AMENDMENT TO SUB-ADMINISTRATION AND ACCOUNTING AGREEMENT
Exhibit (k)(6)
EXECUTION COPY
AMENDMENT TO SUB-ADMINISTRATION AND ACCOUNTING AGREEMENT
This Amendment to the Sub-Administration and Accounting Agreement is made as of November 29, 2017 (the “Amendment”) by and between State Street Bank and Trust Company, a Massachusetts Trust Company (the “Sub-Administrator”) and NexPoint Advisors, L.P., a Delaware limited partnership (the “Administrator”). Capitalized terms used in this Amendment without definition shall have the respective meanings ascribed to such terms in the Agreement.
WHEREAS, the Sub-Administrator and the Administrator entered into a Master Administration Agreement dated as of January 7, 2013 (as amended, supplemented, restated or otherwise modified from time to time, the “Agreement”); and
WHEREAS, the parties hereto wish to amend the Agreement as set forth below.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree to amend the Agreement, pursuant to the terms thereof, as follows:
| 1. | The Agreement is hereby amended as follows: |
A. Section 5 is amended by amending and restating in their entirety paragraphs “a.” and “c.” as follows:
“a. Prepare for the review by designated officer(s) of the Fund financial information) that will be included in each Fund’s semi-annual and annual shareholder reports, and other quarterly reports (as mutually agreed upon), including tax footnote disclosures where applicable;”
“c. Prepare for the review by designated officer(s) of the Fund financial information required by Form N-1A, proxy statements and such other reports, forms or filings as may be mutually agreed upon;”
B. Section 5 is amended by inserting after the end of the subsection entitled “Fund Administration Tax Services” a new subsection as follows:
“Fund Administration Form N-PORT and Form N-CEN Support Services
x. The Sub-Administrator shall perform the Form N-Port and Form N-CEN Support Services as set forth in Schedule B6 to this Agreement.”
C. The third paragraph of Section 6 is hereby amended and restated as follows:
“The Administrator acknowledges and agrees that it or the Trust will bear all expenses that are incurred in the Trust’s operation and not specifically assumed by the Sub-Administrator. For the avoidance of doubt, Trust expenses not assumed by the
Sub-Administrator include, but are not limited to: organizational expenses; cost of services of independent accountants and outside legal and tax counsel (including such counsel’s review of the Registration Statement, Form N-CSR, Form N-PORT, Form N-PX, Form N-MFP, Form N-CEN, proxy materials, federal and state tax qualification as a regulated investment company and other notices, registrations, reports, filings and materials prepared by the Sub-Administrator under this Agreement); cost of any services contracted for by the Administrator or the Trust directly from parties other than the Sub-Administrator; cost of trading operations and brokerage fees, commissions and transfer taxes in connection with the purchase and sale of securities for the Trust; investment advisory fees; taxes, insurance premiums and other fees and expenses applicable to its operation; costs incidental to any meetings of shareholders including, but not limited to, legal and accounting fees, proxy filing fees and the costs of preparation (e.g., typesetting, XBRL-tagging, page changes and all other print vendor and XXXXX charges, collectively referred to herein as “Preparation”), printing, distribution and mailing of any proxy materials; costs incidental to Board meetings, including fees and expenses of Board members; the salary and expenses of any officer, director\trustee or employee of the Trust; costs of Preparation, printing, distribution and mailing, as applicable, of the Trust’s Registration Statements and any amendments and supplements thereto and shareholder reports; cost of Preparation and filing of the Trust’s tax returns, Form N-1A, Form N-CSR, Form N-PORT, Form N-PX, Form N-MFP and Form N-CEN, and all notices, registrations and amendments associated with applicable federal and state tax and securities laws; all applicable registration fees and filing fees required under federal and state securities laws; the cost of fidelity bond and D&O/E&O liability insurance; and the cost of independent pricing services used in computing the Trust’s net asset value.”
