SERVICES AGREEMENT
The
following is a services agreement among Atlantic Fund Administration, LLC, The
Xxxxxx Managed Equity Trust and The Xxxxxx Managed Income
Trust.
TABLE
OF CONTENTS
| SECTION 1 | APPOINTMENT; DELIVERY OF DOCUMENTS | 1 |
| SECTION 2. | DUTIES OF ATLANTIC AND THE FUNDS; CONTRACT MANAGEMENT | 2 |
| SECTION 3. | STANDARD OF CARE; INDEMNIFICATION; RELIANCE; AND LIABILITY LIMITATIONS | 6 |
| SECTION 4. | COMPENSATION AND EXPENSES | 8 |
| SECTION 5. | EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT | 9 |
| SECTION 6. | ADDITIONAL FUNDS OR CLASSES OF SHARES | 11 |
| SECTION 7. | RECORDKEEPING; PROPRIETARY INFORMATION; CONFIDENTIALITY | 11 |
| SECTION 8. | REPRESENTATIONS AND WARRANTIES | 13 |
| SECTION 9. | FORCE MAJEURE | 14 |
| SECTION 10. | ACTIVITIES OF ATLANTIC | 14 |
| SECTION 11. | AUDIT RIGHTS; COOPERATION WITH COMPLIANCE, OTHER SERVICE PROVIDERS AND INDEPENDENT ACCOUNTANTS | 14 |
| SECTION 12. | SERVICE DAYS | 16 |
| SECTION 13. | LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY | 16 |
| SECTION 14. | TAXES | 16 |
| SECTION 15. | MISCELLANEOUS | 16 |
| APPENDIX A: | FUNDS OF THE TRUST | 1 |
| APPENDIX B: | SERVICES | 2 |
| SCHEDULE A: | FEE SCHEDULE | 5 |
AGREEMENT dated as of January
4, 2010 (the “Effective Date”), by
and among The Xxxxxx Managed Equity Trust, a Massachusetts business trust, with
its principal place of business at 000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxx
00000 (the “Equity
Trust”), The Xxxxxx Managed Income Trust, a Massachusetts business trust,
with its principal place of business at 000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxx 00000 (the “Income Trust” and,
together with the Equity Trust, each a “Trust” and,
collectively, the “Trusts”), and
Atlantic Fund Administration, LLC, a Delaware limited liability company, with
its principal office and place of business at Three Xxxxx Xxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxx 00000 (“Atlantic”).
W I T N E S S E T H
:
WHEREAS, each Trust is
registered under the Investment Company Act of 1940, as amended (the “1940 Act”), as an
open-end management investment company and may issue shares of beneficial
interest with no par value, in separate series and classes; and
WHEREAS, each Trust offers
shares in various series as listed in Appendix A hereto
(each such series, together with all other series subsequently established by a
Trust and made subject to this Agreement being herein referred to as a “Fund,” and
collectively, the “Funds”) and the
applicable Trust offers shares of various classes of each Fund as listed in
Appendix A
hereto (each such class together with all other classes subsequently established
by the Trust in a Fund being here herein referred to as a “Class,” and
collectively as the “Classes”);
and
WHEREAS, the Trust desires
that Atlantic perform certain services for each Fund and Class thereof, and
Atlantic is willing to provide those services, on the terms and conditions set
forth in this Agreement.
NOW THEREFORE, for and in
consideration of the mutual covenants and agreements contained herein, the
Trusts and Atlantic, intending to be legally bound, hereby agree as
follows:
SECTION
1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) Each
Trust, on behalf of the applicable Funds, hereby appoints Atlantic, and Atlantic
hereby agrees, to act or to cause an Affiliate to act for the Trusts and for
each of the Funds for the period and on the terms set forth in this Agreement to
provide the services set forth in Appendix B (the
“Services”). As
the context may require (including in relation to the delivery of the Services
and information, and compliance with recordkeeping requirements), references
herein to Atlantic include Atlantic and such Affiliates to which Atlantic may
from time to time subcontract the performance of the Services or any portion
thereof pursuant to Section 5(f) of this
Agreement. Pursuant and subject to the provisions of this Agreement,
including Section
5(f) hereof, Atlantic shall be fully responsible to the Trusts and the
Funds for the acts and omissions of any such subcontractor as Atlantic is for
its own acts and omissions under this Agreement. For purposes of this
Agreement, the term “Affiliate” means,
with respect to any Person, any other Person that is controlled by, controls or
is under common control with such Person; the term “Person” means any
natural person or incorporated or unincorporated entity; and the term “control” means
ownership of, or possession of the right to vote, more than 25% of the
outstanding voting equity of that Person or the right to control the appointment
of the board of directors, management or executive officers of that
Person.
(b) In
connection therewith, the Trusts have delivered to Atlantic, on behalf of each
Fund, or Atlantic has received copies of (i) each Trust’s Declaration of Trust
and By-Laws (collectively, as amended from time to time, “Organic Documents”),
(ii) each Trust’s “Registration Statement” and all amendments thereto with
respect to each Fund filed with the US Securities and Exchange Commission
(“SEC”)
pursuant to the 1940 Act or the Securities Act of 1933, as amended (“Securities Act”),
(iii) the current Prospectus and Statement of Additional Information of each
Fund (collectively, as currently in effect and as amended or supplemented, the
“Prospectus”),
(iv) each current plan of distribution or similar document adopted by the Trusts
under Rule 12b-1 under the 1940 Act (“Plan”) and each
current shareholder service plan or similar document adopted by the Trusts
(“Service
Plan”) and (v) all applicable procedures adopted by the Trusts with
respect to each Fund (the “Policies and
Procedures”), and shall promptly furnish Atlantic with all amendments of
or supplements to the foregoing. The Trusts shall deliver to Atlantic
a certified copy of the resolutions of the Board of Trustees of each Trust (the
“Boards”)
appointing Atlantic and authorizing the execution and delivery of this
Agreement.
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SECTION
2. DUTIES OF ATLANTIC AND THE FUNDS; CONTRACT
MANAGEMENT
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(a) Subject
to the direction and control of the Boards and as detailed in this Agreement,
Atlantic shall manage, coordinate and report to the Boards regarding the (i)
Services and (ii) such other matters related to the services provided to the
Trusts and the Funds by Atlantic as may be specifically set forth in this
Agreement.
(b) With
respect to one or more Funds, as applicable, and subject to the terms and
conditions of this Agreement, Atlantic shall provide the
Services. Notwithstanding anything in this Agreement to the contrary,
the parties agree that Atlantic’s services shall be limited to those related to
the Funds and that Atlantic will not be providing Services pertaining to the
Trusts or any affiliates of the Trusts that are not Funds.
