MASTER SERVICES AGREEMENT
Exhibit (k)(1)
This Master Services Agreement (this “Agreement”), dated August 14, 2024, is between Booster Income Opportunities Fund (the “Fund”), a Delaware statutory trust, and Ultimus Fund Solutions, LLC (“Ultimus”), a limited liability company organized under the laws of the state of Ohio.
Background
The Fund is a closed-end management investment company registered or to be registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and it desires that Ultimus perform certain services. Xxxxxxx is willing to perform such services on the terms and conditions set forth in this Agreement.
Terms and Conditions
| 1. | Retention of Ultimus |
The Fund retains Ultimus to provide the services set forth in each Addendum selected below (collectively, the “Services”), which are incorporated by reference into this Agreement. Ultimus accepts such employment to perform the selected Services.
| ☒ | Fund Accounting Addendum |
| ☒ | Fund Administration Addendum |
| ☒ | Transfer Agent and Shareholder Servicing Addendum |
| 2. | Allocation of Charges and Expenses |
| 2.1. | Ultimus shall furnish at its own expense the executive, supervisory, and clerical personnel necessary to perform its obligations under this Agreement. Xxxxxxx shall also pay all compensation of any officers of the Fund who are affiliated persons of Xxxxxxx, except when such person is serving as the Fund’s chief compliance officer. |
| 2.2. | The Fund assumes and shall pay or cause to be paid all other expenses of the Fund not otherwise allocated under this Section 2, including, without limitation: organization costs; taxes; expenses for legal and auditing services; the expenses of preparing (including typesetting), printing and mailing reports, prospectuses, statements of additional information, information statements, proxy statements and related materials; all expenses incurred in connection with issuing and repurchasing shares; the costs of custodial services; the cost of initial and ongoing registration or qualification of the shares under federal and state securities laws; fees and reimbursable expenses of officers, directors, and trustees (as applicable) of the Fund who are not affiliated persons of Ultimus or the investment adviser(s) to the Fund; insurance premiums; interest; brokerage costs; litigation and other extraordinary or nonrecurring expenses; and all fees and charges of investment advisers to the Fund. |
Booster Income Opportunities Fund Ultimus Master Services Agreement August 14, 2024 | Page 1 of 15 |
| 3. | Compensation |
| 3.1. | The Fund shall pay for the Services to be provided by Ultimus under this Agreement in accordance with, and in the manner set forth in, the fee letter attached to each addendum (each a “Fee Letter”), which may be amended from time to time. Each Fee Letter is incorporated by reference into this Agreement. |
| 3.2. | If this Agreement becomes effective subsequent to the first day of a month, Xxxxxxx’ compensation for that part of the month in which the Agreement is in effect shall be prorated in a manner consistent with the calculation of the fees as set forth in the applicable Fee Letter. If this Agreement terminates before the last day of a month, Xxxxxxx’ compensation for that part of the month in which the Agreement is in effect shall be equal to a full calendar month’s worth of fees as calculated in a manner consistent with the calculation of the fees as set forth in the applicable Fee Letter. The Fund shall promptly pay Xxxxxxx’ compensation for the preceding month. |
| 3.3. | In the event that the U.S. Securities and Exchange Commission (the “SEC”), Financial Industry Regulatory Authority, Inc. (“FINRA”), or any other regulator or self-regulatory authority adopts regulations and requirements relating to the payment of fees to service providers or which would result in any material increases in costs to provide the Services under this Agreement, the parties agree to negotiate in good faith amendments to this Agreement in order to comply with such requirements and provide for additional compensation for Xxxxxxx as mutually agreed to by the parties. |
| 3.4. | In the event that any fees are disputed, the Fund shall, on or before the due date, pay all undisputed amounts due hereunder and notify Ultimus in writing of any disputed fees which it is disputing in good faith. Payment for such disputed fees shall be due on or before the tenth (10th) business day after the day on which Xxxxxxx provides to the Fund documentation which reasonably supports the disputed charges. |
| 4. | Reimbursement of Expenses |
In addition to paying Xxxxxxx the fees described in each Fee Letter, the Fund agrees to reimburse Xxxxxxx for its actual reimbursable expenses in providing services hereunder, if applicable, including, without limitation, the following:
| 4.1. | Reasonable travel and lodging expenses incurred by officers and employees of Xxxxxxx in connection with attendance at meetings of the Fund’s Board (the “Board”) or any committee thereof and shareholders’ meetings; |
| 4.2. | All freight and other delivery charges incurred by Ultimus in delivering materials on behalf of the Fund; |
| 4.3. | All direct telephone, telephone transmission and telecopy or other electronic transmission expenses incurred by Xxxxxxx in communication with the Fund, the Fund’s investment adviser(s) or custodian, counsel for the Fund, counsel for the Fund’s independent Board members, the Fund’s independent accountants, dealers or others as required for Ultimus to perform the Services; |
Booster Income Opportunities Fund Ultimus Master Services Agreement August 14, 2024 | Page 2 of 15 |
| 4.4. | The cost of obtaining secondary security market quotes and any securities data, including, but not limited to, the cost of fair valuation services and the cost of obtaining corporate action related data and securities master data; |
| 4.5. | The cost of electronic or other methods of storing records and materials; |
| 4.6. | All fees and expenses incurred in connection with any licensing of software, subscriptions to databases, custom programming or systems modifications required to provide any special reports or services requested by the Fund; |
