FUND ACCOUNTING SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of the last day written on the signature page by and between THE FINITE SOLAR
FINANCE FUND, a Delaware statutory trust (the “Fund”) and U.S. BANCORP FUND SERVICES, LLC d/b/a U.S. BANK GLOBAL FUND
SERVICES, a Wisconsin limited liability company (“USBGFS”).
WHEREAS, the Fund will be registered under the Investment Company Act of 1940, as amended (the “1940 Act”), as a closed-end, non-diversified management investment company that
will operate as an interval fund pursuant to Rule 23c-3 under the 1940 Act; and
WHEREAS, USBGFS is, among other things, in the business of providing mutual fund accounting services to investment companies; and
WHEREAS, the Fund desires to retain Fund Services to provide accounting services.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, 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.
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Appointment of USBGFS as Fund Accountant
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The Fund hereby appoints USBGFS as fund accountant of the Fund on the terms and conditions set forth in this Agreement, and USBGFS hereby accepts such appointment and agrees to perform the
services and duties set forth in this Agreement. The services and duties of USBGFS shall be confined to those matters expressly set forth herein, and no implied duties are assumed by or may be asserted against USBGFS hereunder.
2.
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Services and Duties of USBGFS
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Fund Services shall provide the following accounting services to the Fund:
A.
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Portfolio Accounting Services:
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(1)
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Maintain portfolio records on a trade date+1 basis using security trade information communicated from the Fund’s investment adviser.
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(2)
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For each valuation date, obtain prices from a pricing source approved by the board of trustees of the Fund (the “Board of Trustees”) and apply those prices to the portfolio positions. For those securities where market quotations are
not readily available, the Board of Trustees shall approve, in good faith, procedures for determining the fair value for such securities.
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(3)
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Identify interest and dividend accrual balances as of each valuation date and calculate gross earnings on investments for each accounting period.
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1
(4)
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Determine gain/loss on security sales and identify them as short-term or long-term; account for periodic distributions of gains or losses to shareholders and maintain undistributed gain or loss balances as of each valuation date.
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(5)
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On a daily basis, reconcile portfolio holdings and cash of the Fund with the Fund’s custodian and/or prime brokerage account(s).
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(6)
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Transmit a copy of the portfolio valuation to the Fund’s investment adviser daily.
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(7)
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Review the impact of current day’s activity on a per share basis, and review changes in market value.
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B.
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Expense Accrual and Payment Services:
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(1)
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For each valuation date, monitor the expense accrual amounts as directed by the Fund as to methodology, rate or dollar amount.
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(2)
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Process and record payments for Fund expenses.
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(3)
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Account for Fund expenditures and maintain expense accrual balances at the level of accounting detail, as agreed upon by Fund Services and the Fund.
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(4)
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Provide expense accrual and payment reporting.
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C.
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Fund Valuation and Financial Reporting Services:
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(1)
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Account for Fund share purchases, sales, exchanges, transfers, dividend reinvestments, and other Fund share activity as reported by the Fund’s transfer agent on a timely basis.
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(2)
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Apply equalization accounting as directed by the Fund.
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(3)
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Determine net investment income (earnings) for the Fund as of each valuation date. Account for periodic distributions of earnings to shareholders and maintain undistributed net investment income balances as of each valuation date.
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(4)
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Maintain a general ledger and other accounts, books, and financial records for the Fund.
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(5)
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Determine the net asset value of the Fund according to the accounting policies and procedures set forth in the Fund's current prospectus.
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2
(6)
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Calculate per share net asset value, per share net earnings, and other per share amounts reflective of Fund operations at such time as required by the nature and characteristics of the Fund.
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(7)
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Communicate to the Fund, at an agreed upon time, the per share net asset value for each valuation date.
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(8)
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Prepare monthly reconciliations of sub-ledger reports to month-end ledger balances.
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D.
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Tax Accounting Services:
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(1)
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Maintain accounting records for the investment portfolio of the Fund to support the tax reporting required for “regulated investment companies” under the Internal Revenue Code of 1986, as amended (the
“Code”).
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(2)
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Maintain tax lot detail for the Fund’s investment portfolio.
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(3)
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Calculate taxable gain/loss on security sales using the tax lot relief method designated by the Fund.
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(4)
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Provide the necessary financial information to calculate the taxable components of income and capital gains distributions to support tax reporting to the shareholders.
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E.
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Compliance Control Services:
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(1)
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Support reporting to regulatory bodies and financial statement preparation by making the Fund's accounting records available to the Fund, the Securities and Exchange Commission (the “SEC”), and the independent accountants.