D. A new Schedule B6 and Annex I thereto are hereby added to the Agreement as set forth in Exhibit 1.
| 2. | Notwithstanding the provisions of Section 12 of the Agreement entitled “Effective Period and Termination”, the Administrator agrees to be bound to receive from the Sub-Administrator the Form N-PORT and Form N-CEN Support Services and the other services as described in Schedule B6 attached hereto for at least twelve (12) months, with such twelve month period starting on the first day of the first required filing month for Form N-PORT. The parties further agree that the foregoing commitment will be deemed the “term” for the Form N-PORT and Form N-CEN Support Services and that following the expiration of such term, the termination provisions of Section 12 will apply to the Form N-PORT and Form N-CEN services in the same way as such provisions apply to all other services under the Agreement. |
| 3. | Except as specifically amended hereby, all other terms and conditions of the Agreement shall remain in full force and effect. This Amendment, including Exhibit 1, is incorporated in its entirety into the Agreement, and this Amendment and said Agreement shall be read and interpreted together as the Agreement. |
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| 4. | This Amendment shall be construed and the provisions thereof interpreted under and in accordance with the laws of the State of New York, without regard to its conflicts of laws provisions. |
| 5. | This Amendment may be executed in separate counterparts, each of which shall be deemed to be an original, and all such counterparts taken together shall constitute one and the same instrument. Counterparts may be executed in either original or electronically transmitted form (e.g., faxes or emailed portable document format (PDF) form), and the parties hereby adopt as original any signatures received via electronically transmitted form. |
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their officers designated below as of the date first written above.
| NEXPOINT ADVISORS, L.P. | ||
| By: NexPoint Advisors GP, LLC, its general partner | ||
| By: | /s/ Xxxxx Xxxxxxxxxx | |
| Name: | Xxxxx Xxxxxxxxxx | |
| Title: | Treasurer, Principal Accounting Officer & Principal Financial Officer | |
| STATE STREET BANK AND TRUST COMPANY, as Sub-Administrator | ||
| By: | /s/ Xxxxxx Xxxxxxxx | |
| Name: | Xxxxxx Xxxxxxxx | |
| Title: | Executive Vice President | |
EXHIBIT 1
MASTER SUB-ADMINISTRATION AGREEMENT
Schedule B6
Fund Administration Form N-PORT (the “Form N-PORT Services”) and Form N-CEN (the “Form N-CEN Services”) Support Services (collectively, the “Form N-PORT and Form N-CEN Support Services”) and Quarterly Portfolio of Investments Services (collectively, with the Form N-PORT and Form N-CEN Support Services, and for purposes of this Schedule B6, the “Services”)
| (a) | Standard N-PORT and N-CEN Reporting Solution (Data and Filing): |
| • | Subject to the receipt of all required data, documentation, assumptions, information and assistance from the Administrator (including from any third parties with whom the Administrator will need to coordinate in order to produce such data, documentation, and information), the Sub-Administrator will use required data, documentation, assumptions, information and assistance from the Administrator, the Sub-Administrator’s internal systems and, in the case of Administrator not administered by the Sub-Administrator or its affiliates, third party Trust administrators or other data providers, including but not limited to Third Party Data (as defined below) (collectively, the “Required Data”) to perform necessary data aggregations (including any applicable aggregation of risk metrics) and calculations and prepare, as applicable: (i) a monthly draft Form N-PORT standard template for review and approval by the Administrator and (ii) annual updates of Form N-CEN for review and approval by the Administrator. |
| • | The Administrator acknowledges and agrees that it will be responsible for reviewing and approving each such draft N-PORT template and N-CEN update. |
| • | Following review and final approval by the Administrator of each such draft Form N-PORT template and N-CEN update, and at the direction of and on behalf of the Administrator, the Sub-Administrator will (i) produce an .XML formatted file of the completed Form N-PORT and Form N-CEN and (ii) electronically submit such filing to the SEC. |
The Form N-PORT Services will be provided with respect to each Fund of the Trust as set forth in the attached Annex 1, which shall be executed by the Sub-Administrator and the Administrator. The Form N-CEN Services will be provided with respect to the Trust and Funds as set forth in the attached Annex 1. Annex 1 may be updated from time to time upon the written request of the Administrator and by virtue of an updated Annex 1 that is signed by all parties.
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| (b) | Quarterly Portfolio of Investments Services |
| • | Subject to the receipt of all Required Data, and as a component of the Form N-PORT and Form N-CEN Support Services, the Sub-Administrator will use such Required Data from the Administrator, the Sub-Administrator’s internal systems and other data providers to prepare a draft portfolio of investments (the “Portfolio of Investments”), compliant with GAAP, as of the Trust’s first and third fiscal quarter-ends. |
| • | Following review and final approval by the Administrator of each such draft Portfolio of Investments, and at the direction of and on behalf of the Administrator, the Sub-Administrator will attach each Portfolio of Investments to the first and third fiscal quarter-end N-PORT filing that is submitted electronically to the SEC. |
| (c) | Liquidity Risk Measurement Services : [Not Applicable.] |
Administrator Duties, Representations and Covenants in Connection with (i) Form N-PORT and Form N-CEN Support Services and (ii) Quarterly Portfolio of Investments Services.
