INVESTMENT COMPANY REPORTING MODERNIZATION SERVICES AMENDMENT TO FUND ADMINISTRATION AND ACCOUNTING AGREEMENT
Exhibit (h)(1)(b)
INVESTMENT COMPANY REPORTING MODERNIZATION SERVICES
AMENDMENT TO
FUND ADMINISTRATION AND ACCOUNTING AGREEMENT
This Investment Company Reporting Modernization Services Amendment (the “Amendment”) is made as of June 14, 2018 by and between INDEXIQ ACTIVE ETF TRUST (the “Fund”) and THE BANK OF NEW YORK MELLON (“BNY Mellon”).
BACKGROUND:
| A. | WHEREAS, the Fund and BNY Mellon are parties to a Fund Administration and Accounting Agreement dated as of November 18, 2013, as amended (the “Agreement”); |
| B. | WHEREAS, this Amendment is an amendment to the Agreement and shall be applicable solely to the portfolios identified at Exhibit 1 hereto (the “Portfolios”); |
| C. | WHEREAS, the Fund desires that BNY Mellon provide the investment company reporting modernization services described in this Amendment; |
| D. | WHEREAS, capitalized terms used in this Amendment shall have the meanings set forth in the Agreement unless otherwise defined herein, and all forms and rules referenced herein are in reference to forms and rules promulgated under the Investment Company Act of 1940, as amended; and |
| E. | WHEREAS, the Fund and BNY Mellon desire to amend the Agreement with respect to the foregoing; |
TERMS:
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained, the parties hereto agree as follows:
| 1. | BNY Mellon shall provide the following services to the Fund for the Portfolios and the Agreement is hereby amended to include the following with the services described therein: |
| 1.1 | As selected by the Fund, BNY Mellon shall provide services following a full service operating model. This operating model requires BNY Mellon to include the actual filing of the reports as part of the services noted below. |
| 1.2 | FORM N-PORT. BNY Mellon, subject to the limitations described herein and its timely receipt of all necessary information related thereto, will, or will cause an affiliated or third party financial printer (“Print Vendor”), to: (i) collect, aggregate and normalize the data required for the submission of Form N-PORT; (ii) prepare, on a monthly basis, Form N-PORT; and (iii) timely file Form N-PORT with the United States Securities and Exchange Commission (“SEC”). |
| 1.2.1 | The timely receipt of necessary information referred to above will be determined by mutual agreement of BNY Mellon and the Fund in advance of the preparation of the initial Form N-PORT pursuant to this Amendment. |
| 1.2.2 | Unless mutually agreed in writing between BNY Mellon and the Fund, BNY Mellon will use the same layout and format for every successive reporting period for Form N-PORT. |
| 1.3 | FORM N-CEN. BNY Mellon, subject to the limitations described herein and its timely receipt of all necessary information related thereto, will, or will cause the Print Vendor to: (i) collect, aggregate and normalize the data required for the submission of Form N-CEN; (ii) prepare, on an annual basis, Form N-CEN; and (iii) timely file Form N-CEN with the SEC. |
| 1.3.1 | The timely receipt of necessary information referred to above will be determined by mutual agreement of BNY Mellon and the Fund in advance of the preparation of the initial Form N-CEN pursuant to this Amendment. |
| 1.3.2 | Unless mutually agreed in writing between BNY Mellon and the Fund, BNY Mellon will use the same source for obtaining the information and method for performing the required calculations for every successive reporting period for Form N-CEN. |
| 2. | Either party may terminate this Amendment by giving to the other party a notice in writing specifying the date of termination, which shall not be less than ninety (90) days after the date of such notice. |
| 3. | BNY Mellon shall not be responsible for: (a) delays in the transmission to it by the Fund, the Fund’s adviser and entities unaffiliated with BNY Mellon (collectively, for this Amendment, “Third Parties”) of data required for the preparation of reports described herein (“Third Party Data”), (b) delays, errors, inaccuracies or omissions of a Third Party in the provision of Third Party Data, and (c) validation of Third Party Data. This Section 3 is a limitation of responsibility provision for the benefit of BNY Mellon, and shall not be used to imply any responsibility or liability against BNY Mellon. |
| 4. | The Fund, in a timely manner, shall review and comment on, and, as the Fund deems necessary, cause its counsel and/or accountants to review and comment on, each report described herein. The Fund shall provide timely sign-off of, and authorization and direction to file, each such report. Absent such timely sign-off, authorization and direction by the Fund, BNY Mellon shall be excused from its obligations to prepare and file the affected report. BNY Mellon is providing the services related to the filing of such reports based on the acknowledgement of the Fund that such services, together with the activities of the Fund in accordance with its internal policies, procedures and controls, shall together satisfy the requirements of the applicable rules and regulations for each such report. |
| 5. | Should the Agreement be terminated for any reason, the Fund shall be responsible for the retention of the filed reports described herein in accordance with any applicable rule or regulation. |
| 6. | Notwithstanding any provision of this Amendment, the services described herein are not, nor shall they be construed as constituting, legal advice or the provision of legal services for or on behalf of the Fund or any other person. Neither this Amendment nor the provision of the services establishes or is intended to establish an attorney-client relationship between BNY Mellon and the Fund or any other person. |
| 7. | As compensation for the services described herein, the Fund will pay to BNY Mellon such fees as may be agreed to in writing by the Fund and BNY Mellon. In turn, BNY Mellon will be responsible for paying any Print Vendor’s fees for services relating to the preparation and filing of Form N-PORT and Form N-CEN. For the avoidance of doubt, the fees charged by any Print Vendor will not equal the fees charged by BNY Mellon, nor shall such fees be considered an out-of-pocket expense, BNY Mellon anticipates that the fees it charges hereunder will be more than the fees charged to it by any Print Vendor. |
| 8. | Miscellaneous. |
| (a) | As hereby amended and supplemented, the Agreement shall remain in full force and effect. In the event of a conflict between the terms of this Amendment and the terms of the Agreement, the terms of this Amendment shall control with respect to the services described herein. |
| (b) | This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The facsimile signature of any party to this Amendment shall constitute the valid and binding execution hereof by such party. |
| (c) | If any provision or provisions of this Amendment shall be held to be invalid, unlawful or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. |
(Signature page follows.)
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized officers designated below on the date and year first above written.
| INDEXIQ ACTIVE ETF TRUST | ||
| By: | /s/ Xxxx X. Xxxxxxx | |
| Name: | Xxxx X. Xxxxxxx | |
| Title: | President | |
| THE BANK OF NEW YORK MELLON | ||
| By: | /s/ Xxxxxx Xxxxxxx | |
| Name: | Xxxxxx Xxxxxxx | |
| Title: | Vice President | |
EXHIBIT 1
| Portfolio Name | ID, Cusip or Ticker Symbol |
| IQ MacKay Xxxxxxx Municipal Insured ETF | MMIN | 00000X000 | 00-0000000 |
| IQ MacKay Xxxxxxx Municipal Intermediate ETF | MMIT | 00000X000 | 00-0000000 |