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(2)
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Maintain accounting records for the Fund as required by the 1940 Act and regulations provided thereunder.
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(3)
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Perform its duties hereunder in compliance with all applicable laws and regulations and provide any sub-certifications reasonably requested by the Fund in connection with any certification required of the Fund pursuant to the
Xxxxxxxx-Xxxxx Act of 2002 (the “SOX Act”) or any rules or regulations promulgated by the SEC thereunder, provided the same shall not be deemed to change USBGFS’ standard of care as set forth herein.
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(4)
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In order to assist the Fund in satisfying the requirements of Rule 38a-1 under the 1940 Act (the “Rule”), USBGFS will provide the Fund’s Chief Compliance Officer with reasonable access to USBGFS’ fund records relating the services
provided by it under this Agreement, and will provide quarterly compliance reports and related certifications regarding any Material Compliance Matter (as defined in the Rule) involving USBGFS that affect or could affect the Fund.
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3
(5)
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Cooperate with the Fund’s independent accountants and take all reasonable action in the performance of its obligations under this Agreement to ensure that the necessary information is made available to such accountants for the
expression of their opinion on the Fund’s financial statements without any qualification as to the scope of their examination.
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3.
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License of Data; Warranty; Termination of Rights
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A.
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The valuation information and evaluations being provided to the Fund by USBGFS pursuant hereto (collectively, the “Data”) are being licensed, not sold, to the Fund. The Fund has a limited license to use the Data only for purposes
necessary to valuing the Fund’s assets and reporting to regulatory bodies (the “License”). The Fund does not have any license nor right to use the Data for purposes beyond the intentions of this Agreement including, but not limited to,
resale to other users or use to create any type of historical database. The License is non-transferable and not sub-licensable. The Fund’s right to use the Data cannot be passed to or shared with any other entity.
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The Fund acknowledges the proprietary rights that USBGFS and its suppliers have in the Data.
B.
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THE FUND HEREBY ACCEPTS THE DATA AS IS, WHERE IS, WITH NO WARRANTIES, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY OR FITNESS FOR ANY PURPOSE OR ANY OTHER MATTER.
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C.
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USBGFS may stop supplying some or all Data to the Fund if USBGFS’ suppliers terminate any agreement to provide Data to USBGFS. Also, USBGFS may stop supplying some or all Data to the Fund if USBGFS reasonably believes that the Fund is
using the Data in violation of the License, or breaching its duties of confidentiality provided for hereunder, or if any of USBGFS’ suppliers demand that the Data be withheld from the Fund. Fund. USBGFS will provide notice to the Fund of
any termination of provision of Data as soon as reasonably possible.
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4.
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Pricing of Securities
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A.
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For each valuation date, USBGFS shall obtain prices from a pricing source approved by the Board of Trustees and apply those prices to the portfolio positions of the Fund. For those securities where market quotations are not readily
available, the Board of Trustees shall approve, in good faith, procedures for determining the fair value for such securities.
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If the Fund desires to provide a price that varies from the price provided by the pricing source, the Fund shall promptly notify and supply USBGFS with the price of any such security on each valuation date. All
pricing changes made by the Fund will be in writing and must specifically identify the securities to be changed by CUSIP, name of security, new price or rate to be applied, and, if applicable, the time period for which the new price(s) is/are
effective.
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B.
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In the event that the Fund at any time receives Data containing evaluations, rather than market quotations, for certain securities or certain other data related to such securities, the following provisions will apply: (i) evaluated
securities are typically complicated financial instruments. There are many methodologies (including computer-based analytical modeling and individual security evaluations) available to generate approximations of the market value of such
securities, and there is significant professional disagreement about which method is best. No evaluation method, including those used by USBGFS and its suppliers, may consistently generate approximations that correspond to actual “traded”
prices of the securities; (ii) methodologies used to provide the pricing portion of certain Data may rely on evaluations; however, the Fund acknowledges that there may be errors or defects in the software, databases, or methodologies
generating the evaluations that may cause resultant evaluations to be inappropriate for use in certain applications; and (iii) the Fund assumes all responsibility for edit checking, external verification of evaluations, and ultimately the
appropriateness of using Data containing evaluations, regardless of any efforts made by USBGFS and its suppliers in this respect.
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C.