The provision of the Services to the Administrator by the Sub-Administrator is subject to the following terms and conditions:
1. The parties acknowledge and agree on the following matters:
The Services depend, directly or indirectly, on: (i) Required Data and (ii) information concerning the Trust or their affiliates or any Fund, pooled vehicle, security or other investment or portfolio regarding which the Trust or its affiliates provide services or is otherwise associated (“Trust Entities”) that is generated or aggregated by the Sub-Administrator or its affiliates in connection with services performed on such Trust’s behalf or otherwise prepared by the Sub-Administrator (“State Street Data,” together with Required Data and Third Party Data (as defined below), “Services-Related Data”). The Sub-Administrator’s obligations, responsibilities and liabilities with respect to any State Street Data used in connection with other services provided hereunder on behalf of any Trust shall be as provided in such respective other agreements between the Sub-Administrator or its affiliates and such Trust relating to such other services (e.g., administration and/or custody services, etc.) from which the State Street Data is derived or sourced (“Other Trust Agreements”). Nothing in this Agreement or any service schedule(s) shall limit or modify the Sub-Administrator’s or its affiliates’ obligations with respect to the Trust under the Other Trust Agreements.
In connection with the provision of the Form N-PORT and Form N-CEN Support Services, and Quarterly Portfolio of Investments Services by the Sub-Administrator, the Administrator
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acknowledges and agrees that it will be responsible for providing the Sub-Administrator with any information requested by the Sub-Administrator, including, but not limited to, the following:
(A) Arranging for the regular provision of all Required Data (including State Street Data, where applicable) and related information to the Sub-Administrator, in formats compatible with Sub-Administrator-provided data templates including, without limitation, Required Data and the information and assumptions required by the Sub-Administrator in connection with the Trust reporting profile and onboarding checklist, as it, or the information or assumptions required, may be revised at any time by the Sub-Administrator, in its discretion (collectively, the “Onboarding Checklist”) and such other forms and templates as may be used by the Sub-Administrator for such purposes from time to time, for all Trust and Funds with respect to which services are provided under this Agreement, including but not limited to those to be reported on Form N-PORT and Form N-CEN (as determined by the relevant Trust), including, without limitation, arranging for the provision of data from the Administrator, their affiliates, third party Sub-Administrators, prime brokers, custodians, and other relevant parties. If and to the extent that Required Data is already accessible to the Sub-Administrator (or any of its affiliates) in its capacity as Sub-Administrator to one or more Administrators, the Sub-Administrator and such Administrator will agree on the scope of the information to be extracted from the Sub-Administrator’s or any of its affiliate’s systems for purposes of the Sub-Administrator’s provision of Form N-PORT and Form N-CEN Support Services and Quarterly Portfolio of Investments Services, subject to the discretion of the Sub-Administrator, and the Sub-Administrator is hereby expressly authorized to use any such information as necessary in connection with providing the Services hereunder; and
(B) Providing all required information and assumptions not otherwise included in Trust data and assumptions provided pursuant to Section 1(A) above, including but not limited to the Required Data, as may be required in order for the Sub-Administrator to provide the Services.
