AMENDED AND RESTATED FUND ADMINISTRATION SERVICING AGREEMENT
AMENDED AND RESTATED
THIS AMENDED AND RESTATED FUND ADMINISTRATION SERVICING AGREEMENT (this “Agreement”) is made and entered into as of the 29th day of June, 2018, by and between TRIMTABS ETF TRUST, a Delaware statutory trust (the “Trust”) and U.S. BANCORP FUND SERVICES, LLC, a Wisconsin limited liability company (“Fund Services”).
WHEREAS, the parties hereto entered into that certain Fund Administration Servicing Agreement dated September 27, 2016 (the “Prior Agreement”) and desire to amend and restate the Prior Agreement in its entirety as set forth herein;
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 is authorized to issue shares of beneficial interest in separate series, with each such series representing interests in a separate portfolio of securities and other assets;
WHEREAS, Fund Services is, among other things, in the business of providing fund administration services for the benefit of its customers; and
WHEREAS, the Trust desires to retain Fund Services to provide fund administration services to each series of the Trust listed on Exhibit A attached hereto (as may be amended from time to time) (each series listed in Exhibit A, together with all other series subsequently established by the Trust and made subject to this Agreement, are each referred to as a “Fund” and collectively, the “Funds”).
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. Appointment of Fund Services as Fund Administrator
The Trust hereby appoints Fund Services as fund administrator for each Fund for the term of this Agreement to perform the services and duties described herein. Fund Services hereby accepts such appointment and agrees to perform the services and duties set forth in this Agreement. The services and duties of Fund Services shall be confined to those matters expressly set forth herein, and no implied duties are assumed by or may be asserted against Fund Services hereunder.
2. Services and Duties of Fund Services
Fund Services shall provide the following administration services to a Fund:
A. General Fund Management:
(1) Act as liaison among Fund service providers, including but not limited to the investment adviser, any sub-adviser, transfer agent, fund accountant, custodian, listing exchange, authorized participants, external legal counsel, accounting and audit firms and external compliance consultants.
(2) Supply:
a. Office facilities (which may be in a Fund Services office or in an affiliate’s office).
b. Non-investment-related statistical and research data as requested.
(3). Coordinate the Trust’s board of trustees’ (the “Board of Trustees” or the “Trustees”) and each Board committee’s (“Committee”) communications, such as:
a.Prepare meeting agendas and resolutions, with the assistance of Fund counsel and, if any, investment adviser in-house counsel.
b.Prepare reports for the Board of Trustees based on financial and administrative data as requested by the Board or the investment adviser.
c.Coordinate the Board and Committee book production and distribution processes.
d.Assist to gather and coordinate materials related to annual investment advisory and other contract renewals and approval of Rule 12b-1 plans, if any.
e.Assist with the implementation of the independent auditor.
f.Secure and monitor fidelity bond and trustee and officer liability coverage, and make the necessary Securities and Exchange Commission (“SEC”) filings relating thereto.
g.Prepare minutes of meetings of the Board of Trustees and Committees.
h.Recommend dividend declarations to the Board of Trustees and prepare and distribute to appropriate parties notices announcing declaration of dividends and other distributions to shareholders.
i.Attend Board of Trustees and Committee meetings, take minutes, and make presentations at Board and Committee meetings where appropriate or upon reasonable request.
j.Prepare and mail annually, or more frequently as appropriate, a Trustees’ and Officers’ questionnaire to each of the Trustees and officers of the Trust.
(4)Audits:
a.For the annual Fund audit, prepare appropriate schedules and materials. Provide requested information to the independent auditors and facilitate the audit process.
b.For SEC, FINRA or other regulatory audits, provide requested information directly or indirectly to the SEC or other regulatory agencies and facilitate the audit process.
c.For all audits, provide office facilities, as needed.
(5)Assist with overall operations of the Fund.
(6)Pay Fund expenses upon written authorization from the Trust.
(7)Maintain required books and records for each Fund relating to the services performed under this Agreement, including without limitation, maintaining files of registration statements, Trust contracts, Trust governing documents, including its charter and by-laws, Trust minute books and copies of the Trust’s compliance and corporate governance policies and procedures, as may be amended from time to time, that are prepared by Fund Services or furnished to Fund Services by the Trust, as required by the rules of SEC and the securities exchange on which any shares of the Funds are listed, as they may be amended from time to time.
(8)Monitor arrangements under shareholder services or similar plan, if any.
(9)Assist in developing policies, guidelines and procedures relating to Trust operations and compliance.
(10)Maintain general Board calendars and compliance/regulatory filings calendars.
(11)Manage the preparation for and conducting of the Trust’s shareholder meetings and prepare minutes of such meetings.
B.Compliance:
(1)Regulatory Compliance:
a.Monitor compliance with the 1940 Act requirements, including:
(i)Asset and diversification tests.