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USBGFS shall not have any obligation to verify the accuracy or appropriateness of any prices, evaluations, market quotations, or other data or pricing related inputs received from the Fund, any of their affiliates, or any third party
source. Notwithstanding anything else in this Agreement to the contrary, USBGFS and its affiliates shall not be responsible or liable for any mistakes, errors, or mispricing, or any losses related thereto, resulting from any inaccurate,
inappropriate, or fraudulent prices, evaluations, market quotations, or other data or pricing related inputs received from the Fund, any of their affiliates, or any third party source.
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5.
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Changes in Accounting Procedures
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Any resolution passed by the Board of Trustees that affects accounting practices and procedures under this Agreement shall be effective upon written notice to USBGFS.
6.
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Changes in Equipment, Systems, Etc.
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USBGFS reserves the right to make changes from time to time, as it deems advisable, relating to its systems, programs, rules, operating schedules and equipment, so long as such changes do not
adversely affect the services provided to the Fund under this Agreement.
7.
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Compensation
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5
USBGFS shall be compensated for providing the services set forth in this Agreement in accordance with the fee schedule set forth on Exhibit A hereto (as amended from time to time). USBGFS
shall also be reimbursed for such miscellaneous expenses (set forth in Exhibit A as are reasonably incurred by USBGFS in performing its duties hereunder. The Fund shall pay all such fees and reimbursable expenses within 30 calendar days
following receipt of the billing notice, except for any fee or expense subject to a good faith dispute. The Fund shall notify USBGFS in writing within 30 calendar days following receipt of each invoice if the Fund is disputing any amounts in good
faith. The Fund shall pay such disputed amounts within 10 calendar days of the day on which the parties agree to the amount to be paid. With the exception of any fee or expense the Fund is disputing in good faith as set forth above, unpaid invoices
shall accrue a finance charge of 1½% per month after the due date. Notwithstanding anything to the contrary, amounts owed by the Fund to USBGFS shall only be paid out of the assets and property of the Fund involved.
8.
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Representations and Warranties
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A.
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The Fund hereby represents and warrants to USBGFS, which representations and warranties shall be deemed to be continuing throughout the term of this Agreement, that:
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(1)
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It is duly organized and existing under the laws of the jurisdiction of its organization, with full power to carry on its business as now conducted, to enter into this Agreement and to perform its obligations hereunder;
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(2)
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This Agreement has been duly authorized, executed and delivered by the Fund in accordance with all requisite action and constitutes a valid and legally binding obligation of the Fund, enforceable in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting the rights and remedies of creditors and secured parties;
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(3)
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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 charter, bylaws or any contract binding it or affecting its property which would prohibit its execution or performance of this Agreement;
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(4)
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A registration statement under the 1940 Act and, if applicable, the Securities Act of 1933, as amended, will be made effective prior to the effective date of this Agreement and will remain effective during the term of this Agreement,
and appropriate state securities law filings will be made prior to the effective date of this Agreement and will continue to be made during the term of this Agreement as necessary to enable the Fund to make a continuous public offering of
its shares; and
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6
(5)
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All records of the Fund provided to USBGFS by the Fund or by a prior service provider of the Fund are accurate and complete and USBGFS is entitled to rely on all such records in the form provided.
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B.
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USBGFS hereby represents and warrants to the Fund, which representations and warranties shall be deemed to be continuing throughout the term of this Agreement, that:
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(1)
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It is duly organized and existing under the laws of the jurisdiction of its organization, with full power to carry on its business as now conducted, to enter into this Agreement and to perform its obligations hereunder;
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(2)
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This Agreement has been duly authorized, executed and delivered by USBGFS in accordance with all requisite action and constitutes a valid and legally binding obligation of USBGFS, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting the rights and remedies of creditors and secured parties; and
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(3)
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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 charter, bylaws or any contract binding it or affecting its property which would prohibit its execution or performance of this Agreement.
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(4)
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It is not a party to any, and there are no, pending or threatened actions of any nature against it or its properties or assets which could, individually or in the aggregate, have a material effect upon its business or financial
condition; there is no statute, rule, regulation, injunction, order, judgment or decree binding on it and no provision of its charter or bylaws binding it or affecting its properties or assets which would prohibit its execution or
performance of this Agreement;
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(5)
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Its entrance into this Agreement shall not cause a material breach or be in material conflict with any other agreement or obligation of USBFS or any law or regulation applicable to it; and
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(6)
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It is not a party to any contract or under default under any contractual obligations which materially and adversely affects, or is likely to materially and adversely affect, its ability to perform hereunder.
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9.
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Standard of Care; Indemnification; Limitation of Liability
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7
A.
