic, its employees, agents, trustees and officers against and from any and all claims, demands, actions, suits, judgments, liabilities, losses, damages, costs, charges, reasonable counsel fees and other expenses of every nature and character arising out or in any way related to any action or failure or omission to act by the National Securities Clearing Corporation or any successor thereto (the "NSCC"). Atlantic will subrogate to the Trust any legal claims Atlantic has against NSCC and will, if reasonably requested by the Trust, sign all documents necessary for the Trust to pursue such claims.
(g) For purposes of this Agreement, (i) a net asset value difference ("NAV Difference") shall mean the difference between the net asset value per Share ("NAV") at which a shareholder purchase or redemption should have been effected ("Recalculated NAV") and the NAV at which the purchase or redemption was effected, expressed as a positive number, (ii) any NAV Difference and any Atlantic liability therefrom are to be calculated each time a
Fund's (or Class's) NAV is calculated, (iii) in calculating any NAV Difference, losses and gains of the affected Fund or Class shall be netted and (iv) in calculating any NAV Difference that continues for a period covering more than one NAV determination, losses and gains of the affected Fund or Class for the period shall be netted to the extent consistent with applicable law, requirements and guidance as promulgated by the SEC.
(h) In order that the indemnification provisions contained in this SECTION 3 shall apply, upon the assertion of a claim for which either Party may be required to indemnify the other, the Party seeking indemnification shall promptly notify the other Party of such assertion, and shall keep the other Party advised with respect to all developments concerning such claim. The Party who may be required to indemnify shall have the option to participate with the Party seeking indemnification in the defense of such claim or to defend against said claim in its own name or in the name of the other Party. The Party seeking indemnification shall in no case confess any claim or make any compromise in any case in which the other Party may be required to indemnify it except with the other Party's prior written consent.
(i) Notwithstanding any other provision of this Agreement to the contrary, neither Party to this Agreement shall be liable to the other Party or any Atlantic Indemnitee or other indemnitee for any indirect, special or consequential damages in relation to the subject matter of this Agreement or under any provision of this Agreement, even if advised of the possibility of the same.
(j) The Trust, and not Atlantic, shall be solely responsible for approval of the designation and compensation of the CCO, as well as for removing the CCO from the CCO's responsibilities related to the Trust in accordance with Rule 38a-1. Therefore, notwithstanding anything in this Agreement to the contrary, the Trust shall be responsible for supervising the activities of the CCO related to the Trust.
(a) In consideration of the Services provided by Atlantic pursuant to this Agreement, the Trust shall pay Atlantic, with respect to each Fund, the fees set forth in a separate document agreed to from time to time by the Parties (the "Fee Schedule"). These fees shall be accrued by the Trust daily and shall be payable monthly in arrears on the second business day of each calendar month for services performed under this Agreement during the prior calendar month. Reimbursement shall be payable monthly in arrears on the second business day of each calendar month for services performed under this Agreement during the prior calendar month.
If fees begin to accrue in the middle of a month or if this Agreement terminates before the end of any month, all fees for the period from that date to the end of that month or from the beginning of that month to the date of termination, as the case may be, shall be prorated according to the proportion that the period bears to the full month in which the effectiveness or termination occurs. Upon the termination of this Agreement with respect to a Fund, the Trust shall pay to Atlantic such compensation as shall be payable prior to the effective date of termination.
(a) This Agreement shall become effective as between Atlantic and the Trust on the date first above written ("Effective Date"). This Agreement shall continue in effect for (3) three years and shall renew automatically for successive one (1) year periods unless either Party gives written notice to the other Party not less than 120 days prior to the then current expiration date of this Agreement of the election not to renew the term of this Agreement. This Agreement shall become effective with respect to a new Fund on the date of the commencement of operations of the Fund; provided, however, that the foregoing term of this Agreement shall not be affected by the addition of a new Fund. Upon effectiveness of this Agreement, it shall supersede all previous agreements between the parties hereto covering the subject matter hereof insofar as any such agreement may have been deemed to relate to the Trust or the Funds.