(c) Atlantic
shall reasonably cooperate with the Funds to accommodate non-material changes
and adjustments to any Service; each Trust and each of the Funds recognizes that
isolated requests for changes or adjustments, when combined with other such
requests, may in the aggregate have a material effect. If (i) any
Trust or any Fund requests (A) the addition of a new service, or (B) any
material change or adjustment to any Service, or (ii) in the event that a Fund
materially amends its Policies and Procedures or there is a material change in
Law (as defined below) related to or affecting any Service (collectively, a
“Service
Change”), the parties shall cooperate with one another to implement such
addition, change or adjustment in a manner that minimizes any material adverse
effect on the Trusts or the Funds. The parties shall mutually
determine the date on which such Service Change shall take place, and develop a
written plan to implement such Service Change (a “Service Change
Plan”), as well as any implementation or additional fees and expenses
that may be required to effect such Service Change. Each Service
Change Plan will include applicable obligations for each party and will specify
(A) actions to be taken by parties to agreements, arrangements or understandings
with unaffiliated Persons, and (B) an effective date for the completion of the
Service Change Plan. Notwithstanding the foregoing, Atlantic shall
have no obligation to effect any Service Change unless and until it has agreed
to do so in writing. Any Service Change made by the parties shall
become part of the Services for all purposes under this Agreement
thereafter. For purposes of this Agreement, the foregoing shall be
the “Change Control
Process.”
(d) In
addition to the limitation of liability set forth in Section 3 of
this Agreement, Atlantic shall not be liable to the Trust, the Funds or any
other Person for any failure to provide any Service in the following
circumstances, but only for so long as such circumstances continue (and for a
reasonable period thereafter taking into account the impact that such an
occurrence has on Atlantic’s ability to comply with its obligations under this
Agreement):
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(i)
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if
any relevant condition precedent upon which performance of the relevant
Service depends (“Dependencies”)
are not met and the failure to meet any such Dependencies was not a result
of delay, or failure to provide information or take action, by Atlantic
required to be provided or taken under this
Agreement;
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(ii)
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if
the failure to perform the Services is at the request or with the consent
of the applicable Fund or the
Trust;
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(iii)
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if
the failure to perform the Services results from incorrect or corrupted
information provided by (A) any Person that is not an Affiliate of
Atlantic, that provides services to the Funds (“Third Party Service
Provider”) including, without limitation, any adviser, underwriter
for a Fund, brokers or other intermediaries through which a Fund’s shares
may be sold or distributed (“Fund
Intermediaries”) and any other current or predecessor service
providers to the Trust or the Funds or (B) valuation or market information
providers, pricing services, couriers, software houses, custodians
clearing systems or depositories, provided, that (1) if
any such Person described in clause (B) above is chosen by Atlantic, then
the selection of such Person must have been reasonable under the
circumstances; and (2) in any event, Persons shall be deemed reasonable if
they are selected or retained at the direction of a Fund or a Trust
(“Non-Discretionary
Subcontractors”); and/or
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(iv)
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if
any Law to which Atlantic or any third party is subject prevents or limits
the performance of the duties and obligations of
Atlantic.
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Notwithstanding
the foregoing, Atlantic shall nevertheless use reasonable efforts to provide the
Services while any of the circumstances specified in this Section 2(d)
above subsist, provided
that Atlantic shall not be required to incur any additional costs in doing so
(other than costs that it would have had to incur in the ordinary course of
providing the Services, assuming such circumstances had not so
occurred). If, despite the foregoing, Atlantic incurs any such
additional costs in endeavoring to supply the Services, Atlantic shall promptly
notify the Trusts and the Funds shall, upon receipt of appropriate supporting
materials, reimburse those costs to Atlantic to the extent that they have been
reasonably incurred (and Atlantic used reasonable efforts to mitigate such
costs) or they have been agreed in advance between the parties. For
purposes of this Agreement, (i) the capitalized term “Law” means any
statutes, rules and regulations of any Governmental Authority and applicable
judicial or regulatory interpretations thereof and (ii) “Governmental
Authority” means any court, government department, central bank,
commission, board, bureau, agency, securities or futures industry associations
or other regulatory, self-regulatory, administrative, judicial, executive,
legislative or governmental entity in any country or jurisdiction.
(e) Nothing
contained herein shall be construed to require Atlantic to perform any service
that could cause Atlantic to be deemed an investment adviser for purposes of the
1940 Act or the Investment Advisers Act of 1940, as amended, or that could cause
a Fund to act in contravention of the Prospectus, its Organic Documents or any
Law. Each Trust and each Fund acknowledges and agrees that (i) the
summaries of the Services set out in Appendix B are
intended to define the scope of the Services to be provided; and (ii) subject to
each Board’s right to audit the efficacy of the Atlantic Processes pursuant to
Section 11 of
this Agreement, the procedures, features, functionalities, systems and/or
facilities (“Atlantic
Processes”) that support the provision of the Services by Atlantic or any
Affiliated subcontractor shall be a matter for the sole discretion of
Atlantic. Except as otherwise specifically provided in Appendix B with
respect to the Services, each Fund assumes all responsibility for ensuring that
the Fund complies in all material respects with all applicable requirements of
Law.
(f) Atlantic
shall perform the Services (i) in material compliance with Laws applicable to
Atlantic and (ii) subject to the terms of this Agreement, in observance of the
Policies and Procedures. Without limiting the foregoing, Atlantic
shall promptly after obtaining knowledge thereof use its commercially reasonable
efforts to correct any errors that have been made in connection with its
Services rendered hereunder, including errors of judgment or mistakes of Law, in
accordance with the Trust’s applicable Policies and Procedures; provided, however, that the
liability of Atlantic for any such error shall be subject to the provisions of
Section 3
hereof relating to limitation of liability
(g) Atlantic
shall (i) promptly notify each Trust, each Fund’s compliance department (“Compliance”), if any,
and its legal counsel (“Fund Counsel”), if
any, of any material violation of Law known to Atlantic by any Fund and (ii) at
each meeting of the Board and at such other times as determined appropriate by
Atlantic, notify the Board of any other violation of Law by Atlantic or a Third
Party Service Provider affecting the Funds of which Atlantic becomes aware in
providing the Services, including as a result of information generated by
Atlantic, detected through Atlantic’s internal or external audit procedures or
provided to Atlantic by other service providers to the Trust, the Funds or any
Atlantic subcontractor. In addition, Compliance will receive reports
pursuant to Section
11 of this Agreement.
(h) Prior
to the commencement of Atlantic’s responsibilities under this Agreement with
respect and to the extent applicable to a Fund as to which this Agreement
becomes effective after the Effective Date (a “new Fund”), the
Trusts shall deliver or cause to be delivered over to Atlantic (i) an accurate
list of the record holders of shares of any of the Funds (“Shareholders”),
showing each Shareholder’s address of record, number and Class of shares owned
and whether such shares are represented by outstanding share certificates and
(ii) all Shareholder and Fund records, files, and other materials necessary or
appropriate for proper performance of the functions assumed by Atlantic under
this Agreement.