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USBGFS shall exercise reasonable care in the performance of its duties under this Agreement. Neither USBGFS nor any of its affiliates or suppliers shall be liable for any error of judgment; mistake of law; fraud or misconduct by the
Fund, the adviser or any other service provider to the Fund, or any employee of the foregoing; or for any loss suffered by the Fund, or any third party in connection with USBGFS’ duties under this Agreement, including losses resulting
from mechanical breakdowns or the failure of communication or power supplies beyond USBGFS’ reasonable control, except a loss arising out of or relating to USBGFS’ refusal or failure to comply with the terms of this Agreement (other than
where such compliance would violate applicable law) or from its bad faith, negligence, or willful misconduct in the performance of its duties under this Agreement. Notwithstanding any other provision of this Agreement, if USBGFS has
exercised reasonable care in the performance of its duties under this Agreement, the Fund shall indemnify and hold harmless USBGFS and its affiliates and suppliers from and against any and all claims, demands, losses, expenses, and
liabilities of any and every nature (including reasonable attorneys’ fees) that USBGFS or its affiliates and suppliers may sustain or incur or that may be asserted against USBGFS or its affiliates and suppliers by any person arising out
of or related to
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(X) any action taken or omitted to be taken by it in performing the services hereunder (i) in accordance with the foregoing standards, or (ii) in reliance upon any written or oral instruction
provided to USBGFS by any duly authorized officer of the Fund, as approved by the Board of Trustees of the Fund, or (Y) the Data, or any information, service, report, analysis or publication derived therefrom, except for any and all claims,
demands, losses, expenses, and liabilities arising out of or relating to USBGFS’ refusal or failure to comply with the terms of this Agreement (other than where such compliance would violate applicable law) or from its bad faith, negligence or
willful misconduct in the performance of its duties under this Agreement. This indemnity shall be a continuing obligation of the Fund, its successors and assigns, notwithstanding the termination of this Agreement. As used in this paragraph, the
term “USBGFS” shall include USBGFS’ directors, officers and employees.
The Fund acknowledges that the Data is intended for use as an aid to institutional investors, registered brokers or professionals of similar sophistication in making informed judgments
concerning securities. The Fund accepts responsibility for, and acknowledges it exercises its own independent judgment in, its selection of the Data, its selection of the use or intended use of such, and any results obtained.
Nothing contained herein shall be deemed to be a waiver of any rights existing under applicable law for the protection of investors.
USBGFS shall indemnify and hold the Fund harmless from and against any and all claims, demands, losses, expenses, and liabilities of any and every nature (including reasonable attorneys' fees)
that the Fund may sustain or incur or that may be asserted against the Fund by any person arising out of any action taken or omitted to be taken by USBGFS as a result of USBGFS’ refusal or failure to comply with the terms of this Agreement, or from
USBGFS’ fraud, bad faith, negligence, or willful misconduct in the performance of its duties under this Agreement. This indemnity shall be a continuing obligation of USBGFS, its successors and assigns, notwithstanding the termination of this
Agreement. As used in this paragraph, the term “Fund” shall include the Fund’s trustees, officers and employees.
8
In the event of a mechanical breakdown or failure of communication or power supplies beyond its reasonable control, USBGFS shall take all reasonable steps to minimize service interruptions for
any period that such interruption continues. USBGFS will make every reasonable effort to restore any lost or damaged data and correct any errors resulting from such a breakdown at the expense of USBGFS. USBGFS agrees that it shall, at all times,
have reasonable business continuity, cybersecurity and disaster recovery contingency plans with appropriate parties, making reasonable provision for emergency use of electrical data processing equipment to the extent appropriate equipment is
available. Representatives of the Fund shall be entitled to inspect USBGFS’ premises and operating capabilities at any time during regular business hours of USBGFS, upon reasonable notice to USBGFS. Moreover, USBGFS shall provide the Fund, at such
times as the Fund may reasonably require, copies of reports rendered by independent accountants on the internal controls and procedures of USBGFS relating to the services provided by USBGFS under this Agreement.
Notwithstanding the above, USBGFS reserves the right to reprocess and correct administrative errors at its own expense.
In no case shall either party be liable to the other for (i) any special, punitive, indirect or consequential damages, loss of profits or goodwill (even if advised of the possibility of such);
or (ii) any delay by reason of circumstances beyond its control, including acts of civil or military authority, national emergencies, labor difficulties, fire, mechanical breakdown, flood or catastrophe, acts of God, insurrection, war, riots, or
failure beyond its control of transportation or power supply.
