AMENDMENT TO ADMINISTRATION AGREEMENT
Exhibit (h)(3)
AMENDMENT TO ADMINISTRATION AGREEMENT
This Amendment to the Administration Agreement is made as of May 22, 2018 (the “Amendment”) by and between State Street Bank and Trust Company, a Massachusetts trust company (the “Administrator”) and IVA Fiduciary Trust, a Massachusetts business trust (the “Trust”). Capitalized terms used in this Amendment without definition shall have the respective meanings ascribed to such terms in the Agreement (as defined below).
WHEREAS, the Administrator and the Trust entered into an Administration Agreement dated as of August 21, 2008 (as amended, supplemented, restated or otherwise modified from time to time, the “Agreement”); and
WHEREAS, the parties hereto wish to amend the Agreement as set forth below.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree to amend the Agreement, pursuant to the terms thereof, as follows:
| 1. |
The Agreement is hereby amended as follows: |
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| A. |
Section 5 a. of the Agreement is hereby amended and restated as follows: |
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| “a. | Prepare
for the review by designated officer(s) of the Trust financial information regarding
the Fund(s) that will be included in the Trust’s semi-annual and annual shareholder
reports, and other quarterly reports (as mutually agreed upon), including tax footnote
disclosures where applicable;” |
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| B. |
Section 5 c. of the Agreement is hereby amended and restated as follows: |
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| “c | Prepare
for the review by designated officer(s) of the Trust financial information required
by Form N-1A, proxy statements and such other reports, forms or filings as may be
mutually agreed upon;” |
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| C. |
Section 5 l. of the Agreement (and the heading immediately preceding it) is hereby
amended and restated as follows: |
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| “[Reserved] | ||||||
| l. | [Reserved].” | |||||
| D. |
Section 5 o. of the Agreement is hereby amended and restated as follows: |
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| “o. | Prepare
for filing with the SEC the following documents: Form N-CSR, Form N-PX and all amendments
to the Registration Statement, including |
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updates
of the Prospectus and SAI for the Fund(s) and any sticker supplements to the Prospectus
and SAI for the Fund(s);” |
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| E. |
Section 5 y. and 5 z. of the Agreement are hereby amended and restated as follows: |
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| “y. | Coordinate
Form 1099-DIV mailings; |
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| z. | Review
and sign off on annual minimum distribution calculations (income and capital gain)
prior to their declaration; and” |
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| F. | A new Section 5 aa. of the Agreement and a heading immediately preceding it are hereby
added to the Agreement immediately following Section 5 z., as follows: |
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“Form N-PORT and Form N-CEN Support Services and Quarterly Portfolio of
Investments Services |
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| aa. | Perform
the Services as defined and described in Schedule B6 of the Agreement (solely with
respect to the Trust and the Funds listed on Annex 1 of Schedule B6, as such Annex
I may be amended, supplemented, restated or otherwise modified from time to time,
subject to the additional terms and conditions set forth therein).” |
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| G. | The third
paragraph of Section 6 of the Agreement is hereby amended and restated as follows: |
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“The
Trust will bear all expenses that are incurred in its operation and not specifically
assumed by the Administrator. For the avoidance of doubt, Trust expenses not assumed
by the Administrator include, but are not limited to: organizational expenses; cost
of services of independent accountants and outside legal and tax counsel (including
such counsel’s review of the Registration Statement, Form N-CSR, Form N-Q or
Form N-PORT (as applicable), Form N-PX, Form N-MFP, Form N-SAR or Form N-CEN (as
applicable), proxy materials, federal and state tax qualification as a regulated
investment company and other notices, registrations, reports, filings and materials
prepared by the Administrator under this Agreement); cost of any services contracted
for by the Trust directly from parties other than the Administrator; cost of trading
operations and brokerage fees, commissions and transfer taxes in connection with
the purchase and sale of securities for the Trust; investment advisory fees; taxes,
insurance premiums and other fees and expenses applicable to its operation; costs
incidental to any meetings of shareholders including, but not limited to, legal
and accounting fees, proxy filing fees and the costs of preparation (e.g., typesetting,
XBRL-tagging, page changes and all other print vendor and XXXXX charges, collectively
referred to herein as “Preparation”), printing, distribution and mailing
of any proxy materials; costs incidental to Board meetings, including fees and expenses
of Board members; the salary and expenses of any officer, director\trustee or employee
of the Trust; costs of Preparation, printing, distribution and |
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mailing, as
applicable, of the Trust’s Registration Statements and any amendments and supplements
thereto and shareholder reports; cost of Preparation and filing of the Trust’s
tax returns, Form N-1A, Form N-CSR, Form N-Q or Form N-PORT (as applicable), Form
N-PX, Form N-MFP and Form N-SAR or Form N-CEN (as applicable), and all notices,
registrations and amendments associated with applicable federal and state tax and
securities laws; all applicable registration fees and filing fees required under
federal and state securities laws; the cost of fidelity bond and D&O/E&O
liability insurance; and the cost of independent pricing services used in computing
the Fund(s)’ net asset value.” |
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H. Section
7 b. is hereby renamed Section 7.c., and a new paragraph “b.” is hereby
added to Section 7 of the Agreement immediately following paragraph “7.a.”