(i) Atlantic will
appoint one individual with sufficient seniority, experience and authority to
oversee Atlantic’s performance under this Agreement (the Atlantic “Contract Manager”)
and, for periods when any Contract Manager is absent due to illness or vacation,
a deputy for him or her, who will be the primary point of contact for the Trusts
and the Funds. One of Trusts’ officers, or such other Person
designated by the Boards from time to time, shall be the “Contract Manager” for
the Trusts and the Funds. The Contract Managers for each party shall
be responsible for the overall management of this Agreement. Subject
to and as contemplated by this Agreement (including specifically Section 11), the
Contract Managers or their respective deputies will have the authority and be
given the primary responsibility to:
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(i)
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oversee
matters relating to their respective appointing party that are set out in
this Agreement;
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(ii)
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represent
the appointing party in relation to this Agreement and make or communicate
management decisions by or on behalf of the appointing party on day-to-day
issues;
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(iii)
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on
behalf of the appointing party and in relation to this Agreement, receive
and respond to, and deliver, (A) requests for information and reports and
(B) notices and communications, excepting for Instructions and as
otherwise specifically provided in this
Agreement;
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(iv)
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monitor
the appointing party’s compliance with its obligations under this
Agreement;
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(v)
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review
the performance of the Services;
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(vi)
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conduct
preliminary discussions concerning new, or changes to existing Services,
including a determination of whether any such change or addition requires
or does not require a Service Change before
implementation;
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(j) Each party
shall notify the other party promptly of any planned change of its Contract
Manager or any deputy to the Contract Manager.
(k) Each
party shall cause its Contract Manager to attend:
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(i)
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a
quarterly meeting (or as otherwise agreed by the Contract Managers) at
which Atlantic’s performance of the Services shall be reviewed;
and
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(ii)
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a
periodic meeting (as agreed by such persons) at which strategic review and
planning issues in relation to the Services are
discussed.
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Each
party shall provide its Contract Manager with such information and documentation
as may be reasonably necessary for the Contract Manager to carry out its
functions. The Contract Managers shall agree on the form and content
of the minutes of each such meeting or any other report relating to the
foregoing and the Services (i) that may be requested by the Board or (ii) to be
delivered to the Boards.
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SECTION
3. STANDARD OF CARE; INDEMNIFICATION; RELIANCE; AND LIABILITY
LIMITATIONS
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(a) Atlantic
shall be under no duty to take any action except as specifically set forth
herein or as may be specifically agreed to by Atlantic in
writing. Atlantic shall use commercially reasonable judgment and
efforts in rendering the Services; provided, however, that
notwithstanding the foregoing or any other provision of this Agreement to the
contrary, Atlantic shall not be liable to the Trusts, the Funds, any
Shareholders or any other Person for any action or inaction of Atlantic relating
to any event whatsoever in the absence of bad faith, willful misfeasance or
negligence in the performance of Atlantic’s duties or obligations under this
Agreement or Atlantic’s reckless disregard of its duties and obligations under
this Agreement (the “Standard of
Care”).
(b) The
Trust and each of the Funds agrees to indemnify and hold harmless Atlantic, its
employees, agents, subcontractors, directors, officers and managers and any
person who controls Atlantic within the meaning of section 15 of the Securities
Act or section 20 of the Securities Exchange Act of 1934, as amended, (“Atlantic
Indemnitees”) against and from any and all claims, demands, actions,
suits, judgments, liabilities, losses, damages, costs, charges, reasonable
counsel fees and other expenses of every nature and character arising out of or
in any way related to a claim from a third party and arising directly out of (A)
Atlantic’s actions taken or failures to act with respect to a Fund or (B)
incident to the delivery of the Services, except those actions or failures to
act for which Atlantic would be liable under Section
3(a).
(c) Atlantic
agrees to indemnify and hold harmless each Fund, its employees, agents, trustees
and officers against and from any and all claims, demands, actions, suits,
judgments, liabilities, losses, damages, costs, charges, reasonable counsel fees
and other expenses of every nature and character arising out of or in any way
related to a claim from a third party and arising directly out of (A) Atlantic’s
actions taken or failures to act with respect to a Fund or (B) incident to the
delivery of the Services, in either clause (A) or clause (B), solely for which
Atlantic would be liable under Section
3(a).
(d) An
Atlantic Indemnitee shall not be liable for any action taken or failure to act
in good faith reliance upon and consistent with:
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(i)
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the
advice of the Trust, the Funds or of counsel, who may be counsel to the
Trust or the Funds or external counsel to Atlantic, and upon statements of
accountants, brokers and other persons reasonably believed in good faith
by Atlantic to be expert in the matters upon which they are
consulted;
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(ii)
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any
oral instruction that it receives and that it reasonably believes in good
faith was transmitted by the Person or Persons authorized by the Trusts or
the Funds to give such oral instruction. Atlantic shall have no
duty or obligation to make any inquiry or effort of certification of such
oral instruction;
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(iii)
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any
written instruction or certified copy of any resolution of a Board, and
Atlantic may rely upon the genuineness of any such document or copy
thereof reasonably believed in good faith by Atlantic to have been validly
executed;
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(iv)
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any
signature, instruction, request, letter of transmittal, certificate,
opinion of counsel, statement, instrument, report, notice, consent, order,
or other document reasonably believed in good faith by Atlantic to be
genuine and to have been signed or presented by the Trusts or the Funds or
other proper party or parties; or
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(v)
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any
electronic instructions from the Trusts or the Funds in conformity with
security procedures established by Atlantic from time to time in order to
(x)
effect the transfer or movement of cash or shares or (y) transmit
Shareholder information or other
information.
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(e) With
respect to Funds that do not value their assets in accordance with Rule 2a-7
under the 1940 Act, notwithstanding anything to the contrary in this Agreement,
Atlantic shall not be liable to any Trust or any Shareholder of any Fund for (i)
any loss to any Trust or any Fund if a net asset value (“NAV”) difference (as
defined below, an “NAV
Difference”) for which Atlantic would otherwise be liable under this
Agreement is less than or equal to 0.001 (1/10 of 1%) of the Recalculated NAV,
as defined below, or (ii) any loss to a Shareholder of the Funds if (x) the NAV
Difference for which Atlantic would otherwise be liable under this Agreement is
less than or equal to 0.005 (1/2 of 1%) of the Recalculated NAV or (y) the loss
in the Shareholder’s account with the Fund is less than or equal to $25 or such
other amount as may be set forth in the then-current Prospectus or statement of
additional information for the affected Fund. Any loss for which
Atlantic is determined to be liable hereunder pursuant to Section 3(e)(i) shall
be reduced by the amount of gain that inures to the affected Fund. In
addition, with respect to any loss for which Atlantic is determined to be liable
hereunder pursuant to Section 3(e)(ii),
Atlantic shall have the right to debit Shareholder accounts to recover any gains
resulting from an NAV Difference unless an affected Shareholder is no longer a
Shareholder (in which event Atlantic shall be subrogated to any rights to
collect such gain that the Trust has under applicable Law).