| 4.7. | Any expenses Ultimus shall incur at the direction of an officer of the Fund thereunto duly authorized other than an employee or other affiliated person of Xxxxxxx who may otherwise be named as an authorized representative of the Fund for certain purposes; |
| 4.8. | A reasonable allocation of the costs associated with the preparation of Ultimus’ Service Organization Control 1 Reports (“SOC 1 Reports”); |
| 4.9. | A reasonable allocation of the cost of GainsKeeper® software, used by Ultimus to track wash loss deferrals for both fiscal (855) and excise tax provisioning; and |
| 4.10. | Any additional expenses reasonably incurred by Ultimus in the performance of its duties and obligations under this Agreement. |
| 5. | Maintenance of Books and Records; Record Retention |
| 5.1. | Ultimus shall maintain and keep current the accounts, books, records and other documents relating to the Services as may be required by applicable law, rules, and regulations, including Federal Securities Laws as defined under Rule 38a-1 under the Investment Company Act. |
| 5.2. | Ownership of Records |
| A. | Xxxxxxx agrees that all such books, records, and other data (except computer programs and procedures) developed to perform the Services (collectively, “Client Records”) shall be the property of the Fund. |
| B. | Xxxxxxx agrees to provide the Client Records to the Fund, at the expense of the Fund, upon reasonable request, and to make such books and records available for inspection by the Fund or its regulators at reasonable times. |
| C. | Xxxxxxx agrees to furnish to the Fund, at the expense of the Fund, all Client Records in the electronic or other medium in which such material is then maintained by Xxxxxxx as soon as practicable after any termination of this Agreement. Unless otherwise required by applicable law, rules, or regulations, Xxxxxxx shall promptly turn over to the Fund or, upon the written request of the Fund, destroy the Client Records maintained by Ultimus pursuant to this Agreement. If Ultimus is required by applicable law, rule, or regulation to maintain any Client Records, it will provide the Fund with copies as soon as reasonably practical after the termination. |
Booster Income Opportunities Fund Ultimus Master Services Agreement August 14, 2024 | Page 3 of 15 |
| 5.3. | Xxxxxxx agrees to keep confidential all Client Records, except when requested to divulge such information by duly constituted authorities or court process. |
| 5.4. | If Xxxxxxx is requested or required to divulge such information by duly constituted authorities or court process, Ultimus shall, unless prohibited by law, promptly notify the Fund of such request(s) so that the Fund may seek, at the expense of the Fund, an appropriate protective order. |
| 6. | Subcontracting |
Ultimus may, at its expense, subcontract with any entity or person concerning the provision of the Services; provided, however, that Xxxxxxx shall not be relieved of any of its obligations under this Agreement by the appointment of such subcontractor, and that Xxxxxxx shall be responsible, to the extent provided in Section 10, for all acts of a subcontractor.
| 7. | Effective Date |
| 7.1. | This Agreement shall become effective as of the date first above written (the “Agreement Effective Date”). |
| 7.2. | Each Addendum shall become effective as of the date first written in the Addendum. |
| 8. | Term |
| 8.1. | Initial Term. This Agreement shall continue in effect, unless earlier terminated by either party as provided under this Section 8, for a period of three (3) years from the date first above written (the “Initial Term”). |
| 8.2. | Renewal Terms. Immediately following the Initial Term this Agreement shall automatically renew for successive one-year periods (a “Renewal Term”). |
| 8.3. | Termination. A party may terminate this Agreement under the following circumstances. |
| A. | Termination for Good Cause. During the Initial Term or a Renewal Term, a party (the “Terminating Party”) may only terminate this Agreement against the other party (the “Non-Terminating Party”) for good cause. For purposes of this Agreement, “good cause” shall mean: |
| (1) | a material breach of this Agreement by the Non-Terminating Party that has not been cured or remedied within 30 days after the Non-Terminating Party receives written notice of such breach from the Terminating Party; |
| (2) | the Non-Terminating Party takes a position regarding compliance with Federal Securities Laws that the Terminating Party reasonably disagrees with, the Terminating Party provides 30 days’ prior written notice of such disagreement, and the parties fail to come to agreement on the position within the 30-day notice period; |
Booster Income Opportunities Fund Ultimus Master Services Agreement August 14, 2024 | Page 4 of 15 |
| (3) | a final and unappealable judicial, regulatory, or administrative ruling or order in which the Non-Terminating Party has been found guilty of criminal or unethical behavior in the conduct of its business; |
| (4) | the authorization or commencement of, or involvement by way of pleading, answer, consent, or acquiescence in, a voluntary or involuntary case under the Bankruptcy Code of the United States Code, as then in effect; |
| (5) | liquidation of the Fund. |
| B. | Out-of-Scope Termination. If the Fund demands services that are beyond the scope of this Agreement and/or the Fund’s investment strategy, structure, holdings, or other aspects of the Fund’s operations deviate in any material respect from those Xxxxxxx understood to exist during the initial due diligence and onboarding stage, such that Ultimus is (or will be) required to employ resources, whether in the form of additional man hours, investment or otherwise, beyond what was originally anticipated by Xxxxxxx (collectively, the “Out-of-Scope Services”), and the parties cannot agree on appropriate terms relating to such Out-of-Scope Services, Ultimus may terminate this Agreement upon not less than 90 days’ prior written notice. |
| C. | End-of-Term Termination. A party can terminate this Agreement at the end of the Initial Term or a Renewal Term by providing written notice of termination to the other party at least 120 days prior to the end of the Initial Term or then-current Renewal Term. |