B.
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In order that the indemnification provisions contained in this section shall apply, it is understood that if in any case the indemnitor may be asked to indemnify or hold the indemnitee harmless, the indemnitor shall be fully and
promptly advised of all pertinent facts concerning the situation in question, and it is further understood that the indemnitee will use all reasonable care to notify the indemnitor promptly concerning any situation that presents or
appears likely to present the probability of a claim for indemnification. The indemnitor shall have the option to defend the indemnitee against any claim that may be the subject of this indemnification. In the event that the indemnitor so
elects, it will so notify the indemnitee and thereupon the indemnitor shall take over complete defense of the claim, and the indemnitee shall in such situation initiate no further legal or other expenses for which it shall seek
indemnification under this section. The indemnitee shall in no case confess any claim or make any compromise or settlement in any case in which the indemnitor will be asked to indemnify the indemnitee except with the indemnitor’s prior
written consent.
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9
C.
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The indemnity and defense provisions set forth in this Section 9 shall indefinitely survive the termination and/or assignment of this Agreement.
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D.
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If USBGFS is acting in another capacity for the Fund pursuant to a separate agreement, nothing herein shall be deemed to relieve USBGFS of any of its obligations in such other capacity.
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E.
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It is understood and expressly stipulated that none of the Trustees, officers, agents or shareholders of the Fund shall be personally liable hereunder. All persons dealing with the Fund must look solely to the property of the Fund for
the enforcement of any claims against the Fund, as neither the Trustees, officers, agents or shareholders assume any personal liability for obligations entered into on behalf of the Fund.
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F.
10.
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Notification of Error
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The Fund will notify USBGFS of any discrepancy between USBGFS and the Fund, including, but not limited to, failing to account for a security position in the Fund’s portfolio, upon the later to
occur of: (i) three business days after receipt of any reports rendered by USBGFS to the Fund; (ii) three business days after discovery of any error or omission not covered in the balancing or control procedure; or (iii) three business days after
receiving notice from any shareholder regarding any such discrepancy.
11.
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Data Necessary to Perform Services
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The Fund or its agent shall furnish to USBGFS the data necessary to perform the services described herein at such times and in such form as mutually agreed upon.
12.
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Proprietary and Confidential Information
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A.
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USBGFS agrees on behalf of itself and its directors, officers, and employees to treat confidentially and as proprietary information of the Fund, all records and other information relative to the Fund and prior, present, or potential
shareholders of the Fund (and clients of said shareholders), and not to use such records and information for any purpose other than the performance of its responsibilities and duties hereunder, except (i) after prior notification to and
approval in writing by the Fund, which approval shall not be unreasonably withheld and may not be withheld where USBGFS may be exposed to civil or criminal contempt proceedings for failure to comply, (ii) when requested to divulge such
information by duly constituted authorities, or (iii) when so requested by the Fund. Records and other information which have become known to the public through no wrongful act of USBGFS or any of its employees, agents or representatives,
and information that was already in the possession of USBGFS prior to receipt thereof from the Fund or its agents or service providers, shall not be subject to this paragraph.
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10
Further, USBGFS will adhere to the privacy policies adopted by the Fund pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from time to time. In this regard, USBGFS shall have in
place and maintain physical, electronic and procedural safeguards reasonably designed to protect the security, confidentiality and integrity of, and to prevent unauthorized access to or use of, records and information relating to the Fund and its
shareholders.
B.
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The Fund agrees on behalf of itself and its trustees, officers, and employees to treat confidentially and as proprietary information of USBGFS, all non-public information relative to USBGFS (including, without limitation, the Data and
information regarding USBGFS’ pricing, products, services, customers, suppliers, financial statements, processes, know-how, trade secrets, market opportunities, past, present or future research, development or business plans, affairs,
operations, systems, computer software in source code and object code form, documentation, techniques, procedures, designs, drawings, specifications, schematics, processes and/or intellectual property), and not to use such information for
any purpose other than in connection with the services provided under this Agreement, except (i) after prior notification to and approval in writing by USBGFS, which approval shall not be unreasonably withheld and may not be withheld
where the Fund may be exposed to civil or criminal contempt proceedings for failure to comply, (ii) when requested to divulge such information by duly constituted authorities, or (iii) when so requested by the USBGFS. Information which
has become known to the public through no wrongful act of the Fund or any of its employees, agents or representatives, and information that was already in the possession of the Fund prior to receipt thereof from USBGFS, shall not be
subject to this paragraph.