(f) For
purposes of this Agreement, (i) an NAV Difference shall mean the difference
between the NAV at which a Shareholder purchase or redemption should have been
effected (“Recalculated NAV”)
and the NAV at which the purchase or redemption was effected, divided by the
Recalculated NAV, (ii) any NAV Difference and any Atlantic liability therefrom
are to be calculated each time a Fund’s (or class’s) NAV is calculated, (iii) in
calculating any NAV Difference for which Atlantic would otherwise be liable
under this Agreement for a particular NAV error, losses and gains of the
affected Fund or class shall be netted and (iv) in calculating any NAV
Difference for which Atlantic would otherwise be liable under this Agreement for
a particular NAV error that continues for a period covering more than one NAV
determination, losses and gains of the affected Fund or Class for the period
shall be netted.
(g) In
order that the indemnification provisions contained in this Section shall apply,
upon the assertion of a claim for which either party may be required to
indemnify the other, the party seeking indemnification shall promptly notify the
other party of such assertion, and shall keep the other party advised with
respect to all developments concerning such claim. The party who may
be required to indemnify shall have the option to participate with the party
seeking indemnification in the defense of such claim or to defend against said
claim in its own name or in the name of the other party. The party
seeking indemnification shall in no case confess any claim or make any
compromise in any case in which the other party may be required to indemnify it
except with the other party’s prior written consent.
(h) Notwithstanding
any other provision of this Agreement to the contrary, neither party to this
Agreement shall be liable to the other party or any indemnitee for any indirect,
special or consequential damages in relation to the subject matter of this
Agreement or under any provision of this Agreement, even if advised of the
possibility of the same.
(i) Atlantic’s
liability to the Trusts and the Funds for any losses or damages in contract,
tort or otherwise, arising out of the subject matter of this Agreement shall be
limited to those actual and direct damages that are reasonably incurred by the
Trusts and the Funds and shall not exceed the fees paid by the Trust and the
Funds in respect of the Services during the twenty four (24) months immediately
preceding the date of the event giving rise to the claim. In any
event, none of the Trusts, the Funds or Atlantic will be liable for: (i)
special, indirect, incidental, consequential or punitive damages of any Person,
including, without limitation, any loss of profits, loss of business,
interruption of business or third parties damages; (ii) any claim arising from
the Trust’s or the Funds’ failure to perform their respective responsibilities
as specified in this Agreement; (iii) any claim against any other party
(including, without limitation, any Shareholder); or (iv) any claim resulting
from the failure of any third party communication or transmission devices, but
only to the extent beyond such party’s reasonable control. This Section 3 states
Atlantic’s sole liability and the Trusts’ and the Funds’ exclusive remedy with
respect to the services provided hereunder.
SECTION
4. COMPENSATION AND EXPENSES
(a) In
consideration of the Services provided by Atlantic pursuant to this Agreement,
the Trusts and the Funds shall pay Atlantic the fees set forth in a separate
document agreed to from time to time by the parties (the “Fee
Schedule”). These fees shall be payable monthly in arrears on
the second business day of each calendar month for services performed under this
Agreement during the prior calendar month. Reimbursement shall be
payable monthly in arrears on the second business day of each calendar month for
services performed under this Agreement during the prior calendar
month.
If fees
begin to accrue in the middle of a month or if this Agreement terminates before
the end of any month, all fees for the period from that date to the end of that
month or from the beginning of that month to the date of termination, as the
case may be, shall be prorated according to the proportion that the period bears
to the full month in which the effectiveness or termination
occurs. Upon the termination of this Agreement with respect to a
Fund, the Fund shall pay to Atlantic such compensation as shall be payable prior
to the effective date of termination.
(b) Notwithstanding
anything in this Agreement to the contrary, Atlantic and its Affiliated persons
may receive compensation or reimbursement from the Trust and the Funds with
respect to (i) the provision of services not covered by this Agreement on behalf
of the Funds in accordance with any Service Plan, (ii) the provision of
shareholder support or other services not covered by this Agreement, and (iii)
service as a director, manager or trustee of a Fund.
(c) In
connection with the services provided by Atlantic pursuant to this Agreement,
each Trust, on behalf of each applicable Fund, agrees to reimburse Atlantic for
the expenses set forth in the Fee Schedule. In addition, each Trust,
on behalf of the applicable Fund, shall reimburse Atlantic for all expenses and
employee time (at 150% of salary) attributable to any review, outside of routine
and normal periodic reviews or other reviews provided for under this Agreement,
of the Funds’ accounts and records by the Funds’ independent accountants or any
regulatory body of which the Funds are first notified and that are not
attributable to any negligent action or inaction of Atlantic.
(d) Atlantic
may, with respect to questions of law relating to its services hereunder, and
with the Trusts’ consent, apply to and obtain the advice and opinion of counsel
to the Funds. The costs of any such advice or opinion of counsel to
the Funds shall be borne by the Funds, and Atlantic shall notify the Trusts of
any such advice and shall cooperate with the Trusts and the Funds to ensure that
such costs are reasonable.
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SECTION
5. EFFECTIVENESS, DURATION, TERMINATION AND
ASSIGNMENT
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(a) This
Agreement shall become effective as between Atlantic and the Trust on the
Effective Date. This Agreement shall have a term beginning on the
Effective Date and ending on December 31, 2012. This Agreement shall
become effective with respect to a new Fund on the date of the commencement of
operations of the Fund. Upon effectiveness of this Agreement, it
shall supersede all previous agreements between the parties hereto covering the
subject matter hereof insofar as such Agreement may have been deemed to relate
to Atlantic’s provision of Services to the Trusts or the Funds.
(b) This
Agreement shall continue in effect (i) until terminated in its entirety or (ii),
with respect to any Fund or with respect to any one or more of the Services
covered by Appendix B, as
applicable, provided to any one or more of the Funds, until terminated as to a
Fund or a Service provided to a Fund.