| D. | Early Termination. Any termination of this Agreement in whole or in part other than termination under Section 8.3.A-C is deemed an “Early Termination.” Upon the occurrence of an Early Termination, the Fund shall be subject to an “Early Termination Fee” equal to the pro rated fee amount due to Ultimus through the end of the then-current term as calculated in the applicable Fee Letter, including the repayment of any negotiated discounts provided by Xxxxxxx during the term of the Agreement. |
| E. | Final Payment. Any unpaid compensation, reimbursement of expenses, or Early Termination Fee is due to Ultimus within 15 calendar days of the termination date provided in the notice of termination. |
| 8.4. | No Waiver. Failure by either party to terminate this Agreement for a particular cause shall not constitute a waiver of its right to subsequently terminate this Agreement for the same or any other cause. |
| 9. | Intentionally Omitted. |
Booster Income Opportunities Fund Ultimus Master Services Agreement August 14, 2024 | Page 5 of 15 |
| 10. | Standard of Care; Limits of Liability; Indemnification |
| 10.1. | Standard of Care. Each party’s duties are limited to those expressly set forth in this Agreement and the parties do not assume any implied duties. Each party shall use its best efforts in the performance of its duties and act in good faith in performing the Services or its obligations under this Agreement. Each party shall be liable for any damages, losses or costs arising out of such party’s failure to perform its duties under this Agreement to the extent such damages, losses or costs arise out of its willful misfeasance, bad faith, gross negligence in the performance of its duties, or reckless disregard of its obligations and duties hereunder. |
| 10.2. | Limits of Liability |
| A. | Xxxxxxx shall not be liable for any Losses (as defined below) arising from the following: |
| (1) | performing Services or duties pursuant to any oral, written, or electric instruction, notice, request, record, order, document, report, resolution, certificate, consent, data, authorization, instrument, or item of any kind that Ultimus reasonably believes to be genuine and to have been signed, presented, or furnished by a duly authorized representative of the Fund (other than an employee or other affiliated persons of Ultimus who may otherwise be named as an authorized representative of the Fund for certain purposes); |
| (2) | operating under its own initiative, in good faith and in accordance with the standard of care set forth herein, in performing its duties or the Services; |
| (3) | using valuation information provided by the Fund’s approved third-party pricing service(s) or the investment adviser(s) to the Fund for the purpose of valuing the Fund’s portfolio holdings; |
| (4) | any default, damages, costs, loss of data or documents, errors, delay, or other loss whatsoever caused by events beyond Ultimus’ reasonable control, including, without limitation, corrupt, faulty or inaccurate data provided to Ultimus by third-parties; |
| (5) | any error, action or omission by the Fund or other past or current service provider; and |
| (6) | any failure to properly register the Fund’s shares in accordance with the Securities Act or any state blue sky laws. |
| B. | Xxxxxxx may apply to the Fund at any time for instructions and may consult with counsel for the Fund, counsel for the Fund’s independent Board members, and with accountants and other experts with respect to any matter arising in connection with Xxxxxxx’ duties or the Services. Ultimus shall not be liable or accountable for any action taken or omitted by it in good faith in accordance with such instruction or with the reasonable opinion of such counsel, accountants, or other experts qualified to render such opinion. |
Booster Income Opportunities Fund Ultimus Master Services Agreement August 14, 2024 | Page 6 of 15 |
| C. | A copy of the Fund’s formation document is on file with the Secretary of State (or equivalent authority) of the state in which the Fund is organized, and notice is hereby given that this instrument is executed on behalf of the Fund and not the Directors or Trustees (as applicable) of the Fund individually and that the obligations of this instrument are not binding upon any of the Directors, Trustees, officers or shareholders individually but are binding only upon the assets and property of the Fund, and Ultimus shall look only to the assets of the Fund for the satisfaction of such obligations. |
| D. | Xxxxxxx shall not be held to have notice of any change of authority of any officer, agent, representative or employee of the Fund, the Fund’s investment adviser or any of the Fund’s other service providers until receipt of written notice thereof from the Fund. As used in this Agreement, the term “investment adviser” includes all sub-advisers or persons performing similar services. |
| E. | The Board has and retains sole responsibility for oversight of all compliance matters relating to the Fund, including, but not limited to, compliance with the Investment Company Act, the Internal Revenue Code of 1986, as amended (the “Internal Revenue Code”), the USA PATRIOT Act of 2001, the Sarbanes Oxley Act of 2002 and the policies and limitations of the Fund relating to the portfolio investments as set forth in the prospectus and statement of additional information. Ultimus’ monitoring and other functions hereunder shall not relieve the Board of its primary day-to-day responsibility for overseeing such compliance. |
| F. | To the maximum extent permitted by law, the Fund agrees to limit Ultimus’ liability for the Fund’s Losses (as defined below) to an amount that shall not exceed the total compensation received by Ultimus under this Agreement during the most recent rolling 12-month period or the actual time period this Agreement has been in effect if less than 12 months. This limitation shall apply regardless of the cause of action or legal theory asserted. |