The following are examples of certain types of information that the Administrator is likely to be required to provide pursuant to Sections 1(A) and 1(B) above, and the Administrator hereby acknowledges and understands that the following categories of information are merely illustrative examples, are by no means an exhaustive list of all such required information, and are subject to change as a result of any amendments to Form N-PORT and Form N-CEN:
| • | SEC filing classification of the Trust (i.e., small or large filer); |
| • | Identification of any data sourced from third parties; |
| • | Identification of any securities reported as Miscellaneous; and |
| • | Any Explanatory Notes included in N-PORT Section E. |
2. The Administrator acknowledges that it has provided to the Sub-Administrator all material assumptions used by the Administrator or that are expected to be used by the Administrator in connection with the completion of Form N-PORT and Form N-CEN and the provision of the Quarterly Portfolio of Investments Services, and that it has approved all material
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assumptions used by the Sub-Administrator in the provision of the Services prior to the first use of the Services. The Administrator will also be responsible for promptly notifying the Sub-Administrator of any changes in any such material assumptions previously notified to the Sub-Administrator by the Administrator or otherwise previously approved by any Administrator in connection with the Sub-Administrator’s provision of the Services. The Administrator acknowledges that the completion of Form N-PORT and Form N-CEN and the provision of the Quarterly Portfolio of Investments Services and the data required thereby, requires the use of material assumptions in connection with many different categories of information and data, and the use and/or reporting thereof, including, but not limited to the following:
| • | Investment classification of positions; |
| • | Assumptions necessary in converting data extracts; |
| • | General operational and process assumptions used by the Sub-Administrator in performing the Services; and |
| • | Assumptions specific with respect to the Trust or any Fund. |
The Administrator hereby acknowledges and understands that the foregoing categories of information that may involve the use of material assumptions are merely illustrative examples of certain subject matter areas in relation to which the Administrator (and/or the Sub-Administrator on its behalf in connection with the Services) may rely on various material assumptions, and are by no means an exhaustive list of all such subject matter areas.
3. The Administrator acknowledges and agrees on the following matters:
(A) The Administrator has independently reviewed the Services (including, without limitation, the assumptions, market data, securities prices, securities valuations, tests and calculations used in the Services), and the Administrator has determined that the Services are suitable for its purposes. None of the Sub-Administrator or its affiliates, nor their respective officers, directors, employees, representatives, agents or service providers (collectively, including the Sub-Administrator, “State Street Parties”) make any express or implied warranties or representations with respect to the Services or otherwise.
(B) The Administrator assumes full responsibility for complying with all securities, tax, commodities and other laws, rules and regulations applicable to it or the Trust or Funds. The Sub-Administrator is not providing, and the Services do not constitute, legal, tax, investment, or regulatory advice, or accounting or auditing services advice. Unless otherwise agreed to in writing by the parties to this Agreement, the Services are of general application and the Sub-Administrator is not providing any customization, guidance, or recommendations. Where the Trust uses Services to comply with any law, regulation, agreement, or other Trust obligation, the Sub-Administrator makes no representation that any Service complies with such law, regulation, agreement, or other obligation, and the Sub-Administrator has no obligation of compliance with respect thereto.
(C) The Administrator may use the Services and any reports, charts, graphs, data, analyses and other results generated by the Sub-Administrator in connection with the Services
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and provided by the Sub-Administrator to any Trust (“Materials”) (a) for the internal business purpose of the Trust relating to the applicable Service or (b) for submission to the U.S. Securities and Exchange Commission, as required, of a Form N-PORT template and a Form N-CEN update, including any Portfolio of Investments, if applicable. The Administrator may also redistribute the Materials, or an excerpted portion thereof, to its or the Trust’s investment managers, investment advisers, agents, clients, investors or participants, as applicable, that have a reasonable interest in the Materials in connection with their relationship with such Trust (each a “Permitted Person”); provided, however, (i) neither the Administrator nor any Trust may charge a fee, profit, or otherwise benefit from the redistribution of Materials to Permitted Persons, (ii) data provided by third party sources such as but not limited to market or index data (“Third Party Data”) contained in the Materials may not be redistributed other than Third Party Data that is embedded in the calculations presented in the Materials and not otherwise identifiable as Third Party Data, except to the extent the relevant Trust has separate license rights with respect to the use of such Third Party Data, or (iii) neither the Administrator nor any Trust may use the Services or Materials in any way to compete or enable any third party to compete with the Sub-Administrator. No Permitted Person shall have any further rights of use or redistribution with respect to, or any ownership rights in, the Materials or any excerpted portion thereof.
Except as expressly provided in this Section 3(C), the Administrator, the Trust, the Funds, any of their affiliates, or any of their respective officers, directors, employees, investment managers, investment advisers, agents or any other third party, including any client of, or investor or participant in the Trust or a Fund or any Permitted Persons (collectively, including the Trust, “Trust Parties”), may not directly or indirectly, sell, rent, lease, license or sublicense, transmit, transfer, distribute or redistribute, disclose display, or provide, or otherwise make available or permit access to, all or any part of the Services or the Materials (including any State Street Data or Third Party Data contained therein, except with respect to Third Party Data to the extent the Trust has separate license rights with respect to the use of such Third Party Data). Without limitation, Trust Parties shall not themselves nor permit any other person to in whole or in part (i) modify, enhance, create derivative works, reverse engineer, decompile, decompose or disassemble the Services or the Materials; (ii) make copies of the Services, the Materials or portions thereof; (iii) secure any source code used in the Services, or attempt to use any portions of the Services in any form other than machine readable object code; (iv) commercially exploit or otherwise use the Services or the Materials for the benefit of any third party in a service bureau or software-as-a-service environment (or similar structure), or otherwise use the Services or the Materials to perform services for any third party, including for, to, or with consultants and independent contractors; or (v) attempt any of the foregoing or otherwise use the Services or the Materials for any purpose other than as expressly authorized under this Agreement.