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C.
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USBGFS agrees on behalf of itself and its directors, officers, and employees to treat confidentially and as proprietary information of the Fund, all non-public information relative to the Fund (including, without limitation, the books
and records of the Fund, information regarding the Fund’s shareholders, information regarding the Fund portfolios, arrangements with brokerage firms, compensation paid to or by the Fund, trading strategies and all such related
information), and not to use such information for any purpose other than in connection with the services provided under this Agreement, except (i) after prior notification to and approval in writing by the Fund, which approval shall not
be unreasonably withheld and may not be withheld where USBGFS may be exposed to civil or criminal contempt proceedings for failure to comply, (ii) when requested to divulge such information by duly constituted authorities, or (iii) when
so requested by the Fund. Information which has become known to the public through no wrongful act of USBGFS or any of its employees, agents or representatives, and information that was already in the possession of USBGFS prior to receipt
thereof from the Fund, shall not be subject to this paragraph.
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11
D.
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Notwithstanding anything herein to the contrary, (i) the Fund shall be permitted to disclose the identity of USBGFS as a service provider, redacted copies of this Agreement, and such other information as may be required in the Fund’s
registration or offering documents, or as may otherwise be required by applicable law, rule, or regulation, and (ii) USBGFS shall be permitted to include the name of the Fund in lists of representative clients in due diligence
questionnaires, RFP responses, presentations, and other marketing and promotional purposes.
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13.
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Records
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USBGFS shall keep records relating to the services to be performed hereunder in the form and manner, and for such period, as it may deem advisable and is agreeable to the Fund, but not
inconsistent with the rules and regulations of appropriate government authorities, in particular, Section 31 of the 1940 Act and the rules thereunder. USBGFS agrees that all such records prepared or maintained by USBGFS relating to the services to
be performed by USBGFS hereunder are the property of the Fund and will be preserved, maintained, and made available in accordance with such applicable sections and rules of the 1940 Act and will be promptly surrendered to the Fund or its designee
on and in accordance with its request, provided, however, that USBGFS may retain such copies of such records in such form as may be required to comply with any applicable law, rule, regulation, or order of any governmental, regulatory, or judicial
authority of competent jurisdiction.
14.
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Compliance with Laws
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A.
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The Fund has and retains primary responsibility for all compliance matters relating to the Funds, including but not limited to compliance with the 1940 Act, the Code, the SOX Act, the USA PATRIOT Act of 2001 and the policies and
limitations of the Fund relating to its portfolio investments as set forth in its current prospectus and statement of additional information (or similar disclosure documents) included in its registration statement on Form N-2 filed with
the SEC. USBGFS’ services hereunder shall not relieve the Fund of its responsibilities for assuring such compliance or the Board of Trustee’s oversight responsibility with respect thereto.
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15.
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Term of Agreement; Amendment
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A.
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This Agreement shall become effective as of the last date written on the signature page and will continue in effect for a period of three (3) years. Following the initial term, this Agreement shall automatically renew for successive
one (1) year terms unless either party provides written notice at least 90 days prior to the end of the then current term that it will not be renewing the Agreement.
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B.
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Subject to Section 16, this Agreement may be terminated by either party (in whole or with respect to one or more Funds) upon giving 90 days’ prior written notice to the other party or such shorter notice period as is mutually agreed
upon by the parties.
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12
C.
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USBGFS may terminate this Agreement immediately if the continued service of the Fund would cause USBGFS or any of its affiliates to be in violation of any applicable law, rule, regulation, or order of any governmental, regulatory or
judicial authority of competent jurisdiction, or if the Fund commits any act, or becomes involved in any situation or occurrence, tending to bring itself into public disrepute, contempt, scandal, or ridicule, or such that the continued
association with the Fund would reflect unfavorably upon USBGFS’ reputation, provided that in such event USBGFS shall, to the extent it is legally permitted and able to do so, provide reasonable assistance to transition the Fund to a
successor service provider.
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D.
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This Agreement may be terminated by any party upon the breach of the other party of any material term of this Agreement if such breach is not cured within 15 days of notice of such breach to the breaching party. In addition, the Fund
may, at any time, immediately terminate this Agreement in the event of: (i) the liquidation or dissolution of the Fund, or (ii) the appointment of conservator or receiver for USBFS or its affiliates by regulatory authorities or upon the
happening of any like event at the direction of an appropriate regulatory agency or court of competent jurisdiction.
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E.