(ii)Total return and SEC yield calculations.
(iii)Maintenance of books and records under Rule 31a-3.
(iv)Code of ethics requirements under Rule 17j-1 for the disinterested Trustees.
b.Monitor each Fund’s compliance with the policies and investment limitations as set forth in its prospectus (the “Prospectus”) and statement of additional information (the “SAI”).
c.Provide quarterly compliance reporting to the designated officer(s) of the Trust and prepare Board compliance materials.
d.Perform its duties hereunder in compliance with all applicable laws and regulations and provide any sub-certifications reasonably requested by the Trust in connection with (i) any certification required of the Trust pursuant to the Xxxxxxxx-Xxxxx Act of 2002 (the “SOX Act”) or any rules or regulations promulgated by the SEC thereunder, and (ii) the operation of Fund Services’ compliance program as it relates to the Trust, provided the same
shall not be deemed to change Fund Services’ standard of care as set forth herein.
e.Monitor applicable regulatory and operational service issues, including exchange listing requirements, and update Board of Trustees periodically.
f.Monitor compliance with regulatory exemptive relief (as applicable) for ETFs.
(2)SEC Registration and Reporting:
a.Prepare the annual update to the Trust’s Registration Statement and coordinate with Fund counsel for review.
b.Prepare, including coordinating review by all relevant parties, and file annual and semi-annual shareholder reports, Form N‑SAR, Form N-CSR, Form N-Q filings, Form N-PX filings, Rule 24f-2 notices and such other similar and successor reports, forms or filings as may be mutually agreed upon.
c.Coordinate the printing, filing and mailing of Prospectuses and shareholder reports, and amendments and supplements thereto.
d.File fidelity bond under Rule 17g-1.
e.Monitor sales of Fund shares and ensure that such shares are properly registered or qualified, as applicable, with the SEC, and all state authorities.
f.Assist Fund counsel in preparation of proxy statements and information statements and coordinate the printing, filing and mailing of such documents as requested by the Trust.
g.Assist Fund counsel with application for exemptive relief, when requested.
1.IRS Compliance:
a.Monitor the Trust’s status as a regulated investment company under Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”), including without limitation, review of the following:
i.Diversification requirements.
ii.Qualifying income requirements.
iii.Distribution requirements.
b.Calculate the required annual excise distribution amounts for the review and approval of Trust management and/or its independent accountant.
C.Financial Reporting:
(1)Provide financial data required by the Prospectus and SAI and updates thereto, semi-annual and annual shareholder reports, quarterly data or fact reports, proxy statements, and other reports as may be required to be filed.
(2)Prepare financial reports for officers, shareholders, tax authorities, performance reporting companies, the Board of Trustees, the SEC, and the independent auditor.
(3)Supervise the Fund’s custodian and fund accountants in the maintenance of the Fund’s general ledger and in the preparation of the Fund’s financial
statements, including oversight of expense accruals and payments, the determination of net asset value and the declaration and payment of dividends and other distributions to shareholders.
(4)Compute the yield (if applicable), total return (including pre- and post-tax average annual total returns), expense ratio, portfolio average dollar-weighted maturity (if applicable), portfolio turnover rate of each Fund and other financial data required by the SEC to be reported. Provide returns of appropriate broad-based securities market indices for the same periods as the Funds.
(5)Monitor expense accruals and make adjustments as necessary; notify the Trust management of adjustments expected to materially affect the Fund’s expense ratio.
(6)Review calculations of fees paid to the Trust’s investment adviser, custodian, fund accountant, distributor and transfer agent.
(7)Prepare financial statements, which include, without limitation, the following items:
a.Schedule of Investments.
b.Statement of Assets and Liabilities.
c.Statement of Operations.
d.Statement of Changes in Net Assets.
e.Statement of Cash Flows (if applicable).
f.Financial Highlights.
(8)Pursuant to Rule 31a-1(b)(9) of the 1940 Act, prepare quarterly broker security transaction summaries.
(9)Prepare and disseminate vendor survey information.
(10)Report performance and other portfolio information to outside reporting agencies as directed by the Fund and assist in resolution of errors reported by such outside reporting agencies.
D.Tax Reporting:
(1)Prepare, for review by the independent accountant and/or Trust management, the federal and state tax returns, including, without limitation, Form 1120 RIC and applicable state returns, including any necessary schedules. Fund Services will prepare annual Fund federal and state income tax return filings (or extensions thereto) as authorized by and based on the instructions received by Trust management and/or the independent accountant.
(2)Provide Trust management and the independent accountant with tax reporting information pertaining to the Fund and available to Fund Services as required in a timely manner.
(3)Prepare Fund financial statement tax footnote disclosures for the review and approval of Trust management and/or the independent accountant.
(4)Prepare annual shareholder reporting information relating to Form 1099-DIV and any supplemental tax letters.