(c) This
Agreement may be terminated (A) in its entirety or (B) with respect to any Fund
or with respect to any one or more of the Services covered by Appendix B, as
applicable, provided to any one or more of the Funds (a “Partial
Termination”), without the payment of any penalty:
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(i)
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with
or without cause, at any time, by either party on the date specified in a
written notice to the other party provided not less than 120 days prior to
the termination date specified in the notice; provided that in the
event a Fund gives notice of a Partial Termination, Atlantic shall have
thirty (30) days to deliver notice that it intends to terminate any
remaining portion, or the entirety, of this Agreement (and any such notice
from Atlantic shall be deemed to have been given as of the date of the
original notice from the Fund and with the same effective date as that set
forth in such notice from the Fund); provided further, that
in the event Atlantic gives notice of termination or of a Partial
Termination, the applicable Board may delay the termination or Partial
Termination for up to sixty (60) days upon written notice to Atlantic and
a finding that doing so is in the best interest of shareholders of the
affected Fund or Funds; and
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(ii)
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for
cause at any time by the non-breaching party on at least sixty (60) days’
written notice thereof to the other party, if the other party has
materially breached any of its obligations hereunder including, with
respect to Atlantic, the failure by Atlantic to act consistently with the
standard of care set forth in Section 3(a);
provided,
however, that (i) the termination notice shall describe the breach,
and (ii) no such termination shall be effective if, with respect to any
breach that is capable of being cured prior to the date set forth in the
termination notice, the breaching party has cured such breach to the
reasonable satisfaction of the non-breaching
party.
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(d) Upon
notice of termination by either party of this Agreement, in its entirety or with
respect to any Fund or any Service provided to any Fund, Atlantic shall promptly
transfer to any successor service providers the original or copies of all books
and records maintained by Atlantic under this Agreement including, in the case
of records maintained on computer systems, copies of such records in
commercially reasonable, machine-readable form, and shall cooperate with, and
provide reasonable assistance to, the successor service provider(s) in the
establishment of the books and records necessary to carry out the successor
service providers’ responsibilities. Should the Trusts or the Funds
exercise their right to terminate this Agreement, the Trusts and the Funds shall
reimburse Atlantic for Atlantic’s reasonable costs associated with the copying
and movement of records and material to any successor person and providing
assistance to any successor person in the establishment of the accounts and
records necessary to carry out the successor’s responsibilities (“termination costs”);
provided, however,
that, notwithstanding anything herein to the contrary, the Trusts and the Funds
shall have no obligation to reimburse Atlantic for its costs if the Trusts and
the Funds terminate this Agreement pursuant to clause (ii) of subsection (c)
above or if Atlantic terminates this Agreement pursuant to clause (i) of
subsection (c) above.
(e) The
provisions of Sections
3, 4,
5, 7, 13 and 15 shall survive any
termination of this Agreement.
(f) Except
as otherwise provided in this Agreement, neither this Agreement nor any rights
or obligations under this Agreement may be assigned by any party without the
written consent of the other party. This Agreement shall inure to the
benefit of and be binding upon the parties and their respective permitted
successors and assigns. Subject to prior notice to the Trust,
Atlantic may, without further consent on the part of the Trust or the Funds, (i)
assign this agreement to any Affiliate of Atlantic or (ii) subcontract for the
performance hereof with any entity, including an Affiliate of Atlantic; provided however, that
Atlantic shall be as fully responsible to the Funds for the acts and omissions
of any assignee or subcontractor as Atlantic is for its own acts and omissions
under this Agreement and that no such assignment or subcontract will increase
the compensation payable by the Funds to Atlantic under this Agreement for the
Services. Notwithstanding the foregoing, (A) Atlantic shall not be
liable for the acts or omissions of any Non-Discretionary Subcontractors and (B)
Atlantic may subcontract for the performance hereof with Atlantic Accounting
Services, LLC without prior notice; provided however, that
Atlantic shall be as fully responsible to the Funds for the acts and omissions
of Atlantic Accounting Services, LLC as Atlantic is for its own acts and
omissions and that no such subcontract will increase the compensation payable by
the Funds to Atlantic under this Agreement for the Services.
SECTION
6. ADDITIONAL FUNDS OR CLASSES OF SHARES
In the
event that any Trust or any Fund establishes one or more series or classes of
shares after the effectiveness of this Agreement for which the applicable Trust
or the applicable Fund requests Atlantic to provide the Services and Atlantic
agrees to do so, each such series or class of shares shall become a Fund, or
class of shares of a Fund (if applicable), under this Agreement and shall be
added to the Fee Schedule.
SECTION
7. RECORDKEEPING; PROPRIETARY INFORMATION;
CONFIDENTIALITY
(a) Atlantic
shall prepare and maintain on behalf of the Funds the books and records detailed
in the Appendices and such other records as are agreed from time to time in
writing by Atlantic and the Trusts (the “Fund
Records”). The books and records maintained by Atlantic shall
be prepared, maintained and, subject to Section 7(d) below,
preserved by Atlantic in such form, for such periods and in such locations as
may be required by the Laws applicable to the Funds. The Fund Records
in Atlantic’s possession shall be the property of the Funds.
(b) Subject
to Atlantic’s then-current, reasonable confidentiality, security and data
protection procedures, each Fund and its authorized representatives and any
Governmental Authority with jurisdiction over the Funds shall have reasonable
access to the Fund Records at all times during Atlantic’s normal business
hours. Upon the reasonable advance request of the Funds, the Trusts
or Compliance, copies of Fund Records shall be provided by Atlantic to the
applicable Fund or its authorized representatives, provided that the applicable
Trust or the applicable Fund shall pay Atlantic’s reasonable costs of copying
the Fund Records.
(c) If
Atlantic receives a request or demand from a third party, including a
Governmental Authority with jurisdiction over a Fund, to inspect any Fund
Records, Atlantic will endeavor to notify the applicable Trust and the Fund and
to secure instructions from the Trust, the Fund or an authorized representative
about such inspection. Atlantic shall abide by such instructions for
granting or denying the inspection; provided, that Atlantic may
grant the inspection without instructions or in contravention of instructions if
Atlantic is advised by counsel to Atlantic or the Fund that failure to do so is
substantially likely to result in liability to Atlantic; and provided, further, that in
such event, Atlantic shall endeavor promptly to advise the Trust of such
contrary advice, to the extent practicable in advance of any
inspection.
(d) Upon
termination of this Agreement, Atlantic shall, subject to payment of all
undisputed amounts due to Atlantic hereunder and at the expense and direction of
the Funds, transfer to the Funds or any successor service provider all Fund
Records in the electronic or other medium in which such material is then
maintained by Atlantic.
(e) Each
Trust and each Fund acknowledges that the information provided by Atlantic
pursuant to Section
11 of this Agreement, databases, computer programs, screen formats,
report formats, interactive design techniques, and documentation manuals
maintained by Atlantic on databases under the control and ownership of Atlantic
or a third party retained by Atlantic constitute copyrighted, trade secret, or
other proprietary information (collectively, “Proprietary
Information”) of substantial importance to Atlantic or the third
party. Each Trust and each Fund agrees to treat all Proprietary
Information as proprietary to Atlantic and further agrees that it shall (i)
maintain as confidential any Proprietary Information and (ii) cause its
employees and other officers, directors and representatives to treat as
confidential any Proprietary Information, and Atlantic may request and shall
receive from any such persons an executed acknowledgement by them of such
obligations.