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This Agreement may not be amended or modified in any manner except by written agreement executed by USBGFS and the Fund, and authorized or approved by the Fund’s Board of Trustees
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16.
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Early Termination
|
In the absence of (i) any material breach of this Agreement, (ii) the liquidation or dissolution of the Fund, or (iii) the appointment of conservator or receiver for USBFS or its affiliates by
regulatory authorities or upon the happening of any like event at the direction of an appropriate regulatory agency or court of competent jurisdiction, should the Fund elect to terminate this Agreement prior to the end of the then current term, the
Fund agrees to pay the following fees with respect to each Fund subject to the termination:
a.
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all monthly fees through the remaining term of the Agreement, including the repayment of any negotiated discounts (provided that no such fees shall be paid following the liquidation or dissolution of the Fund);
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b.
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all fees associated with converting services to successor service provider;
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c.
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all fees associated with any record retention and/or tax reporting obligations that may not be eliminated due to the conversion to a successor service provider;
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d.
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all miscellaneous costs associated with a. to c. above.
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17.
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Duties in the Event of Termination
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13
In the event that, in connection with termination, a successor to any of USBGFS’ duties or responsibilities hereunder is designated by the Fund by written notice to USBGFS, USBGFS will promptly, upon
such termination and, at the expense of the Fund (except where the termination was a result of a material breach by USBFS), transfer to such successor all relevant books, records, correspondence and other data established or maintained by USBGFS
under this Agreement in a form reasonably acceptable to the Fund (if such form differs from the form in which USBGFS has maintained the same, the Fund shall pay any reasonable expenses associated with transferring the data to such form), and will
cooperate in the transfer of such duties and responsibilities, including provision for assistance from USBGFS’ personnel in the establishment of books, records and other data by such successor. If no such successor is designated, then such books,
records and other data shall be returned to the Fund. The Fund shall also pay any fees associated with record retention and/or tax reporting obligations that USBGFS is obligated under applicable law, regulation, or rule to continue following the
termination.
18.
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Assignment
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This Agreement shall extend to and be binding upon the parties hereto and their respective successors and assigns; provided, however, that this Agreement shall not be assignable by the Fund
without the written consent of USBGFS, or by USBGFS without the written consent of the Fund accompanied by the authorization or approval of the Fund’s Board of Trustees.
19.
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Governing Law
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This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin, without regard to conflicts of law principles. To the extent that the applicable laws of
the State of Wisconsin, or any of the provisions herein, conflict with the applicable provisions of the 1940 Act, the latter shall control, and nothing herein shall be construed in a manner inconsistent with the 1940 Act or any rule or order of the
SEC thereunder.
20.
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No Agency Relationship
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Nothing herein contained shall be deemed to authorize or empower either party to act as agent for the other party to this Agreement, or to conduct business in the name, or for the account, of the
other party to this Agreement.
21.
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Services Not Exclusive
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Nothing in this Agreement shall limit or restrict USBGFS from providing services to other parties that are similar or identical to some or all of the services provided hereunder.
22.
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Invalidity
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Any provision of this Agreement which may be 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.
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23.
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Notices
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Any notice required or permitted to be given by either party to the other shall be in writing and shall be deemed to have been given on the date delivered personally or by courier service, or
three days after sent by registered or certified mail, postage prepaid, return receipt requested, or on the date sent and confirmed received by facsimile transmission to the other party’s address set forth below:
Notice to USBGFS shall be sent to:
U.S. Bank Global Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: President
and notice to the Fund shall be sent to:
0000 Xxxxxxx Xxxx, Xxxxx 0000-X
Xxxxx Xxxxxx, XX 00000
Xxxxx Xxxxxx, XX 00000
24.
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No Third Party Rights
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Nothing expressed or referred to in this Agreement will be construed to give any third party (including, without limitation, shareholders of the Fund) any legal or equitable right, remedy or claim
under or with respect to this Agreement.
25.
|
Multiple Originals
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This Agreement may be executed on two or more counterparts, each of which when so executed shall be deemed to be an original, but such counterparts shall together constitute but one and the same
instrument.
SIGNATURES ON THE FOLLOWING PAGE
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by a duly authorized officer on one or more counterparts as of the last date written below.