(5)Prepare and file on behalf of Trust management Form 1099 MISC Forms for payments to disinterested Trustees and other qualifying service providers.
(6)Monitor wash sales losses.
(7)Calculate Qualified Dividend Income (“QDI”) for qualifying Fund Shareholders.
(8)Calculate Dividends Received Deduction (“DRD”) for qualifying corporate Fund Shareholders.
(9)Participate in discussions of potential tax issues with Trust management and the independent accountant.
E.Uncertain Tax Provisions:
(1)Document all material tax positions taken by a Fund with respect to specified fiscal years and identified to Fund Services (“Tax Positions”).
(2)Determine whether or not Tax Positions have been consistently applied, and document any inconsistencies.
(3)Review relevant statutory authorities and standard industry practices, to the extent such practices are known to, or may reasonably be determined by, Fund Services.
(4)Review tax opinions and legal memoranda prepared by tax counsel or tax auditors to a Fund.
3.Compensation
Fund Services shall be compensated for providing the services set forth in this Agreement in accordance with the fee schedule set forth on Exhibit C attached hereto (as amended from time to time by written consent of the parties to this Agreement). Fund Services shall also be reimbursed for such miscellaneous expenses (e.g., telecommunication charges, postage and delivery charges, and reproduction charges) as are reasonably incurred by Fund Services in performing its duties hereunder. The Trust shall pay all such fees and reimbursable expenses within thirty (30) calendar days following receipt of the monthly billing notice, except for any fee or expense subject to a good faith dispute. The Trust shall notify Fund Services in writing within thirty (30) calendar days following receipt of each invoice if the Trust is disputing any amounts in good faith. The Trust shall pay such disputed amounts within ten (10) calendar days of the day on which the parties agree to the amount to be paid, if any. Notwithstanding anything to the contrary, amounts owed by the Trust to Fund Services shall only be paid out of the assets and property of the particular Fund involved.
4.License of Data; Warranty; Termination of Rights
A.Fund Services has entered into agreements with MSCI index data services (“MSCI”), Standard & Poor Financial Services LLC (“S&P”) and FactSet Research Systems, Inc. (“FACTSET”) which obligates Fund Services to include a list of required provisions in this Agreement attached hereto as Exhibit B. The index data services being provided to the Trust by Fund Services pursuant hereto (collectively, the “Data”) are being licensed, not sold, to the Trust. The provisions in Exhibit B shall not have any effect upon the standard of care and liability Fund Services has set forth in Section 6 of this Agreement.
B. The Trust agrees to indemnify and hold harmless Fund Services, its information providers, and any other third party involved in or related to the making or
compiling of the Data, their affiliates and subsidiaries and their respective directors, officers, employees and agents from and against any claims, losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees and costs, as incurred, arising in and any manner out of the Trust’s or any third party’s use of, or inability to use, the Data or any breach by the Trust of any provision contained in this Agreement regarding the Data. The immediately preceding sentence shall not have any effect upon the standard of care and liability of Fund Services as set forth in Section 6 of this Agreement.
5.Representations and Warranties
A.The Trust hereby represents and warrants to Fund Services, which representations and warranties shall be deemed to be continuing throughout the term of this Agreement, that:
(1)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;
(2)This Agreement has been duly authorized, executed and delivered by the Trust in accordance with all requisite action and constitutes a valid and legally binding obligation of the Trust, 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
(3)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.
B.Fund Services hereby represents and warrants to the Trust, which representations and warranties shall be deemed to be continuing throughout the term of this Agreement, that:
(1)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;
(2)This Agreement has been duly authorized, executed and delivered by Fund Services in accordance with all requisite action and constitutes a valid and legally binding obligation of Fund Services, 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
(3)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.
6.Standard of Care; Indemnification; Limitation of Liability
A.Fund Services shall at all times act in good faith and exercise reasonable care and due diligence in the performance of its duties under this Agreement. Fund Services shall not be liable for any error of judgment or mistake of law or for any loss suffered by the Trust in connection with its duties under this Agreement, including losses resulting from mechanical breakdowns or the failure of communication or power supplies beyond Fund Services’ control, except a loss arising out of or relating to Fund Services’ refusal or failure to comply with the terms of this Agreement or from its bad faith, negligence, or willful misconduct in the performance of its duties under this Agreement.