(f) The
Trusts and the Funds, on the one hand, and Atlantic, on the other hand, (for
purposes of Sections
7(f) and 7(g), each a “Receiving Party”)
agree to keep confidential all information disclosed by the other party (for
purposes of Sections
7(f) and 7(g), each a “Disclosing Party”),
including, without limitation, all forms and types of financial, business,
marketing, operations, technical, economic, engineering and personnel
information of the Disclosing Party, whether tangible or
intangible.
(g) Notwithstanding
any provision of this Agreement to the contrary, the Trusts, the Funds and
Atlantic agree that the following information shall not be deemed confidential
information: (i) information that was known to the Receiving Party before
receipt thereof from or on behalf of the Disclosing Party; (ii) information that
is disclosed to the Receiving Party by a third Person who has a right to make
such disclosure without any obligation of confidentiality to the Party seeking
to enforce its rights under this Section; (iii) information that is or becomes
generally known in the trade without violation of this Agreement by the
Receiving Party; or (iv) information that is independently developed by the
Receiving Party or its employees or affiliates without reference to the
Disclosing Party’s information.
(h) Notwithstanding
any provision of this Agreement to the contrary, Atlantic may: (i) provide
information to Atlantic’s counsel and to persons engaged by Atlantic, the Trusts
or the Funds to provide Services; (ii) provide information consistent with
operating procedures that are customary with respect to the services in the
industry; (iii) identify each Trust and each Fund as a client of Atlantic for
Atlantic’s sales and marketing purposes; and (iv) provide information as
approved by a Trust, a Fund or its authorized representative.
(i) Atlantic
acknowledges that certain Shareholder information made available by the Trusts
and the Funds to Atlantic or otherwise maintained by Atlantic under this
Agreement may be deemed nonpublic personal information under the
Xxxxx-Xxxxx-Xxxxxx Act and other applicable privacy laws (collectively, “Privacy
Laws”). Atlantic agrees (i) not to disclose or use such
information except as required to carry out its duties under the Agreement or as
otherwise permitted by law in the ordinary course of business; (ii) to limit
access to such information to authorized representatives of Atlantic and the
Funds; (iii) to establish and maintain reasonable physical, electronic and
procedural safeguards to protect against access to such information by
unauthorized persons; and (iv) to cooperate with the Funds and provide
reasonable assistance in ensuring compliance with such Privacy Laws to the
extent applicable to either or both of the parties, including to the extent
Atlantic maintains or otherwise possesses consumer report information for a
business purpose, the proper disposal of such information.
(j) Atlantic
shall establish and maintain commercially reasonable facilities and procedures
for safekeeping of all records maintained by Atlantic pursuant to this
Agreement.
SECTION
8. REPRESENTATIONS AND WARRANTIES
(a) Representations and
Warranties of Atlantic. Atlantic represents and warrants to
the Trust and the Funds that:
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(i)
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It
is a limited liability company duly organized and existing and in good
standing under the laws of the State of
Delaware;
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(ii)
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It
is empowered under Law applicable to Atlantic and by its Certificate of
Formation pursuant to which it was formed as a limited liability company
in the State of Delaware, and its limited liability company agreement, to
enter into this Agreement and perform its duties under this
Agreement;
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(iii)
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All
requisite limited liability company proceedings have been taken to
authorize it to enter into this Agreement and perform its duties under
this Agreement;
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(iv)
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It
has access to the necessary facilities, equipment, and personnel to
perform its duties and obligations under this
Agreement;
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(v)
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This
Agreement, when executed and delivered, will constitute a legal, valid and
binding obligation of Atlantic, enforceable against Atlantic in accordance
with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and
remedies of creditors and secured
parties.
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(b) Representations and
Warranties of the Trusts. Each Trust, severally and not
jointly, represents and warrants to Atlantic that:
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(i)
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It
is a business trust duly organized and existing in good standing under the
laws of the Commonwealth of
Massachusetts.
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(ii)
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It
is empowered under Law applicable to each Fund and by its Organic
Documents to enter into this Agreement and perform its duties under this
Agreement.
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(iii)
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All
requisite trust proceedings have been taken to authorize it to enter into
this Agreement and perform its duties under this
Agreement.
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(iv)
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It
is and will remain an open-end management investment company registered
under the 1940 Act.
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(v)
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This
Agreement, when executed and delivered, will constitute a legal, valid and
binding obligation of the Trust, enforceable against the Trust in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
the rights and remedies of creditors and secured
parties.
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(vi)
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A
registration statement under the Securities Act is currently effective and
will remain effective, and appropriate state securities law filings have
been made and will continue to be made, with respect to all shares of the
Funds and Classes of the Trust being offered for
sale.
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SECTION
9. FORCE MAJEURE
Atlantic
shall not be responsible or liable for any failure or delay in performance of
its obligations under this Agreement arising out of or caused, directly or
indirectly, by circumstances beyond its reasonable control including, without
limitation, acts of civil or military authority, national emergencies, labor
difficulties, fire, mechanical breakdowns, flood or catastrophe, acts of God,
insurrection, war, riots or failure of the mails, transportation, communication
or power supply. In addition, to the extent Atlantic’s obligations
hereunder are to oversee or monitor the activities of third parties, Atlantic
shall not be liable for any failure or delay in the performance of Atlantic’s
duties caused, directly or indirectly, by the failure or delay of such third
parties in performing their respective duties or cooperating reasonably and in a
timely manner with Atlantic.
SECTION
10. ACTIVITIES OF ATLANTIC
Except to
the extent necessary to perform Atlantic’s obligations under this Agreement,
nothing herein shall be deemed to limit or restrict Atlantic’s right, or the
right of any of Atlantic’s managers, officers or employees who also may be a
trustee, officer or employee of the Funds, or Persons who are otherwise
affiliated persons of the Funds 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 corporation, trust, firm, individual, association or other
entity.
SECTION
11. AUDIT RIGHTS; COOPERATION WITH COMPLIANCE, OTHER SERVICE
PROVIDERS AND INDEPENDENT ACCOUNTANTS
(a) Upon
a Fund’s reasonable request and subject to Atlantic’s then-current, reasonable
confidentiality, security and data protection procedures, Atlantic will permit
authorized representatives of the Fund to visit with the appropriate personnel
at Atlantic (or such Affiliated subcontractors) in order to conduct due
diligence on, audit, inspect or otherwise examine the Services Operations and
the Atlantic Processes (collectively, “Reviews”). The
Trusts and the Funds agree that a Review may cover the entire scope of the
Services Operations and will occur at Atlantic’s (or such Affiliated
subcontractors’) facilities upon reasonable advance notice and will be scheduled
to occur during regular business hours. The expenses incurred by a
Person conducting a Review shall not be borne by Atlantic. The
parties will cooperate to minimize the disruption associated with Reviews,
including the scope and timing of such Reviews. On-site Reviews of
Atlantic (or such Affiliated subcontractors) will be limited to two (2) Reviews
per calendar year, except if and to the extent that material service,
information security or compliance issues with respect to Atlantic’s (or such
Affiliated subcontractors’) operations related to the Services (“Services Operations”)
merit additional Reviews in the reasonable opinion of Compliance or a Review is
requested in writing by an Adviser to a Fund; for the avoidance of doubt, a
Review shall not include routine discussions about scheduling Reviews or other
discussions between the Contract Managers or their deputies pursuant to Section
2.