By:
Name:
Title:
Date:
U.S. BANCORP FUND SERVICES, LLC
By:
Name:
Title:
Date:
16
Exhibit A to the Fund Accounting Servicing Agreement
Fund Administration & Fund Accounting Services Fee Schedule1
Annual Fee Based Upon Average Net Assets Per Fund*
Basis Points
7 on the first $- 6 on the next $- 4 on the balance
$ - per fund - Minimum Annual Fee
■
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$ -additional fee for each additional class, Controlled Foreign Corporation (CFC), and/or sub-advisor
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■
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$ - additional fee of for each intraday NAV calculations in excess of one strike per day
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NOTE: Conversion, master/feeder, and extraordinary services quoted separately.
The fees above include the following core tax services: M-1 book-to-tax adjustments at fiscal and excise year-end, prepare tax footnotes in conjunction with fiscal year-end
audit, Prepare Form 1120-RIC federal income tax return and relevant schedules, Prepare Form 8613 and relevant schedules, Prepare Form 1099-MISC Forms, Prepare Annual TDF FBAR (Foreign Bank Account Reporting) filing, Prepare state returns (Limited
to two) and Capital Gain Dividend Estimates (Limited to two).
All schedules subject to change depending upon use of unique security type requiring special pricing or accounting arrangements.
Chief Compliance Officer Support Fee
■
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$ - per year
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Data Services
■
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$ - Listed Instruments and rates which may include but are not limited to: Domestic Equities, Options, ADRs, Foreign Equities, Futures, Forwards, Currency Rates, Total Return Swaps,
|
■
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$- Lower Tier Cost Fixed Income Instruments which may include but are not limited to: Domestic Corporate Governments and Agency Bonds, Mortgage Backed Securities, and Municipal Bonds
|
■
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$ - Higher Tier Cost Fixed Income Instruments which may include but are not limited to: CMOs and Asset Backed Securities, Money Market Instruments, Foreign Corporates, Governments and Agency Bonds, High Yield
|
■
|
$ - Bank Loans
|
■
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$ - Intraday money market funds pricing, up to 3 times per day
|
■
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$ - per Month Manual Security Pricing (>25per day)
|
1 This Exhibit A includes is a combined fee schedule that will cover all services provided by USBGFS to the Fund pursuant to the Fund
Administration Agreement and the Fund Accounting Agreement. For the avoidance of doubt, where services and fees appear in more than one agreement, they are reproduced only for convenience and will only be charged once to the extent the Fund
utilizes the associated services. For example, the Fund Administration and Fund Accounting Services fee schedule covers both services, but the associated fees will be paid only once.
17
■
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Derivative Instruments are generally charged at the following rates:
|
●
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$ - Interest Rate Swaps, Foreign Currency Swaps
|
●
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$ - Swaptions
|
●
|
$ - Credit Default Swaps
|
NOTE: Prices above are based on using U.S. Bank primary pricing service which may vary by security type and are subject to change. Use of alternative and/or additional sources may result in
additional fees. Pricing vendors may designate certain securities as hard to value or as a non-standard security type, such as CLOs and CDOs, which may result in additional fees.
Corporate Action and Factor Services (security paydown)
■
|
$ - per Foreign Equity Security per Month
|
■
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$ - per Domestic Equity Security per Month
|
■
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$ - per CMOs, Asset Backed, Mortgage Backed Security per Month
|
Third Party Administrative Data Charges (descriptive data for each security)
■
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$ - per security per month for fund administrative data (based upon U.S. Bancorp standard data services and are subject to change)
|
SEC Modernization Requirements
■
|
$ - per year, per Fund - Form N-PORT
|
■
|
$ - per year, per Fund - Form N-CEN
|
Miscellaneous Expenses
All other miscellaneous fees and expenses, including but not limited to the following, will be separately billed as incurred:
Fair Value Services, SWIFT processing, customized reporting, third-party data provider costs,(including Bloomberg, S&P, Moody's, Morningstar, GICS, MSCI, Lipper, etc.), postage, stationery,
programming, special reports, proxies, insurance, XXXXX/XBRL filing, tax e-filing, PFIC monitoring, wash sale reporting (Gainskeeper), retention of records, federal and state regulatory filing fees, expenses from Board of directors meetings, third
party auditing and legal expenses, and conversion expenses (if necessary).
Additional services not included above shall be mutually agreed upon at the time of the service being added. In addition to the fees described above, additional fees may be charged to the extent
that changes to applicable laws, rules or regulations require additional work or expenses related to services provided (e.g., compliance with new liquidity risk management and reporting requirements).
*Subject to annual CPI increase - All Urban Consumers - U.S. City Average" index, provided that the CPI adjustment will not decrease the base fees (even if the cumulative CPI
rate at any point in time is negative).
Fees are calculated pro rata and billed monthly.
18