(b) This Agreement shall continue in effect (i) until terminated in its entirety or (ii), with respect to any Fund or with respect to the Services described in any one or more of the parts of Appendix A provided to any one or more of the Funds, until terminated as to a Fund or a Service described in any one or more of the parts of Appendix A provided to a Fund (a "Partial Termination").
(c) This Agreement may be terminated in its entirety or there may be a Partial Termination:
Notwithstanding any provision of this Agreement to the contrary, in the event the Board determines to liquidate a Fund, this Agreement may be terminated, with respect to such Fund(s), at any time on at least thirty (30) days written notice thereof to Atlantic. In the event of a Partial Termination the Parties shall agree to compensation with respect to the non-terminated Services in accordance with the Change Control Process.
(d) Upon notice of termination by either Party of this Agreement, in its entirety or with respect to any Fund or any Service provided to any Fund, Atlantic shall promptly transfer to any successor service providers the original or copies of all books and records maintained by Atlantic under this Agreement including, in the case of records maintained on computer systems, copies of such records in commercially reasonable, machine-readable form, and shall cooperate with, and provide reasonable assistance to, the successor service provider(s) in the establishment of the books and records necessary to carry out the successor service providers' responsibilities. Should the Trust exercise its right to terminate this Agreement (including termination by Atlantic following a Partial Termination by the Trust as to which the Trust has termination cost obligations), the Trust shall (i) pay to Atlantic annual fees through the term of the agreement and (ii) reimburse Atlantic for Atlantic's reasonable costs associated with the copying and movement of records and material to any successor Person, providing assistance to any successor Person in the establishment of the accounts and records necessary to carry out the successor's responsibilities and Atlantic's out-of-pocket costs incurred in the termination or modification of any agreements (including software and data licenses) with third parties that are used by Atlantic primarily for the purpose of providing Services to the Trust or any Fund hereunder ("termination costs"); provided, however, that, notwithstanding anything herein to the contrary, the Trust shall have no obligation to reimburse Atlantic for its costs if the Trust terminates this Agreement pursuant to clause (c)(ii) above or if Atlantic terminates this Agreement pursuant to clause (c)(i) above (other than termination by Atlantic following a Partial Termination by the Trust as to which the Trust has termination cost obligations).
(e) The provisions of SECTION 3, SECTION 4, SECTION 5, SECTION 7 (other than SECTION 7(a)), SECTION 13 and SECTION 15 shall survive any termination of this Agreement.
(f) Except as otherwise provided in this Agreement, neither this Agreement nor any rights or obligations under this Agreement may be assigned by any Party without the written consent of the other Party. This Agreement shall inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. Subject to prior notice to the Trust, Atlantic may, without further consent on the part of the Trust, (i) assign this Agreement to any Affiliate of Atlantic or (ii) subcontract for the performance hereof with any entity, including an Affiliate of Atlantic; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of any assignee or subcontractor as Atlantic is for its own acts and omissions under this Agreement and that no such assignment or subcontract will increase the compensation payable by the Trust to Atlantic under
this Agreement for the Services. Notwithstanding the foregoing, (A) Atlantic shall not be liable for the acts or omissions of (i) any Non-Discretionary Subcontractors or (ii) any assignee provided that the Trust has consented to such assignment and (B) Atlantic may subcontract for the performance hereof with any of its Affiliates without prior notice; provided however, that Atlantic shall be as fully responsible to the Trust for the acts and omissions of such Affiliate as Atlantic is for its own acts and omissions and that no such subcontract will increase the compensation payable by the Trust to Atlantic under this Agreement for the Services.
In the event that the Trust establishes one or more series or classes of Shares after the effectiveness of this Agreement, each such series or class of Shares shall become a Fund, or class of Shares of a Fund (if applicable), under this Agreement and shall be added to Appendix D.