| G. | In no event shall Ultimus be liable for trading losses, lost revenues, special, incidental, punitive, indirect, consequential or exemplary damages or lost profits, whether or not such damages were foreseeable or Xxxxxxx was advised of the possibility thereof. Ultimus shall not be liable for any corrupt, faulty or inaccurate data provided to Ultimus by any third-parties (including, without limitation, any investment adviser to the Fund) for use in delivering Ultimus’ Services to the Fund and Xxxxxxx shall have no duty to independently verify and confirm the accuracy of third-party data. The parties acknowledge that the other parts of this Agreement are premised upon the limitation stated in this section. |
| 10.3. | Indemnification |
| A. | Each party (the “Indemnifying Party”) agrees to indemnify, defend, and protect the other party, including its trustees, directors, managers, officers, employees, and other agents (collectively, the “Indemnitees” and each an “Indemnitee”), and shall hold the Indemnitees harmless from and against any actions, suits, claims, losses, damages, liabilities, and reasonable costs, charges, and expenses (including attorney fees and investigation expenses) (collectively, “Losses”) arising out of (1) the Indemnifying Party’s failure to exercise the standard of care set forth above unless such Losses were caused in part by the Indemnitees own willful misfeasance, bad faith or gross negligence; (2) any violation of Applicable Law (defined below) by the Indemnifying Party or its affiliated persons or agents relating to this Agreement and the activities thereunder; and (3) any material breach by the Indemnifying Party or its affiliated persons or agents of this Agreement. |
Booster Income Opportunities Fund Ultimus Master Services Agreement August 14, 2024 | Page 7 of 15 |
| B. | Notwithstanding the foregoing provisions, the Fund shall indemnify Ultimus for Ultimus’ Losses arising from circumstances under Section 10.2.A. |
| C. | Upon the assertion of a claim for which either party may be required to indemnify the other, the Indemnitee shall promptly notify the Indemnifying Party of such assertion, and shall keep the Indemnifying Party advised with respect to all developments concerning such claim. Notwithstanding the foregoing, the failure of the Indemnitee to timely notify the Indemnifying Party shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent that the Indemnifying Party is materially prejudiced by such failure. |
| D. | The Indemnifying Party shall have the option to participate with the Indemnitee in the defense of such claim or to defend against said claim in its own name or in the name of the Indemnitee. The Indemnitee shall in no case confess any claim or make any compromise in any case in which the Indemnifying Party may be required to indemnify the Indemnitee except with the Indemnifying Party’s prior written consent. |
| 10.4. | The provisions of this Section 10 shall survive termination of this Agreement. |
| 11. | Force Majeure. |
Neither party will be liable for Losses, loss of data, delay of Services, or any other issues caused by events beyond its reasonable control, including, without limitation, delays by third party vendors and/or communications carriers, acts of civil or military authority, national emergencies, labor difficulties, fire, flood, catastrophe, acts of God, insurrection, war, riots, pandemics, failure of the mails, transportation, communication, or power supply.
| 12. | Representations and Warranties |
| 12.1. | Joint Representations. Each party represents and warrants, which representations and warranties shall be deemed to be continuing throughout the term of this Agreement, that: |
| (A) | It is a corporation, limited liability company, partnership, trust, or other entity duly organized and validly existing in good standing under the laws of the jurisdiction in which it is organized. |
| (B) | To the extent required by Applicable Law (defined below), it is duly registered with all appropriate regulatory agencies or self-regulatory organizations and such registration will remain in full force and effect for the duration of this Agreement. |
| (C) | For the duties and responsibilities under this Agreement, it is currently and will continue to abide by all applicable federal and state laws, including, without limitation, federal and state securities laws; regulations, rules, and interpretations of the SEC and its authorized regulatory agencies and organizations, including FINRA; and all other self-regulatory organizations governing the transactions contemplated under this Agreement (collectively, “Applicable Law”). |
Booster Income Opportunities Fund Ultimus Master Services Agreement August 14, 2024 | Page 8 of 15 |
| (D) | It has duly authorized the execution and delivery of this Agreement and the performance of the transactions, duties, and responsibilities contemplated by this Agreement. |
| (E) | This Agreement constitutes a legal obligation of the party, subject to bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting the rights and remedies of creditors and secured parties. |
| (F) | Whenever, in the course of performing its duties under this Agreement, it determines that a violation of Applicable Law has occurred, or that, to its knowledge, a possible violation of Applicable Law may have occurred, or with the passage of time could occur, it shall promptly notify the other party of such violation. |
| 12.2. | Representations of the Fund. The Fund represents and warrants, which representations and warranties shall be deemed to be continuing throughout the term of this Agreement, that: |
| (A) | It shall cause its investment adviser(s) and sub-advisers, prime broker, custodian, legal counsel, independent accountants, and other service providers and agents, past or present, for the Fund to cooperate with Ultimus and to provide it with such information, data, documents, and advice relating to the Fund as appropriate or requested by Xxxxxxx, in order to enable Xxxxxxx to perform its duties and obligations under this Agreement. To the extent the Fund or the investment adviser(s) or any other service provider to the Fund is/are unable to supply Ultimus with all of the information necessary for Xxxxxxx to perform the Services, Xxxxxxx will not be able to fully perform the Services and will not be responsible for such failure. |