The Trust shall indemnify and hold harmless Fund Services from and against any and all claims, demands, losses, expenses, and liabilities of any and every nature (including reasonable attorneys’ fees and costs) that Fund Services may sustain or incur or that may be asserted against Fund Services by any person arising out or related to of any action taken or omitted to be taken by it in performing the services hereunder (i) in accordance with the foregoing standards, (ii) in reliance upon any written or oral instruction provided to Fund Services by any duly authorized officer of the Trust, as approved by the Board of Trustees of the Trust, or (iii) the Data, or any information, service, report, analysis or publication derived therefrom, provided that Fund Services shall not be indemnified nor held harmless from and against any such claims, demands, losses, expenses, and liabilities arising out of or relating to Fund Services’ refusal or failure to comply with the terms of this Agreement 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 Trust, its successors and assigns, notwithstanding the termination of this Agreement. As used in this paragraph, the term “Fund Services” shall include Fund Services’ directors, officers and employees.
The Trust acknowledges that the Data are intended for use as an aid to institutional investors, registered brokers or professionals of similar sophistication in making informed judgments concerning securities. The Trust 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.
Fund Services shall indemnify and hold harmless the Trust from and against any and all claims, demands, losses, expenses, and liabilities of any and every nature (including reasonable attorneys’ fees and costs) that the Trust may sustain or incur or that may be asserted against the Trust by any person arising out of or related to any action taken or omitted to be taken by Fund Services as a result of Fund Services’ refusal or failure to comply with the terms of this Agreement 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 Fund Services, its successors and assigns, notwithstanding the termination of this Agreement. As used in this paragraph, the term “Trust” shall include the Trust’s trustees, officers and employees.
Neither party to this Agreement shall be liable to the other party for consequential, special or punitive damages under any provision of this Agreement.
In the event of a mechanical breakdown or failure of communication or power supplies beyond its reasonable control, Fund Services shall take all reasonable steps to minimize service interruptions for any period that such interruption continues. Fund Services shall as promptly as possible under the circumstances notify the Trust in the event of any service interruption that materially impacts Fund Services’ services under this Agreement. Fund Services 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 Fund Services as soon as practicable. Fund Services agrees that it shall, at all times, have reasonable business continuity 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 Trust shall be entitled to inspect Fund Services’ premises and operating capabilities, and the books and records maintained on behalf of the Trust, at any time during regular business hours of Fund Services, upon reasonable notice to Fund Services. Moreover, Fund Services shall provide the Trust, at such times as the Trust may reasonably require, among other things, summaries of reports rendered by independent accountants on the internal controls and procedures of Fund Services relating to the services provided by Fund Services under this Agreement, which at a minimum allow the Funds’ CCO to fulfill their Rule 38a-1 obligations (e.g., BCPs, SPOs, and control review reports or summaries are typically provided).
Notwithstanding the above, Fund Services reserves the right to reprocess and correct administrative errors at its own expense. Fund Services shall promptly notify the Trust upon discovery of any material administrative error, and shall consult with the Trust about the actions it intends to take to correct the error prior to taking such actions. A “material administrative error” means any error which the Trust’s management, including its Chief Compliance Officer, would reasonably need to know to oversee Trust compliance, which involves, without limitation: (i) a violation of the federal securities laws by Fund Services, its officers, directors and employees, or a violation of the federal securities laws by Fund Services’ agents of which Fund Services is aware; (ii) a violation of the Trust’s or Fund Services’ policies and procedures in connection with Fund Services’ services to the Trust; or (iii) a weakness in the design or implementation of Fund Services’ policies and procedures in connection with Fund Services’ services to the Trust.
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 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 in any case in which the indemnitor will be asked to indemnify the indemnitee except with the indemnitor’s prior written consent, which consent shall not be unreasonably withheld.
B.The indemnity and defense provisions set forth in this Section 6 shall indefinitely survive the termination and/or assignment of this Agreement.
C.If Fund Services is acting in another capacity for the Trust pursuant to a separate agreement, nothing herein shall be deemed to relieve Fund Services of any of its obligations in such other capacity.
D.In conjunction with the tax-related services provided to each Fund by Fund Services hereunder, Fund Services shall not be deemed to act as an income tax return preparer for any purpose including as such term is defined under Section 7701(a)(36) of the Internal Revenue Code (“IRC”), or any successor thereof. Any information provided by Fund Services to a Fund for income tax reporting purposes with respect to any item of income, gain, loss, or credit will be performed solely in Fund Services’ administrative capacity. Fund Services shall not be required to determine, and shall not take any position with respect to whether, the reasonable belief standard described in Section 6694 of the IRC has been satisfied with respect to any income tax item. Each Fund, and any appointees thereof, shall have the right to inspect the transaction summaries produced and aggregated by Fund Services, and any supporting documents thereto, in connection with the tax services provided to each Fund by Fund Services. Fund Services shall not be liable for the provision or omission of any tax advice with respect to any information provided by Fund Services to a Fund. The tax information provided by Fund Services shall be pertinent to the data and information made available to Fund Services, and is neither derived from nor construed as tax advice.
7.Data Necessary to Perform Services
The Trust or its agent shall furnish to Fund Services the data necessary to perform the services described herein at such times and in such form as mutually agreed upon.