(a) Atlantic shall prepare and maintain on behalf of the Trust the books and records detailed in the Appendices and such other records as are agreed from time to time in writing by Atlantic and the Trust (the "Trust Records"). The books and records maintained by Atlantic shall be prepared, maintained and, subject to SECTION 7(d) below, preserved by Atlantic in such form, for such periods and in such locations as may be required by the Laws applicable to the Trust, including Section 31 of the 1940 Act and Rule 38a-1 under the 1940 Act. Subject to SECTION 7(d) below and as otherwise required by Law, following termination of this Agreement, Atlantic shall have no obligation to retain any of the Trust Records and shall have the right, in its sole discretion, to destroy any and all of the Trust Records. The Trust Records in Atlantic's possession shall be the property of the Trust.
(b) Subject to Atlantic's then-current, reasonable confidentiality, security and data protection procedures, the Trust and its authorized representatives and any Governmental Authority with jurisdiction over the Trust shall have reasonable access to the Trust Records at all times during Atlantic's normal business hours. Upon the reasonable advance request of the Trust, an Authorized Person or the CCO, copies of Trust Records shall be provided by Atlantic to the Trust or its authorized representatives, provided that the Trust or the appropriate Fund shall pay Atlantic's reasonable costs of copying the Trust Records and any other out-of-pocket costs incurred by Atlantic in complying with such request.
(c) If Atlantic receives a request or demand from a third party, including a Governmental Authority with jurisdiction over the Trust, to inspect any Trust Records, Atlantic will endeavor to notify the Trust and to secure instructions from the Trust or an authorized representative about such inspection. Atlantic shall abide by such instructions for granting or denying the inspection; provided, that Atlantic may grant the inspection without instructions or in contravention of instructions if Atlantic is advised by counsel to Atlantic or the Trust that failure to do so is likely to result in liability to Atlantic, whether or not such liability would be subject to the indemnification provisions of SECTION 3 hereof; and provided, further, that in such event, Atlantic shall endeavor promptly to advise the Trust of such contrary advice, to the extent practicable in advance of any inspection.
(d) Upon termination of this Agreement, Atlantic shall, subject to payment of all undisputed amounts due to Atlantic hereunder and at the expense and direction of the Trust, transfer to the Trust or any successor service provider all Trust Records in the electronic or other medium in which such material is then maintained by Atlantic.
(e) The Trust acknowledges that the information provided by Atlantic pursuant to SECTION 11 of this Agreement, databases, computer programs, screen formats, report formats, interactive design techniques, and documentation manuals maintained by Atlantic on databases under the control and ownership of Atlantic or a third party retained by Atlantic constitute copyrighted, trade secret, or other proprietary information (collectively, "Proprietary Information") of substantial importance to Atlantic or the third party. The Trust agrees to treat all Proprietary Information as proprietary to Atlantic and further agrees that it shall (i) maintain as confidential any Proprietary Information and (ii) cause its Authorized Persons and other officers, directors, trustees and representatives to treat as confidential any Proprietary Information, and Atlantic may request and shall receive from any such Persons an executed acknowledgement by them of such obligations.
(f) The Trust and Atlantic (for purposes of SECTION 7(f) and SECTION 7(g), each a "Receiving Party") agree to keep confidential all information disclosed by the other Party (for purposes of SECTION 7(f) and SECTION 7(g), each a "Disclosing Party"), including all forms and types of financial, business, marketing, operations, technical, economic, engineering and personnel information of the Disclosing Party, whether tangible or intangible.
(g) Notwithstanding any provision of this Agreement to the contrary, the Trust and Atlantic agree that the following information shall not be deemed confidential information: (i) information that was known to the Receiving Party before receipt thereof from or on behalf of the Disclosing Party; (ii) information that is disclosed to the Receiving Party by a third Person who has a right to make such disclosure without any obligation of confidentiality to the Party seeking to enforce its rights under this SECTION 7; (iii) information that is or becomes generally known in the trade without violation of this Agreement by the Receiving Party; or (iv) information that is independently developed by the Receiving Party or its employees or Affiliates without reference to the Disclosing Party's confidential information.