| (B) | The Fund’s organizational documents, registration statement and prospectus are true and accurate and will remain true and accurate at all times during the term of this Agreement in conformance with applicable federal and state securities laws. |
| (C) | Each of the employees of Xxxxxxx that serves or has served at any time as an officer of the Fund, including the CCO, President, Treasurer, Secretary and the AML Compliance Officer, shall be covered by the Fund’s Directors & Officers/Errors & Omissions insurance policy (the “Policy”) and shall be subject to the provisions of the Fund’s formation document and Bylaws regarding indemnification of its officers. The Fund shall provide Ultimus with proof of current coverage, including a copy of the Policy, and shall notify Xxxxxxx immediately should the Policy be canceled or terminated. |
| (D) | Any officer of the Fund shall be considered an individual who is authorized to provide Xxxxxxx with instructions and requests on behalf of the Fund (an “Authorized Person”) (unless such authority is limited in a writing from the Fund and received by Xxxxxxx) and has the authority to appoint additional Authorized Persons, to limit or revoke the authority of any previously designated Authorized Person, and to certify to Ultimus the names of the Authorized Persons from time to time. |
Booster Income Opportunities Fund Ultimus Master Services Agreement August 14, 2024 | Page 9 of 15 |
| 13. | Insurance |
| 13.1. | Maintenance of Insurance Coverage. Each party agrees to maintain throughout the term of this Agreement professional liability insurance coverage of the type and amount reasonably customary in its industry. Upon request, a party shall furnish the other party with pertinent information concerning the professional liability insurance coverage that it maintains. Such information shall include the identity of the insurance carrier(s), coverage levels, and deductible amounts. |
| 13.2. | Notice of Termination. A party shall promptly notify the other party should any of the notifying party’s insurance coverage be canceled or reduced. Such notification shall include the date of change and the reasons therefore. |
| 14. | Information Provided by the Fund |
| 14.1. | Prior to the Agreement Effective Date. Prior to the Agreement Effective Date, the Fund will furnish to Ultimus the following: |
| (A) | copies of the Fund’s formation document and of any amendments thereto, certified by the proper official of the state in which such document has been filed; |
| (B) | the Fund’s Bylaws and any amendments thereto; |
| (C) | certified copies of resolutions of the Board covering the approval of this Agreement, authorization of a specified officer of the Fund to execute and deliver this Agreement and authorization for specified officers of the Fund to instruct Ultimus thereunder; |
| (D) | a list of all the officers of the Fund, together with specimen signatures of those officers who are authorized to instruct Xxxxxxx in all matters; |
| (E) | the Fund’s registration statement and all amendments thereto filed with the SEC; |
| (F) | the Fund’s notification of registration under the Investment Company Act; |
| (G) | the Fund’s current prospectus and statement of additional information; |
| (H) | an accurate, current list of shareholders of the Fund showing each shareholder’s address of record, number of shares owned and whether such shares are represented by outstanding share certificates; |
| (I) | copies of the current plan of distribution adopted by the Fund under Rule 12b-1 under the Investment Company Act, if applicable; |
| (J) | copies of the current investment advisory agreement and current investment sub-advisory agreement(s), if applicable, for the Fund; |
Booster Income Opportunities Fund Ultimus Master Services Agreement August 14, 2024 | Page 10 of 15 |
| (K) | copies of the current underwriting agreement for the Fund; |
| (L) | contact information for the Fund’s service providers, including, but not limited to, the Fund’s administrator, custodian, transfer agent, independent accountants, legal counsel, underwriter and chief compliance officer; and |
| (M) | a copy of procedures adopted by the Fund in accordance with Rule 38a-1 under the Investment Company Act. |
| 14.2. | After the Agreement Effective Date. After the Agreement Effective Date, the Fund will furnish to Ultimus any amendments to the items listed in Section 14.1. |
| 15. | Compliance with Law |
The Fund assumes full responsibility for the preparation, contents, and distribution of its prospectus and further agrees to comply with all applicable requirements of the Federal Securities Laws and any other laws, rules and regulations of governmental authorities having jurisdiction over the Fund, including, but not limited to, the Internal Revenue Code, the USA PATRIOT Act of 2001, and the Xxxxxxxx-Xxxxx Act of 2002, each as amended.
| 16. | Privacy and Confidentiality |
| 16.1. | Definition of Confidential Information. The term “Confidential Information” shall mean all information that either party discloses (a “Disclosing Party”) to the other party (a “Receiving Party”), whether in writing, electronically, or orally and in any form (tangible or intangible), that is confidential, proprietary, or relates to clients or shareholders (each either existing or potential). Confidential Information includes, but is not limited to: |
| (A) | any information concerning technology, such as systems, source code, databases, hardware, software, programs, applications, engaging protocols, routines, models, displays, and manuals; |
| (B) | any unpublished information concerning research activities and plans, customers, clients, shareholders, strategies and plans, costs, operational techniques; |
| (C) | any unpublished financial information, including information concerning revenues, profits and profit margins, and costs or expenses; and |
| (D) | Customer Information (as defined below). |
Confidential Information is deemed confidential and proprietary to the Disclosing Party regardless of whether such information was disclosed intentionally or unintentionally, or marked appropriately.