(D) The Administrator shall limit the access and use of the Services and the Materials by any Trust Parties to a need-to-know basis and, in connection with its obligations under this Agreement, the Administrator shall be responsible and liable for all acts and omissions of any Trust Parties.
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(E) The Services, the Materials and all confidential information of the Sub-Administrator (as confidential information is defined in the Agreement and other than Third Party Data and Required Data), are the sole property of the Sub-Administrator. Neither the Administrator nor any Trust has any rights or interests with respect to all or any part of the Services, the Materials or the Sub-Administrator’s confidential information, other than its use and redistribution rights expressly set forth in Section 3(C) herein. The Administrator, for itself and on behalf of the Trust, automatically and irrevocably assigns to the Sub-Administrator any right, title or interest that it has, or may be deemed to have, in the Services, the Materials or the Sub-Administrator’s confidential information, including, for the avoidance of doubt and without limitation, any Trust Party feedback, ideas, concepts, comments, suggestions, techniques or know-how shared with the Sub-Administrator (collectively, “Feedback”) and the State Street Parties shall be entitled to incorporate any Feedback in the Services or the Materials or to otherwise use such Feedback for its own commercial benefit without obligation to compensate the Administrator or any Trust.
(F) The Sub-Administrator may rely on Services-Related Data used in connection with the Services without independent verification. Services-Related Data used in the Services may not be available or may contain errors, and the Services may not be complete or accurate as a result.
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ANNEX I
HIGHLAND FUNDS I AND HIGHLAND FUNDS II
Further to the Amendment dated November 29, 2017, to the Master Administration Agreement dated as of January 7, 2013, between each management investment company made subject to the Agreement (as defined below) in accordance therewith (the “Administrator”) and State Street Bank and Trust Company (the “Sub-Administrator”), the Administrator and the Sub-Administrator mutually agree to update this Annex 1 by adding/removing Funds as applicable:
| Form N-PORT Services and Quarterly Portfolio of Investments Services |
Service Type | |
| NEXPOINT CREDIT STRATEGIES FUND NEXPOINT REAL ESTATE STRATEGIES FUND NEXPOINT DISCOUNT YIELD FUND NEXPOINT ENERGY AND MATERIALS OPPORTUNITIES FUND NEXPOINT OPPORTUNISTIC CREDIT FUND |
Standard N-PORT and N-CEN Reporting Solution (Data and Filing) and Quarterly Portfolio Investments Services | |
| Form N-CEN Services |
||
| NEXPOINT CREDIT STRATEGIES FUND NEXPOINT REAL ESTATE STRATEGIES FUND NEXPOINT DISCOUNT YIELD FUND NEXPOINT ENERGY AND MATERIALS OPPORTUNITIES FUND NEXPOINT OPPORTUNISTIC CREDIT FUND |
||
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IN WITNESS WHEREOF, the undersigned, by their authorized representatives, have executed this Annex 1 as of the last signature date set forth below.
| NEXPOINT ADVISORS L.P. | STATE STREET BANK AND TRUST TRUST | |||||||||||||
| By: NexPoint Advisors GP, LLC, its general partner | ||||||||||||||
| By: | /s/ Xxxxx Xxxxxxxxxx |
By: | /s/ Xxxxxx Xxxxxxxx | |||||||||||
| Name: | Xxxxx Xxxxxxxxxx | Name: | Xxxxxx Xxxxxxxx | |||||||||||
| Title: | Treasurer, Principal Accounting Officer & Principal Financial Officer | Title: | Executive Vice President | |||||||||||
| Address: | 000 Xxxxxxxx Xxxxx, Xxxxx 000 Xxxxxx, Xxxxx 00000 |
Address: | ||||||||||||
| Date: | Date: | |||||||||||||
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