(b) Atlantic
shall provide certifications about Atlantic’s Services Operations and such other
matters in such form as may be mutually agreed by the parties with the frequency
and to the person(s) as may be mutually agreed by the parties taking into
account industry standards for such certifications.
(c) If
Atlantic is notified in writing by a Governmental Authority that Atlantic (or
any Affiliated assignee or subcontractor of a material portion of the Services)
is in violation of any Law applicable to Atlantic (or such assignee or
subcontractor) and related to the Services, Atlantic shall:
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(i)
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determine
whether such Law applies to Atlantic (or such assignee or subcontractor)
and whether Atlantic (or such assignee or subcontractor) is in violation
of such applicable Law;
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(ii)
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provide
Compliance with a report identifying the cause of, and the intended
procedure/steps for correcting or resolving, such violation and the
timeline for completing such
procedure/steps;
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(iii)
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with
respect to any such violation that is material, and if requested by
Compliance, meet with Compliance or an executive officer of the Trust or
the Fund to discuss such violation and such intended procedure/steps and
timeline; and
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(iv)
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implement
the intended procedure/steps for correcting such
failure.
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Atlantic
shall notify Compliance upon completing the intended procedure/steps for
correcting any such failure or violation.
(d) Subject
to the provisions of this Agreement (including the Fee Schedule, the Change
Control Process and Section 7 related to
confidentiality), Atlantic shall provide such additional cooperation or
information (to the extent not covered by the foregoing provisions of this Section 11) with
respect to Atlantic, the Atlantic Processes and the Services Operations as the
Trusts, Compliance and each Fund’s independent public accountants may reasonably
request.
(e) Notwithstanding
any other provision of this Agreement to the contrary, to the extent Atlantic is
under this Agreement (including the Appendices) required to deliver or provide
data, information or reports to the Funds or Compliance, Atlantic shall be
deemed to have satisfied any such obligation if it has provided commercially
reasonable access to a single database per Service containing the required data,
information or report, which access may be granted subject to reasonable
confidentiality and security requirements.
SECTION
12. SERVICE DAYS
Nothing
contained in this Agreement is intended to or shall require Atlantic, in any
capacity under this Agreement, to perform any functions or duties on any day
other than a business day of a Fund. Functions or duties normally
scheduled to be performed on any day, which is not a business day of a Fund,
shall be performed on, and as of, the next business day, unless otherwise
required by law.
SECTION
13. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The
trustees and officers of the Trusts, the officers of the Funds and the
Shareholders shall not be liable for any obligations of the Trusts or of the
Funds under this Agreement, and Atlantic agrees that, in asserting any rights or
claims under this Agreement, it shall look only to the assets and property of
the Fund to which Atlantic’s rights or claims relate in settlement of such
rights or claims, and not to the trustees or officers of the Trust, the officers
of the Funds or the Shareholders.
SECTION
14. TAXES
Atlantic
shall not be liable for any taxes, assessments or governmental charges that may
be levied or assessed on any basis whatsoever in connection with the Funds or
any Shareholder or any purchase of shares, excluding taxes assessed against
Atlantic for compensation received by it under this Agreement, unless the taxes,
assessments or governmental charges are the result of acts or failures to act
for which Atlantic would be liable under Section
3(a).
SECTION
15. MISCELLANEOUS
(a) Except
for the Fee Schedule to add new Funds and Classes in accordance with Section 6, no
provisions of this Agreement may be amended or modified in any manner except by
a written agreement properly authorized and executed by both parties
hereto.
(b) This
Agreement shall be governed by, and the provisions of this Agreement shall be
construed and interpreted under and in accordance with, the laws of the State of
New York without regard to its principles of conflicts of law except Sections
5-1401 and 5-1402 of the New York General Obligations Law.
(c) This
Agreement constitutes the entire agreement between the parties hereto and
supersedes any agreement executed prior to the date hereof with respect to the
subject matter hereof (i.e., the provision of
Services by Atlantic to the Funds), whether oral or written.
(d) This
Agreement may be executed by the parties hereto on any number of counterparts,
and all of the counterparts taken together shall be deemed to constitute one and
the same instrument.
(e) 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, 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 provision held to be illegal or invalid.
(f) Section
headings in this Agreement are included for convenience only and are not to be
used to construe or interpret this Agreement.
(g) Notices,
requests, instructions and communications received by the parties at their
respective principal places of business, or at such other address as a party may
have designated in writing, shall be deemed to have been properly
given.
(h) Notwithstanding
any other provision of this Agreement, the parties agree that the assets and
liabilities of each Fund are separate and distinct from the assets and
liabilities of each other Fund and that no Fund shall be liable or shall be
charged for any debt, obligation or liability of any other Fund, whether arising
under this Agreement or otherwise.
(i) No
affiliated person, employee, agent, director, officer or manager of Atlantic
shall be liable at law or in equity for Atlantic’s obligations under this
Agreement.
(j) Each
of the undersigned warrants and represents that they have full power and
authority to sign this Agreement on behalf of the party indicated and that their
signature will bind the party indicated to the terms hereof.
(k) Notwithstanding
any provision of this Agreement to the contrary, Atlantic shall not be obligated
to provide legal representation to any Trust or any Fund, including through the
use of attorneys that are employees of Atlantic.
(l) Each
Appendix to this Agreement is part of the Agreement. In the event of
any conflict between this Agreement and any Appendices, this Agreement shall
control. To the extent that Atlantic is required to deliver a report
to a Trust or a Fund under this Agreement, such obligation cannot be discharged
by Atlantic delivering such report to itself or to an Affiliated subcontractor
(including itself or such Affiliated subcontractor acting in any capacity under
this Agreement other than in its capacity in delivering such
report).
(m) Except
as specifically set forth in Sections 3(b) and
(c), there are
no third party beneficiaries of this Agreement.
[Remainder
of Page Intentionally Blank]
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed in their names and on
their behalf by and through their duly authorized officers, as of the day and
year first above written.
THE
XXXXXX MANAGED EQUITY TRUST
By: /s/ Xxxxx X.
Xxxxxxx
THE
XXXXXX MANAGED INCOME TRUST
By: /s/ Xxxxx X.