Booster Income Opportunities Fund Ultimus Master Services Agreement August 14, 2024 | Page 11 of 15 |
| 16.2. | Definition of Customer Information. Any Customer Information will remain the sole and exclusive property of the Fund. “Customer Information” shall mean all non-public, personally identifiable information as defined by Xxxxx-Xxxxx-Xxxxxx Act of 1999, as amended, and its implementing regulations (e.g., SEC Regulation S-P and Federal Reserve Board Regulation P) (collectively, the “GLB Act”). |
| 16.3. | Treatment of Confidential Information |
| (A) | Each party agrees that at all times during and after the terms of this Agreement, it shall use, handle, collect, maintain, and safeguard Confidential Information in accordance with (1) the confidentiality and non-disclosure requirements of this Agreement; (2) the GLB Act, as applicable and as it may be amended; and (3) such other Applicable Law, whether in effect now or in the future. |
| (B) | Without limiting the foregoing, the Receiving Party shall apply to any Confidential Information at least the same degree of reasonable care used for its own confidential and proprietary information to avoid unauthorized disclosure or use of Confidential Information under this Agreement. |
| (C) | Each party further agrees that: |
| (1) | The Receiving Party will hold all Confidential Information it obtains in strictest confidence and will use and permit use of Confidential Information solely for the purposes of this Agreement or as otherwise provided for in this Agreement, and consistent therewith, may disclose or provide access to its responsible employees or agents who have a need to know and are under adequate confidentiality agreements or arrangements and make copies of Confidential Information to the extent reasonably necessary to carry out its obligations under this Agreement; |
| (2) | Notwithstanding the foregoing, the Receiving Party may release Confidential Information as permitted or required by law or approved in writing by the Disclosing Party, which approval shall not be unreasonably withheld and may not be withheld where the Receiving Party may be exposed to civil or criminal liability or proceedings for failure to release such information; |
| (3) | Additionally, Ultimus may provide Confidential Information typically supplied in the investment company industry to companies that track or report price, performance or other information regarding investment companies; and |
| (4) | The Receiving Party will immediately notify the Disclosing Party of any unauthorized disclosure or use and will cooperate with the Disclosing Party to protect all proprietary rights in any Confidential Information. |
| 16.4. | Severability. This provision and the obligations under this Section 16 shall survive termination of this Agreement. |
Booster Income Opportunities Fund Ultimus Master Services Agreement August 14, 2024 | Page 12 of 15 |
| 17. | Press Release |
Within the first 60 days following the Agreement Effective Date, the Fund agrees to review in good faith a press release (in any format or medium) announcing the Agreement with Xxxxxxx; provided that Xxxxxxx must obtain the Fund’s written consent prior to publication of such release, which consent shall not be unreasonably denied by the Fund.
| 18. | Non-Exclusivity |
The services of Ultimus rendered to the Fund are not deemed to be exclusive. Except to the extent necessary to perform Ultimus’ obligations under this Agreement, nothing herein shall be deemed to limit or restrict Ultimus’ right, or the right of any of Ultimus’ managers, officers or employees who also may be a trustee, officer or employee of the Fund, or persons who are otherwise affiliated persons of the Fund to engage in any other business or to devote time and attention to the management or other aspects of any other business, whether of a similar or dissimilar nature, or to render services of any kind to any other person.
| 19. | Arbitration |
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in Cincinnati, Ohio, according to the Commercial Arbitration Rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
This arbitration provision shall be enforced and interpreted exclusively in accordance with applicable federal law, including the Federal Arbitration Act. Any costs, fees, or taxes involved in enforcing the award shall be fully assessed against and paid by the party resisting enforcement of said award. The prevailing party shall also be entitled to an award of reasonable attorneys’ fees and costs incurred in connection with the enforcement of this Agreement.
| 20. | Notices |
Any notice provided under this Agreement shall be sufficiently given when either delivered personally by hand or received by electronic mail overnight delivery, or certified mail at the following address.