(h) Notwithstanding any provision of this Agreement to the contrary, Atlantic may: (i) provide information to Atlantic's counsel and to Persons engaged by Atlantic or the Trust to provide or support the provision of Services; (ii) provide information consistent with operating procedures that are customary with respect to the services in the industry; (iii) identify the Trust as a client of Atlantic for Atlantic's sales and marketing purposes; and (iv) provide information as approved by the Trust or its authorized representative.
(i) Atlantic acknowledges that certain Shareholder information made available by the Trust to Atlantic or otherwise maintained by Atlantic under this Agreement may be deemed nonpublic personal information under the Xxxxx-Xxxxx-Xxxxxx Act and other applicable privacy laws (collectively, "Privacy Laws"). Atlantic agrees (i) not to disclose or use such information except as required to carry out its duties under the Agreement or as otherwise permitted by law in the ordinary course of business; (ii) to limit access to such information to authorized representatives of Atlantic and the Trust; (iii) to establish and maintain reasonable physical, electronic and procedural safeguards to protect against access to such information by unauthorized Persons; and (iv) to cooperate with the Trust and provide reasonable assistance in ensuring compliance with such Privacy Laws to the extent applicable to either or both of the parties, including to the extent Atlantic maintains or otherwise possesses consumer report information for a business purpose, the proper disposal of such information.
(j) Atlantic shall establish and maintain commercially reasonable facilities and procedures for safekeeping of all records maintained by Atlantic pursuant to this Agreement.
(vii) It shall compensate the CCO fairly, subject to the Board's right under any applicable Law (e.g., Rule 38a-1) to approve the designation, termination and level of compensation of the CCO and it shall not retaliate against the CCO should the CCO inform the Board of a compliance failure or take aggressive action to ensure compliance with the federal securities laws by the Trust or by any Adviser, administrator (as that term is defined in Rule 0-1 of the 1940 Act), principal underwriter or transfer agent to the Trust (collectively, "Service Providers").
(viii) It shall report to the Board promptly if it learns about CCO malfeasance or in the event the CCO is terminated as a Chief Compliance Officer by another management investment company registered under the 1940 Act (other than a termination arising in connection with termination of services by Atlantic on behalf of such management investment company).
(ix) It shall report to the Board if at any time it knows that the CCO is subject to the disqualifications set forth in Section 15(b)(4) of the 1934 Act or Section 9 of the 1940 Act.
(vii) The CCO shall be covered by the Trust's Directors & Officers/Errors & Omissions insurance policy (the "Policy"), and the Trust shall use reasonable efforts to ensure that the CCO's coverage under the Policy is (a) reinstated should the Policy be cancelled; (b) continued after the CCO ceases to serve as the Trust's CCO on substantially the same terms as such coverage is provided for Trust officers after such individuals are no longer officers of the Trust; or (c) continued in the event the Trust merges or terminates, on substantially the same terms as such coverage is provided for Trust officers (but for a period no less than six (6) years). The Trust shall provide Atlantic with proof of current coverage, including a copy of the Policy, and shall notify Atlantic immediately should the Policy be cancelled or terminated.
(viii) Each of the employees of Atlantic that serves or has served at any time as an officer of the Trust, including the CCO, President, Treasurer and the AML Compliance Officer, is covered by the Policy and subject to the provisions of the Trust's Organic Documents regarding indemnification of its officers.
Atlantic shall not be responsible or liable for any failure or delay in performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control including acts of civil or military authority, national emergencies, labor difficulties, fire, mechanical breakdowns, flood or catastrophe, acts of God, insurrection, war, riots or failure of the mails, transportation, communication or power supply. In addition, to the extent Atlantic's obligations hereunder are to oversee or monitor the activities of third parties, Atlantic shall not be liable for any failure or delay in the performance of Atlantic's duties caused, directly or indirectly, by the failure or delay of such third parties in performing their respective duties or cooperating reasonably and in a timely manner with Atlantic.