Xxxxxxx
ATLANTIC
FUND ADMINISTRATION, LLC
By: /s/ Xxxxxx
Xxxx
Xxxxxx
Xxxx
President
APPENDIX
A: FUNDS OF THE TRUSTS
The Xxxxxx Managed Equity
Trust
Fund
Name Class
Name CUSIP Symbol
Xxxxxx
International Blue Chip Equities
Fund Standard
Shares 00000X000
WIBCX
Xxxxxx
Selected Blue Chip Equities
Fund
Standard
Shares 00000X000
WSBEX
Xxxxxx
Major Blue Chip Equities
Fund Standard
Shares 00000X000
WQCEX
The Xxxxxx Managed Income
Trust
Fund
Name Class
Name CUSIP Symbol
Xxxxxx
Total Return Bond
Fund Standard
Shares 982349300
WTRBX
Xxxxxx
Current Income
Fund
Standard
Shares 982349607
WCIFX
APPENDIX
B: SERVICES
Pursuant
to the Services Agreement (the “Agreement”) by and
among The Xxxxxx Managed Equity Trust, the Xxxxxx Managed Income Trust and
Atlantic Fund Administration, LLC, Atlantic shall provide the following
services, subject to the terms and conditions of the Agreement and this Appendix
B. Capitalized terms used herein shall have the meanings ascribed
thereto in the Agreement:
Fund Accounting
Services
1. Services
Related to Calculation of Accounting Items, Determination of NAV and Maintenance
of a General Ledger (“Accounting Services”)
Atlantic
shall:
(a) Calculate
the net asset value per Share (“NAV”) on each Fund business day or with such
frequency as is required to facilitate trading of the Shares, but no more
frequently than once each Fund business day.
(b) Calculate
each item of income, expense, deduction, credit, gain and loss, if any, and
process each Fund’s stated expense ratio as required by the Trust and the
Adviser and in conformance with generally accepted accounting principles
(“GAAP”), the SEC’s Regulation S-X (or any successor regulation) and the
Internal Revenue Code of 1986, as amended (or any successor laws) (the
“Code”).
(c) Allocate
income and expense and calculate the net asset value per share (“NAV”) of each
class of shares offered by each Fund in accordance with the relevant provisions
of the applicable Prospectus of each Fund and applicable regulations under the
1940 Act.
(d) Calculate
the “SEC yield” and money market fund seven and thirty day yields for the Fund
and each Class thereof, as applicable and, subject to the Change Control
Process, such other measures of performance as may be requested by the Trust or
an Adviser.
(e) Prepare
and record once daily, as of the time when the NAV of a Fund is calculated or at
such other time as otherwise directed by the Trust, either (A) a valuation of
the assets and liabilities of the Fund (unless otherwise specified in or in
accordance with the Trust’s Portfolio Securities Valuation Procedures, based
upon the use of third party securities pricing services normally used and
contracted for this purpose by Atlantic in the case of securities for which
information and market price or yield quotations are readily available, and
based upon evaluations conducted in accordance with the Trust’s instructions in
the case of all other assets and liabilities) or (B)
periodic calculation confirming that the market value of the Fund’s
assets does not deviate from the amortized cost value of those assets by more
than a specified percentage.
(f) Maintain
each Fund’s general ledger and record all income, gross expenses, capital share
activity and cash and security transactions of each Fund.
2. Services
Related to Reporting of Data and Provision of Other Information
Atlantic
shall:
(a) Provide
the Trust and such other persons as the Trust may direct with standard fund
reporting available through Atlantic’s Internet reporting application or other
delivery arrangements used from time to time by Atlantic.
(b) Provide
appropriate records to assist each Fund’s independent accountants and such other
persons as the Trust may direct.
(c) Provide
information typically supplied in the investment company industry to each Fund’s
transfer agent.
(d) Transmit
the NAVs and dividend factors of the Fund to such persons as directed by the
Trust or the Adviser.
(e) Provide
the Trust and such other persons as the Trust may direct with the data requested
by the Trust that is required to update the Registration Statement.
(f) Provide
the Trust, the Adviser, the independent accountants for the Fund, and such other
persons as the Trust may direct data maintained by Atlantic requested
with respect to the preparation of the Fund’s income, excise and other tax
returns.
(g) Provide
the Trust, the Adviser, the Public Accountants, and such other persons as the
Trust may direct, and explain as required, unadjusted Fund data directly from
the portfolio accounting system for any Fund business day and other data
reasonably requested for the preparation of the Fund’s semi-annual and annual
financial statements.
(h) Transmit
to and receive from each Fund’s transfer agent appropriate data to reconcile
Shares outstanding and other data.
(i) Transmit
to and receive from each Fund’s custodian appropriate data to reconcile daily
cash.
3. Services
Related to Distributions and Reconciliation of Data
Atlantic
shall:
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(a)
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Process
all distributions as directed by the Trust or its
agents.
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(b)
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Reconcile
cash and portfolio positions daily with each Fund’s
custodian.
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(c)
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Verify
receipt of and review for reasonableness investment trade instructions
when received from an Adviser.
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(d)
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Maintain
individual ledgers and historical tax lots for each
security.
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(e)
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Distribute
net asset values and yields to FINRA; and, as agreed, other reporting
agencies.
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4. Services
Related to Recordkeeping and Reporting
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Atlantic
shall:
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(a) Prepare
and maintain on behalf of the Trust the following books and records of each
Fund, and each Class thereof, pursuant to Rule 31a-1 under the 1940 Act (the
“Rule”):
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(i)
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Journals
containing an itemized daily record in detail of all purchases and sales
of securities, all receipts and disbursements of cash and all other debits
and credits, as required by subsection (b)(1) of the
Rule;
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(ii)
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General
and auxiliary ledgers reflecting all asset, liability, reserve, capital,
income and expense accounts, as required by subsection (b)(2) of the Rule
(but not including the ledgers required by subsection (b)(2)(iv) of the
Rule);
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(iii)
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Separate
ledger accounts required by subsection (b)(2)(ii) and (iii) of the
Rule;
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(iv)
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A
record of each brokerage order given by or on behalf of any Fund for, or
in connection with, the purchase or sale of securities, and all other
portfolio purchases or sales, as required by subsections (b)(5) and (b)(6)
of the Rule;
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(v)
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A
record of all options, futures, swaps or other derivatives, if any, in
which the Funds have any direct or indirect interest or which the Fund has
granted or guaranteed and a record of any contractual commitments to
purchase, sell, receive or deliver any property, as required by subsection
(b)(7) of the Rule;
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(vi)
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A
monthly trial balance of all ledger accounts (except shareholder accounts)
as required by subsection (b)(8) of the Rule;
and
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(vii)
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All
other records required by the Rule or any successor rule or pursuant to
interpretations thereof to be kept by open-end management investment
companies, but limited to those provisions of the Rule applicable to
portfolio transactions and as agreed upon between the parties
hereto.
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SCHEDULE
A: FEE SCHEDULE
[INTENTIONALLY
DELETED]