| 20.1. | If to the Fund: |
Booster Income Opportunities Fund
Attn: Xxxx Xxxxx
0000 X. Xxxxxxxxxx Xx., Xxxxx 000
Wheaton, IL 60189
Email: xxxx@xxxxxxxxxxxx.xxx
| 20.2. | If to Ultimus: |
Ultimus Fund Solutions, LLC
Attn: General Counsel
0000 Xxxxx 000xx Xxxxxx, Xxxxx 000
Elkhorn, NE 68022
Email: xxxxx@xxxxxxxxxxxxxxxxxxxx.xxx
Booster Income Opportunities Fund Ultimus Master Services Agreement August 14, 2024 | Page 13 of 15 |
| 21. | General Provisions |
| 21.1. | Incorporation by Reference. This Agreement and its addendums, schedules, exhibits, and other documents incorporated by reference express the entire understanding of the parties and supersede any other agreement between them relating to the Services. |
| 21.2. | Conflicts. In the event of any conflict between this Agreement and any appendices or Addendum thereto, this Agreement shall control. |
| 21.3. | Amendments. The parties may only amend, modify, or waive all or part of this Agreement by written amendment or waiver signed by both parties. |
| 21.4. | Assignments. |
| (A) | Except as provided in this Section 21.4, this Agreement and the rights and duties hereunder shall not be assignable by either of the parties except by the specific written consent of the non-assigning party. |
| (B) | The terms and provisions of this Agreement shall become automatically applicable to any investment company that is the successor to the Fund because of reorganization, recapitalization, or change of domicile. |
| (C) | Ultimus may, to the extent permitted by law and in its sole discretion, assign all its rights and interests in this Agreement to an affiliate, parent, subsidiary or to the purchaser of substantially all of its business, provided that Ultimus provides the Fund at least 90 days’ prior written notice. |
| (D) | This Agreement shall be binding upon, and shall inure to the benefit of, the parties and their respective successors and permitted assigns. |
| 21.5. | Governing Law. This Agreement shall be construed in accordance with the laws of the state of Ohio and the applicable provisions of the Investment Company Act. To the extent that the applicable laws of the state of Ohio, or any of the provisions herein, conflict with the applicable provisions of the Investment Company Act, the latter shall control. |
| 21.6. | Headings. Section and paragraph headings in this Agreement are included for convenience only and are not to be used to construe or interpret this Agreement. |
| 21.7. | Multiple Counterparts. This Agreement may be executed in two or more counterparts, each of which when executed shall be deemed to be an original, but such counterparts shall together constitute but one and the same instrument. A signed copy of this Agreement delivered by email or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original, signed copy of this Agreement. |
| 21.8. | Severability. If any part, term or provision of this Agreement is held to be illegal, in conflict with any law or otherwise invalid, the remaining portion or portions shall be considered severable and not be affected by such determination, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term or provisions held to be illegal or invalid. |
Signatures are located on the next page.
Booster Income Opportunities Fund Ultimus Master Services Agreement August 14, 2024 | Page 14 of 15 |
The parties duly executed this Agreement as of August 14, 2024.
| Booster Income Opportunities Fund | Ultimus Fund Solutions, LLC | |||
|
By: |
/s/ Xxxx Xxxxx |
By: |
/s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxx | Name: | Xxxx Xxxxxxx | |
| Title: | President and Principal Executive Officer | Title: | Chief Executive Officer | |
Booster Income Opportunities Fund Ultimus Master Services Agreement August 14, 2024 | Page 15 of 15 |
Fund Accounting Addendum
for
Booster Income Opportunities Fund
This Fund Accounting Addendum, dated August 14, 2024, is between Booster Income Opportunities Fund (the “Fund”) and Ultimus Fund Solutions, LLC (“Ultimus”) and supplements that certain Master Services Agreement dated August 14, 2024 by and between the Fund and Ultimus (the “Agreement”). Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement.
Fund Accounting Services
| 1. | Performance of Accounting Services |
Ultimus shall perform the following accounting services for the Fund, each in accordance with the Fund’s prospectus and statement of additional information:
| 1.1. | calculate the net asset value per share utilizing prices obtained from the sources described in subsection 1.2 below; |
| 1.2. | obtain security prices from independent pricing services, or if such quotes are unavailable and/or have been subject to override by the Fund’s investment adviser, then obtain such prices from the Fund’s investment adviser or its designee; |
| 1.3. | periodically verify and reconcile the Fund’s cash position with the Funds’ custodian, it being understood and agreed that Xxxxxxx will be provided direct, electronic access to such information from the Fund’s custodian; |
| 1.4. | periodically verify and reconcile the Fund’s non-cash assets with the applicable third-party(ies) holding the same, it being understood and agreed that Ultimus will obtain the information needed to perform such verification and reconciliation directly from the applicable third party(ies); |
| 1.5. | compute, as applicable, the Fund’s net income and realized capital gains, dividend payables, dividend factors, and weighted average portfolio maturity; |
| 1.6. | accrue income of the Fund based upon income estimates obtained from independent pricing services, or if such income estimates are unavailable, then upon income estimates obtained from the Fund’s investment adviser or its designee; |
| 1.7. | record investment trades received in proper form from the Fund or its authorized agents; |
| 1.8. | calculate Fund expenses based on instructions from the Fund’s administrator or entity approved by the Board; |
| 1.9. | determine the outstanding receivables and payables for all (1) security trades, (2) Fund share transactions and (3) income and expense accounts; |
| 1.10. | provide system generated accounting reports in connection with the Fund’s regular annual audit and other audits and examinations by regulatory agencies; |
Booster Income Opportunities Fund Fund Accounting Addendum | Page 1 of 4 |
| 1.11. | provide such ad hoc periodic reports as agreed to by the parties; |