8.Proprietary and Confidential Information
Fund Services agrees on behalf of itself and its directors, officers, and employees to treat confidentially and as proprietary information of the Trust, all records and other information relative to the Trust and prior, present, or potential shareholders of the Trust (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, if necessary, under Regulation S-P from Fund shareholders and/or in writing by the Trust, which approval by the Trust shall not be unreasonably withheld and may not be withheld where Fund Services may be exposed to civil or criminal contempt proceedings for failure to comply, (ii) when requested to divulge such information by duly constituted authorities with jurisdiction over the Trust, provided that Fund Services will, to the extent permitted by law, provide the Trust with prior notice of such disclosure , or (iii) when so requested by the Trust. Records and other information which have become known to the public through no wrongful act of Fund Services or any of its employees, agents or representatives, and information that was already in the possession of Fund Services prior to receipt thereof from the Trust or its agent, shall not be subject to this paragraph.
Further, Fund Services will adhere to the privacy policies adopted by the Trust pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from time to time. In this regard, Fund Services 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 Trust and its shareholders, including to the extent required by applicable law, rule and regulation and shall maintain a program to assess such safeguards and implement appropriate changes in light of increasing threats to information and cybersecurity.
9.Records
Fund Services 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 Trust, but not inconsistent with the rules and regulations of appropriate government authorities, in particular, Section 31 of the 1940 Act and the rules thereunder. Fund Services agrees that all such records prepared or maintained by Fund Services relating to the services to be performed by Fund Services hereunder are the property of the Trust and will be preserved, maintained, and made available in accordance with such applicable sections and rules of the 1940 Act and will be promptly made available for inspection or surrendered to the Trust or its designee on and in accordance with its request.
10.Compliance with Laws
The Trust 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 a Fund relating to its portfolio
investments as set forth in its Prospectus and SAI. Fund Services’ services hereunder shall not relieve the Trust of its responsibilities for assuring such compliance or the Board of Trustees’ oversight responsibility with respect thereto. However, Fund Services retains primary responsibility for all compliance matters relating to the services that it has contractually agreed to provide to the Funds and the foregoing shall not affect Fund Services’ responsibilities for compliance and related matters delegated to Fund Services by the Trust as expressly provided in this Agreement, including, but not limited to, Section 2 herein.
Fund Services represents, warrants, and agrees that it shall identify the impact of changes in regulatory requirements on its ability to deliver the services and perform its obligations under the Agreement. Fund Services shall work with the Trust to identify the impact of changes in such Fund Services regulatory requirements on how the Trust uses the services or on how Fund Services delivers the services. The Trust and Fund Services shall promptly make any resulting modifications to the services as reasonably necessary as a result of changes in such regulatory requirements. Fund Services shall comply with changes to all such regulatory requirements and shall implement any necessary modifications to the services prior to the deadline imposed, or extensions authorized by, the regulatory or other governmental body having jurisdiction for such Fund Services regulatory requirements. All additional costs not contemplated by this Agreement associated with identification and compliance with Fund Services regulatory requirements shall be borne by Fund Services.
11.Term of Agreement; Amendment
A.The Prior Agreement became effective as of September 27, 2016 (the “Effective Date”) and will continue in effect for a period of three (3) years (the “Initial Term”). This Agreement does not affect such Initial Term. This Agreement may be terminated by either party upon giving ninety (90) days prior written notice to the other party or such shorter period as is mutually agreed upon by the parties. Subsequent to the end of the Initial Term, this Agreement continues until one party gives ninety (90) days prior written notice to the other party or such shorter period as is mutually agreed upon by the parties.
B.Notwithstanding the foregoing, 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 fifteen (15) days of notice of such breach to the breaching party. This Agreement may not be amended or modified in any manner except by written agreement executed by Fund Services and the Trust, and authorized or approved by the Board of Trustees.
C.The Trust may terminate this Agreement with thirty (30) days prior written notice to Fund Services without penalty in the event that a regulatory body, including a self-regulatory body (i.e. FINRA, SEC) determines that the services provided under the Agreement do not comply with the laws, rules, regulations, findings or guidelines of such regulatory or self-regulatory body (“Regulatory Issue”) and Fund Services determines that it cannot make modifications or enhancements to the applicable services within a commercially reasonable period to resolve any such Regulatory Issue. The Trust may provide Fund Services with all written documentation from any such regulatory or self-regulatory body related to any such determination along with the termination notice. If the Trust terminates this
Agreement based on a Regulatory Issue, notwithstanding anything to the contrary in the Agreement, the Trust will not be responsible for any payments under Section 12 of this Agreement.
D.Either party may terminate this Agreement immediately upon written notice to the other party following the occurrence of any of the following (in which case the Trust shall not be obligated to pay an early termination fee under Section 12 of this Agreement): (i) the other party being declared bankrupt, entering into a composition with creditors, obtaining a suspension of payment, being put under court controlled management or being the subject of a similar measure; or (ii) the relevant federal or state authority withdrawing its authorization of either party.