Except to the extent necessary to perform Atlantic's obligations under this Agreement, nothing herein shall be deemed to limit or restrict Atlantic's right, or the right of any of Atlantic's managers, officers or employees who also may be a trustee, officer or employee of the Trust, or Persons who are otherwise affiliated Persons of the
Trust to engage in any other business or to devote time and attention to the management or other aspects of any other business, whether of a similar or dissimilar nature, or to render services of any kind to any other Person.
(b) Subject to the terms of this Agreement, Atlantic shall also provide to the CCO a copy of (i) any SSAE 16 or similar report obtained by Atlantic (or any Affiliated subcontractor of a material portion of the Services) with respect to its operations (and the operations of any such Affiliated subcontractor) related to the Services from time to time, (ii) the various reports as may from time to time be agreed by the CCO and Atlantic (which may be delivered by Atlantic or, as applicable, any Affiliated subcontractor of a material portion of the Services) with the frequency set forth therein, and (iii) Atlantic's (or such Affiliated subcontractors') compliance policies ("38a-1 Manuals") applicable to Atlantic's (or such Affiliated subcontractors') operations related to the Services ("Services Operations"), as amended from time to time.
(c) Upon the Trust's reasonable request and subject to Atlantic's then-current, reasonable confidentiality, security and data protection procedures, Atlantic will permit the CCO and other authorized representatives of the Trust to visit with the appropriate personnel at Atlantic (or such Affiliated subcontractors) in order to conduct due diligence on, audit, inspect or otherwise examine the Services Operations and the Atlantic Processes (collectively, "Reviews"). The Trust agrees that a Review may cover the entire scope of the Services Operations and will occur at Atlantic's (or such Affiliated subcontractors') facilities upon reasonable advance notice and will be scheduled to occur during regular business hours. The expenses incurred by a Person conducting a Review shall not be borne by Atlantic. The parties will cooperate to minimize the disruption associated with Reviews, including the scope and timing of such Reviews. On-site Reviews of Atlantic (or such Affiliated subcontractors) will be limited to two (2) Reviews per calendar year, except if and to the extent that material service, information security or compliance issues with respect to the Services Operations merit additional Reviews in the reasonable opinion of the CCO.
(d) Atlantic shall provide certifications about Atlantic's Services Operations in the form attached hereto as Appendices C-1 through C-3 with the frequency and to the Person(s) detailed in such Appendices, as they may be amended as agreed by the Parties taking into account industry standards for such certifications. At such other times as the Trust and Atlantic may agree, Atlantic shall provide reasonable, mutually acceptable, written certifications about such other matters as may be reasonably requested by the Trust and agreed by Atlantic.
Atlantic shall notify the CCO or an Executive Officer upon completing the intended procedure/steps for correcting any such failure or violation.
(f) Subject to the provisions of this Agreement (including the Fee Schedule, the Change Control Process and SECTION 7 related to confidentiality), Atlantic shall cooperate with the Executive Officers, the CCO and the Trust's independent public accountants and shall take reasonable action to make all necessary information available to the accountants for the performance of the accountants' duties.
(g) Notwithstanding any other provision of this Agreement to the contrary, to the extent Atlantic is under this Agreement (including the Appendices) required to deliver or provide data, information or reports to any
Executive Officer or the CCO, Atlantic shall be deemed to have satisfied any such obligation if it has provided commercially reasonable access to a single database per Service containing the required data, information or report, which access may be granted subject to reasonable confidentiality and security requirements.
Nothing contained in this Agreement is intended to or shall require Atlantic, in any capacity under this Agreement, to perform any functions or duties on any day other than a business day of the Trust or of a Fund. Functions or duties normally scheduled to be performed on any day, which is not a business day of the Trust or of a Fund, shall be performed on, and as of, the next business day, unless otherwise required by Law.