| 1.12. | prepare and maintain the following records upon receipt of information in proper form from the Fund or its authorized agents: (1) cash receipts journal; (2) cash disbursements journal; (3) dividend record; (4) purchase and sales-portfolio securities journals; (5) subscription and repurchase journals; (6) security ledgers; (7) broker ledger; (8) general ledger; (9) expense accruals; (10) income accruals; (11) securities and monies borrowed or loaned and collateral therefore; (12) foreign currency journals; and (13) trial balances; |
| 1.13. | provide information typically supplied in the investment company industry to companies that track or report price, performance or other information with respect to investment companies; |
| 1.14. | provide accounting information to the Fund’s independent registered public accounting firm for preparation of the Fund’s tax returns; and |
| 1.15. | cooperate with, and take reasonable actions in the performance of its duties under this Agreement, so that all necessary information is made available to the Fund’s independent public accountants in connection with any audit or the preparation of any report requested by the Fund. |
| 2. | Accounting Services Related to Odd Lot Pricing |
If, in addition to those services described under Section 1 [Performance of Accounting Services] of this Fund Accounting Addendum, the Fund or the Fund’s investment adviser informs Xxxxxxx that the Fund holds or will hold any security in a quantity constituting an odd lot (as opposed to a round lot), Ultimus will undertake to perform such additional procedures as are determined necessary by the Board to price such security, including, if applicable, the application of a discount to the pricing obtained from any independent pricing service(s); provided, however, that any such additional procedures to be performed in connection with securities held in quantities constituting an odd lot, are clearly delineated in a written odd lot pricing methodology and procedure approved by the Board; it being further understood and agreed by the parties hereto that Xxxxxxx shall be compensated in the form of an odd lot pricing fee for performing such additional procedures, and, notwithstanding anything in the Agreement to the contrary, including, without limitation, any duty of care or indemnification obligation that Xxxxxxx might otherwise owe to the Fund, Xxxxxxx will not be liable for any NAV error that may arise out of any incorrect, incomplete, or missing data provided to Ultimus by the Fund’s investment adviser or any sub-adviser to the Fund as part of any odd lot pricing procedures approved by the Board, and the Fund hereby agrees to indemnify Xxxxxxx for and hold Ultimus harmless from any such liability.
| 3. | Derivatives Risk Management Program Support Services |
Ultimus may, at the election of the Fund, provide the Fund with the Derivatives Risk Management Program Support Services described below, in accordance with Rule 18f-4 under the Investment Company Act (“Rule 18f-4”):
| a. | Manage derivatives-specific data, update security master files, and load the Fund’s portfolio composition and derivatives-specific data into Confluence software; |
| b. | Deliver derivatives exposure and value-at-risk (“VaR”) reports generated by the Confluence software to the Fund’s investment adviser (“Adviser”) and the Fund’s Chief Compliance Officer and make available reporting for weekly stress testing and back-testing calculations performed by the Confluence software; |
Booster Income Opportunities Fund Fund Accounting Addendum | Page 2 of 4 |
| c. | Provide Adviser access to the Confluence software in order that Adviser may calculate derivatives exposure for the Fund and make other derivatives risk management calculations as required by Rule 18f-4 (e.g., VaR calculations, weekly back-testing, and weekly stress-testing); |
| d. | Provide Adviser a board reporting template; and |
| e. | Provide the Board access to an independent derivatives expert (a “Derivatives Expert”) capable of supporting the Board’s efforts in effecting compliance oversight as required by Rule 18f-4 and the Fund’s related Derivatives Risk Management Program. |
In providing the Derivatives Risk Management Program Support Services, in each instance where Ultimus has committed to provide Adviser with access to VaR reports or other derivatives related information, Adviser may, with Ultimus’ consent, elect to have Ultimus deliver the same reports and information to an Ultimus approved third party 18f-4 service provider/designee; with the understanding that delivery of such information to such third party 18f-4 service provider/designee may incur additional fees.
Alternatively, the Fund may elect to forego receipt of the Derivatives Risk Management Program Support Services and instead deliver (or cause to be delivered) to Ultimus derivatives data required to be reported monthly on Form N-PORT, in which case Ultimus’ services (the “18f-4/N-PORT Support Services”) will be limited to taking receipt of that derivatives data, manually loading that data into its reporting system, and reporting the required derivatives information on Form N-PORT monthly.
The Adviser has and retains sole responsibility for identifying derivative securities. Xxxxxxx’ provision of Derivatives Risk Management Program Support Services or 18f-4/N-PORT Support Services hereunder shall not relieve the Adviser of such responsibilities, and under no circumstances will Ultimus share in those responsibilities except as expressly agreed upon in this Fund Accounting Addendum.
| 4. | Special Reports and Services |
| 4.1. | Ultimus may agree (but shall be under no obligation) to provide additional special reports upon the request of the Fund or the Fund’s investment adviser, which may result in an additional charge, the amount of which shall be agreed upon by the parties prior to the reports being made available. |
| 4.2. | Ultimus may agree (but shall be under no obligation) to provide such other similar services with respect to the Fund as may be reasonably requested by the Fund, which may result in an additional charge, the amount of which shall be agreed upon between the parties prior to such services being provided. |
Signatures are located on the next page.
Booster Income Opportunities Fund Fund Accounting Addendum | Page 3 of 4 |
The parties duly executed this Fund Accounting Addendum as of August 14, 2024.
Booster Income Opportunities Fund |
Ultimus Fund Solutions, LLC | |||
|
By: |
/s/ Xxxx Xxxxx |
By: |
/s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxx | Name: | Xxxx Xxxxxxx | |
| Title: | President and Principal Executive Officer | Title: | Chief Executive Officer | |
Booster Income Opportunities Fund Fund Accounting Addendum | Page 4 of 4 |