12.Early Termination
Except in the case of a termination by the Trust for Fund Services’ material breach of this Agreement (Section 11(B)), or termination because of a Regulatory Issue (Section 11(C)), or the Trust’s termination pursuant to Section 11(D), should the Trust elect to terminate this Agreement prior to the end of the Initial Term, the Trust agrees to pay the following fees:
a.the minimum monthly fee multiplied by the number of months remaining during the period between the specified termination date and the third anniversary of the Effective Date. The minimum monthly fee will be prorated for any period less than one month;
b.all fees associated with converting services to a successor service provider;
c.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; and
d.all reasonable and documented miscellaneous costs associated with a-c above.
No payment will be required pursuant to this Section in the event of any transaction consisting of (a) the liquidation or dissolution of a Fund or the Trust and distribution of the Fund’s or Trust’s assets, (b) a merger of a Fund or the Trust into, or the consolidation of a Fund or the Trust with, another organization or series, or (c) the sale by a Fund or the Trust of all or substantially all of its assets to another organization or series and, in the case of a transaction referred to in the foregoing clause (b) or (c) Fund Services is retained to continue providing services to the Fund or the Trust (or its respective successor) on substantially the same terms as this Agreement.
13.Duties in the Event of Termination
In the event that, in connection with the termination of this Agreement, a successor to any of Fund Services’ duties or responsibilities hereunder is designated by the Trust by written notice to Fund Services, Fund Services will promptly, upon such termination and, except in the case of a material breach by Fund Services, in which case all expenses shall be borne by the Fund Services, at the expense of the Trust, transfer to such successor all relevant books, records, correspondence, and other data established or maintained by Fund Services under this Agreement
in a form reasonably acceptable to the Trust (if such form differs from the form in which Fund Services has maintained the same, the Trust shall pay any 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 Fund Services’ 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 Trust.
14.Assignment
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 Trust without the written consent of Fund Services, or by Fund Services without the written consent of the Trust accompanied by the authorization or approval of the Trust’s Board of Trustees.
15.Governing Law
This Agreement shall be 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.
16.No Agency Relationship
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.
17.Services Not Exclusive
Nothing in this Agreement shall limit or restrict Fund Services from providing services to other parties that are similar or identical to some or all of the services provided hereunder.
18.Invalidity
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.
19.Legal-Related Services
Nothing in this Agreement shall be deemed to appoint Fund Services and its officers, directors and employees as a Fund’s attorneys, form attorney-client relationships or require the
provision of legal advice. The Trust acknowledges that in-house Fund Services attorneys exclusively represent Fund Services and rely on outside Fund counsel to review all services provided by in-house Fund Services attorneys and to provide independent judgment on Funds’ behalf. Because no attorney-client relationship exists between in-house Fund Services attorneys and a Fund, any information provided to Fund Services attorneys may not be privileged and may be subject to compulsory disclosure under certain circumstances. Fund Services represents that it will maintain the confidentiality of information disclosed to its in-house attorneys on a best efforts basis.
Fund Services may consult with Fund counsel or (with such Fund’s consent) its own counsel, and shall be fully protected with respect to anything done or omitted by it in good faith in accordance with the advice or opinion of such counsel. Any such consultations will remain subject to privilege, as appropriate.
20.Notices
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 Fund Services shall be sent to:
U.S. Bancorp Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: President
and notice to the Trust shall be sent to:
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Chief Compliance Officer
21.Multiple Originals
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.
22.Trust Limitations
This Agreement is executed by the Trust with respect to each Fund and the obligations hereunder are not binding on any of the trustees, officers or shareholders of the Trust individually, but are binding only on the Fund to which such obligations pertain and the assets
and property of such Fund. All obligations of the Trust under this Agreement shall apply only on a Fund-by-Fund basis, and the assets of one Fund shall not be liable for the obligations of another Fund.
23.Insurance
Fund Services shall at all times during the term of this Agreement maintain, at its cost, insurance coverage regarding its business in such amount and scope as it deems adequate in connection with the services provided by Fund Services under this Agreement. Upon the Trust’s reasonable request, Fund Services shall furnish to the Trust a summary of the applicable insurance coverage, including with respect to cybersecurity breaches.
[SIGNATURES ON THE FOLLOWING PAGE]
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 date first above written.