The trustees of the Trust and the Shareholders shall not be liable for any obligations of the Trust or of the Funds under this Agreement, and Atlantic agrees that, in asserting any rights or claims under this Agreement, it shall look only to the assets and property of the Trust or the Fund to which Atlantic's rights or claims relate in settlement of such rights or claims, and not to the trustees of the Trust or the Shareholders.
Atlantic shall not be liable for any taxes, assessments or governmental charges that may be levied or assessed on any basis whatsoever in connection with the Trust or any Shareholder or any purchase of Shares, excluding taxes assessed against Atlantic for compensation received by it under this Agreement, unless the taxes, assessments or governmental charges are the result of acts or failures to act for which Atlantic would be in breach of the Standard of Care.
(a) Except for the Fee Schedule to add new Funds and Classes in accordance with SECTION 6, no provisions of this Agreement may be amended or modified in any manner except by a written agreement properly authorized and executed by both parties hereto.
(b) This Agreement shall be governed by, and the provisions of this Agreement shall be construed and interpreted under and in accordance with, the laws of the State of Delaware, without regard to the principles of conflicts of law.
(c) This Agreement constitutes the entire agreement between the parties hereto and, with respect to matters on or after the date hereof, supersedes any other agreement executed prior to the date hereof with respect to the subject matter hereof, whether oral or written.
(d) This Agreement may be executed by the parties hereto on any number of counterparts, and all of the counterparts taken together shall be deemed to constitute one and the same instrument.
(e) If any part, term or provision of this Agreement is held to be illegal, in conflict with any Law or otherwise invalid, the remaining portion or portions shall be considered severable and not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term or provision held to be illegal or invalid.
(f) All references herein to Sections and Appendices shall be deemed to be references to Sections of, and Appendices to, this Agreement unless the context requires otherwise. All Section headings, the table of contents, and the title page of this Agreement are for convenience of reference only and are not intended to interpret, define or qualify the meaning of any provision of this Agreement. Words in the singular include the plural and in the plural include the singular. The words "including", "includes", "included" and "include", when used, are deemed to be followed by the words "without limitation." Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "hereof," "herein" and "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
(g) Notices, requests, instructions and communications received by the parties at their respective principal places of business, or at such other address as a Party may have designated in writing, shall be deemed to have been properly given.
(h) Notwithstanding any other provision of this Agreement, the parties agree that the assets and liabilities of each Fund of the Trust are separate and distinct from the assets and liabilities of each other Fund and that no Fund shall be liable or shall be charged for any debt, obligation or liability of any other Fund, whether arising under this Agreement or otherwise.
(i) No Affiliated Person, employee, agent, director, officer or manager of Atlantic shall be liable at law or in equity for Atlantic's obligations under this Agreement.
(j) Each of the undersigned warrants and represents that they have full power and authority to sign this Agreement on behalf of the Party indicated and that their signature will bind the Party indicated to the terms hereof.
(k) Notwithstanding any provision of this Agreement to the contrary, Atlantic shall not be obligated to provide legal representation to the Trust or any Fund, including through the use of attorneys that are employees of Atlantic.
(l) Each Appendix to this Agreement is part of this Agreement. In the event of any conflict between this Agreement and any Appendices, this Agreement shall control. To the extent Atlantic is required to deliver a report to the Trust under this Agreement, such obligation cannot be discharged by Atlantic delivering such report to itself or to an Affiliated subcontractor (including itself or such Affiliated subcontractor acting in any capacity under this Agreement other than in its capacity in delivering such report).
(m) Except as specifically set forth in SECTION 3(b) and SECTION 3(c), there are no third party beneficiaries of this Agreement.
(n) This Agreement shall be construed without regard to any presumption or other rule requiring construction against the party or parties that drafted this Agreement or caused it to be drafted.
[Remainder of Page Intentionally Blank]IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their names and on their behalf by and through their duly authorized officers, as of the day and year first above written.
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Chairman
ATLANTIC FUND ADMINISTRATION, LLC
By: /s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
President