By: /s/ Xxxxxxx Lazar Name: Xxxxxxx Lazar Title: Chief Compliance Officer, Anti-Money Laundering Officer, and Principal Financial Officer | U.S. BANCORP FUND SERVICES, LLC By: /s/ Xxxxx X. Zagrodnik Name: Xxxxx X. Zagrodnik Title: Senior Vice President | ||||
Exhibit A to the Fund Administration Servicing Agreement
Fund Names
Separate Series of TrimTabs ETF Trust
| Name of Series | |||||
| TrimTabs All Cap U.S. Free-Cash-Flow ETF TrimTabs All Cap International Free-Cash-Flow ETF | |||||
Exhibit B to the Fund Administration Servicing Agreement – TrimTabs ETF Trust
REQUIRED PROVISIONS OF MSCI, S&P and FACTSET
•The Trust shall represent that it will use the Data solely for internal purposes and will not redistribute the Data in any form or manner to any third party.
•The Trust shall represent that it will not use or permit anyone else to use the Data in connection with creating, managing, advising, writing, trading, marketing or promoting any securities or financial instruments or products, including, but not limited to, funds, synthetic or derivative securities (e.g., options, warrants, swaps, and futures), whether listed on an exchange or traded over the counter or on a private-placement basis or otherwise or to create any indices (custom or otherwise).
•The Trust shall represent that it will treat the Data as proprietary to MSCI, S&P and FACTSET. Further, the Trust shall acknowledge that MSCI, S&P and FACTSET are the sole and exclusive owners of the Data and all trade secrets, copyrights, trademarks and other intellectual property rights in or to the Data.
•The Trust shall represent that it will not (i) copy any component of the Data, (ii) alter, modify or adapt any component of the Data, including, but not limited to, translating, decompiling, disassembling, reverse engineering or creating derivative works, or (iii) make any component of the Data available to any other person or organization (including, without limitation, the Trust’s present and future parents, subsidiaries or affiliates) directly or indirectly, for any of the foregoing or for any other use, including, without limitation, by loan, rental, service bureau, external time sharing or similar arrangement.
•The Trust shall be obligated to reproduce on all permitted copies of the Data all copyright, proprietary rights and restrictive legends appearing on the Data.
•The Trust shall acknowledge that it assumes the entire risk of using the Data and shall agree to hold MSCI or S&P or FACTSET harmless from any claims that may arise in connection with any use of the Data by the Trust.
•The Trust shall acknowledge that MSCI or S&P or FACTSET may, in its sole and absolute discretion and at any time, terminate Fund Services’ right to receive and/or use the Data.
•The Trust shall acknowledge that MSCI, S&P and FACTSET are third party beneficiaries of the Customer Agreement between S&P, MSCI, FACTSET and Fund Services, entitled to enforce all provisions of such agreement relating to the Data.
•
THE DATA IS PROVIDED TO THE TRUST ON AN "AS IS" BASIS. FUND SERVICES, ITS INFORMATION PROVIDERS, AND ANY OTHER THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF THE DATA MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE DATA (OR THE RESULTS TO BE OBTAINED BY THE USE THEREOF). FUND SERVICES, ITS INFORMATION PROVIDERS AND ANY OTHER THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF THE DATA EXPRESSLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF ORIGINALITY, ACCURACY, COMPLETENESS, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Exhibit B (continued) to the Fund Administration Servicing Agreement
THE TRUST ASSUMES THE ENTIRE RISK OF ANY USE THE TRUST MAY MAKE OF THE DATA. IN NO EVENT SHALL FUND SERVICES, ITS INFORMATION PROVIDERS OR ANY THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF THE DATA, BE LIABLE TO THE TRUST, OR ANY OTHER THIRD PARTY, FOR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR THE INABILITY OF THE TRUST TO USE THE DATA, REGARDLESS OF THE FORM OF ACTION, EVEN IF FUND SERVICES, ANY OF ITS INFORMATION PROVIDERS, OR ANY OTHER THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF THE DATA HAS BEEN ADVISED OF OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF SUCH DAMAGES.
Exhibit C to the Fund Administration Servicing Agreement – TrimTabs ETF Trust
Base Fee for Accounting, Administration, Transfer Agent & Account Services at September, 2016
The following reflects the greater of the basis point fee or annual minimum for funds listed on Exhibit A.1
Administration, Accounting, TA | Basis Points on AUM | Annual Minimum per Fund2 | |||||||||||||||||||||
First $___ | Next $___ | Next $___ | Balance | Funds 1-5 $___ | Funds 6-10 $___ | Fund 9 and above $___ | |||||||||||||||||
| ___ | ___ | ___ | ___ | ||||||||||||||||||||
Year 1Step3 In Fees per Fund for Administration/Accounting/Transfer Agent annual minimum
Q1 Year 1 | 25% of annual minimum | Q2 Year 1 | 50% of annual minimum | Q3 Year 1 | 150% of annual minimum | Q4 Year 1 | 175% of annual minimum | ||||||||||||||||
Month 1 | ___ | Month 4 | ___ | Month 7 | ___ | Month 10 | ___ | ||||||||||||||||
Month 2 | ___ | Month 5 | ___ | Month 8 | ___ | Month 11 | ___ | ||||||||||||||||
Month 3 | ___ | Month 6 | ___ | Month 9 | ___ | Month 12 | ___ | ||||||||||||||||
See the following pages for Services and Associated Fees in addition to the Base Fee
See the following pages for OPTIONAL Supplemental Services and Associated Fees
1Each fund, regardless of asset size, will have fees allocated to it equal to the per fund minimum. Should the complex level basis point fee calculation exceed the complex level minimum fee level calculation, the fees in excess of the minimum will be allocated to each fund based on percent on AUM.
2 Subject to annual CPI increase - All Urban Consumers - U.S. City Average.
Fees are calculated pro rata and billed monthly
3 Step in Fees do not include custody annual minimums, Quasar annual minimums, global custody fees or any out of pocket expenses such as daily pricing, corporate actions, CCO, domestic and global custody transaction charges, FINRA review charges via Quasar etc.
Exhibit C (continued) to the Fund Administration Servicing Agreement
Accounting, Administration, Transfer Agent & Account Services at September, 2016 in addition to the Base Fee1
Pricing Services
For daily pricing of each securities (estimated 252 pricing days annually)
$___ - Domestic Equities, Options, ADRs, Foreign Equities, Futures, Forwards
$___ - Domestic Corporates, Convertibles, Governments, Agencies, Currency Rates, Mortgage Backed
$___ - CMOs, Municipal Bonds, Money Market Instruments, Foreign Corporates, Convertibles, Governments, Agencies, Asset Backed, High Yield
$___ - Interest Rate Swaps, Foreign Currency Swaps, Total Return Swaps, Total Return Bullet Swaps
$___ - Bank Loans
$___ - Swaptions
$___ - Credit Default Swaps
$___ per Month Manual Security Pricing (>25 per day)
NOTE: Prices are based on using U.S. Bancorp 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. All schedules subject to change depending upon the use of unique security type requiring special pricing or accounting arrangements.
Corporate Action Services
Fee for IDC data used to monitor corporate actions
$___ per Foreign Equity Security per Month
$___ per Domestic Equity Security per Month
$___ per CMOs, Asset Backed, Mortgage Backed Security per Month
Third Party Administrative Data Charges (descriptive data for analytics, reporting and compliance)
$___ per security per month
Chief Compliance Officer Support Fee
CCO support annual fee $___ per trust per USBFS services selected (administration, accounting, transfer agent, distributor, custodian)
Chief Compliance Officer Support Fee includes the following services:
•Access to all USBFS business line materials via the CCO Portal including business line Critical Procedures, Compliance Controls, Testing of Controls, Annual USBFS CCO Review, SSAE 16 audits of business lines
•Assist the Fund CCO with quarterly 38a-1 certifications including a review of any changes to critical policies, procedures and controls and compliance events as required under Rule 38a-1 of the Investment Company Act
•Testing of procedures and controls across all business lines with access to business line managers and subject matter experts
•Quarterly CCO teleconferences and “Focus Calls” specific to current topics such as cybersecurity
•CCO forums held periodically throughout the year in major cities
•Annual client conference which includes CCO roundtable discussions
•SEC exam support
•Other items, including sharing of industry best practices across many areas
NOTE: the CCO Support team does NOT serve as the Fund CCO
1 Subject to annual CPI increase - All Urban Consumers - U.S. City Average.
Fees are calculated pro rata and billed monthly
Exhibit C (continued) to the Fund Administration Servicing Agreement
OPTIONAL Supplemental Services for Fund Accounting, Fund Administration & Portfolio Compliance (provided by USBFS upon client request) at September, 2016
Section 15(c) Reporting
Add the following for fund administration services and data charges necessary to compile SEC required “peer reporting” information.
$___ per fund per report
Ongoing Annual Legal Administration Services
Add the following for legal administration services in support of external legal counsel, including annual registration statement update and drafting of supplements: (Final Fee(s) subject to USBFS legal team review and approval)
$___ first fund
$___ each additional fund
Outbound Calling & Marketing Campaigns
Cost based on project requirements
Miscellaneous Expenses
Including but not limited to, SWIFT processing, customized reporting, third-party data provider costs (including GICS, MSCI, Lipper, etc.), postage, stationary, programming, special reports, proxies, insurance, XXXXX/XBRL filing, retention of records, federal and state regulatory filing fees, expenses related to and including travel to and from Board of Trustee meetings, third party auditing and legal expenses, wash sales reporting (GainsKeeper), tax e-filing, PFIC monitoring, conversion expenses (if necessary), and CCO team travel related costs to perform due diligence reviews at advisor and sub-advisor facilities.
Subject to annual CPI increase - All Urban Consumers - U.S. City Average.
Fees are calculated pro rata and billed monthly