as follows: |
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“b. Pursuant to other agreements now or at any time in effect between the Trust (or
its investment manager or investment advisor, on its behalf) and State Street Bank
and Trust Company or its affiliates (the “Other State Street Agreements”)
in any capacity other than as Administrator hereunder (in such other capacities,
“State Street”), State Street may be in possession of certain information
and data relating to the Trust and/or the Fund(s) that is necessary to provide the
Services, including Form N-PORT Support Services. The Trust hereby acknowledges
and agrees that this Section 7 of the Agreement serves as its consent and instruction,
or Proper Instruction, as the case may be, for itself and on behalf of the Fund(s)
under and pursuant to such Other State Street Agreements for State Street to provide
or otherwise make available (including via platforms such as xx.xxxxxxxxxxx.xxx)
to the Administrator, Trust and Fund(s) information such as net asset values and
information relating to the net assets of the Fund(s), holdings and liquidity reports,
registration titles, market value and other information and data related to the
Fund(s). |
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I. A new
Schedule B6 (including Annex 1 thereto) of the Agreement is hereby added to the
Agreement as set forth in Exhibit 1 to this Amendment. |
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| 2. | The provisions
of this Amendment (and the terms of the Agreement as modified hereby) shall be or
become effective as follows: |
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A. Sections
1.C., 1.E., 1.G., and 1.H. of this Amendment and the preparation and onboarding
activities related to the Services, including those set forth in Section II of Schedule
B6, shall be effective as of the date of this Amendment as set forth above. |
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B. Sections
1.A., 1.B., and 1.F. of this Amendment and the data aggregation, preparation of
data sets and recordkeeping activities of the Services (as defined in Schedule B6)
shall become effective as of the first day of the first month in which the Trust
is required by applicable law (including any rules and regulations promulgated thereunder
and in accordance with any interpretive releases issued by the U.S. Securities and
Exchange Commission) to aggregate data and maintain records consistent with Form
N-PORT (currently anticipated to be June 2018). |
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C. Section
1.D. and the filing obligations of the Services shall become effective as of the
first day of the first month in which the Trust is required by applicable law (including
any rules and regulations promulgated thereunder and in accordance with any interpretive
releases issued by the U.S. Securities and Exchange Commission) to file Form N-PORT
(currently anticipated to be April 2019). |
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| 3. | Notwithstanding
Section 12(a) of the Agreement, the Trust agrees to be bound to receive from State
Street the Services set forth in Schedule B6 attached hereto for at least eighteen
(18) months following the date of this Amendment. The parties further agree that
the foregoing commitment will be deemed the “term” for the Schedule B6
Services and that following the expiration of such term, the termination provisions
of Section 12(a) will apply to the Schedule B6 Services in the same way as such
provisions apply to all other services under the Agreement. |
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| 4. | Except
as specifically amended hereby, all other terms and conditions of the Agreement
shall remain in full force and effect. This Amendment, including Exhibit 1, is incorporated
in its entirety into the Agreement, and this Amendment and said Agreement shall
be read and interpreted together as the Agreement. |
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| 5. | This Amendment
shall be construed and the provisions thereof interpreted under and in accordance
with the laws of The Commonwealth of Massachusetts, without regard to its conflicts
of laws provisions. |
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| 6. | This Amendment
may be executed in separate counterparts, each of which shall be deemed to be an
original, and all such counterparts taken together shall constitute one and the
same instrument. Counterparts may be executed in either original or electronically
transmitted form (e.g., faxes or emailed portable document format (PDF) form), and
the parties hereby adopt as original any signatures received via electronically
transmitted form. |
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their officers designated below as of the date first written above.
| IVA FIDUCIARY TRUST | |||
| By: | /s/ Xxxxxxxx Xxxxxxxxx | ||
| Name: | Xxxxxxxx Xxxxxxxxx | ||
| Title: | Treasurer | ||
| STATE STREET BANK AND TRUST COMPANY | |||
| By: | /s/ Xxxxxx Xxxxxxxx | ||
| Name: | Xxxxxx Xxxxxxxx | ||
| Title: | Executive Vice President | ||
EXHIBIT 1
SCHEDULE B6
Fund Administration Form N-PORT (the “Form N-PORT Services”) and Form N-CEN (the “Form N-CEN Services”) Support Services (together, the “Form N-PORT and Form N-CEN Support Services”) and Quarterly Portfolio of Investments Services (collectively, with the Form N-PORT and Form N-CEN Support Services, and for purposes of this Schedule B6, the “Services”)
| I. | Services. | |||
| (a) |
Standard N-PORT and N-CEN Reporting Solution (Data and Filing): |
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| • | Subject
to the receipt of all required data, documentation, assumptions, information and
assistance from the Trust (including from any third parties with whom the Trust
will need to coordinate in order to produce such data, documentation, and information),
the Administrator will use required data, documentation, assumptions, information
and assistance from the Trust, the Administrator’s internal systems and, in
the case of Trusts not administered by the Administrator or its affiliates, third
party Trust administrators or other data providers, including but not limited to
Third Party Data (as defined below) (collectively, the “Required Data”)
to perform necessary data aggregations (including any applicable aggregation of
risk metrics) and calculations and prepare, as applicable: (i) a monthly draft Form
N-PORT standard template for review and approval by the Trust and (ii) annual updates
of Form N-CEN for review and approval by the Trust. |
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| • | The Trust
acknowledges and agrees that it will be responsible for reviewing and approving
each such draft N-PORT template and N-CEN update. |
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| • | Following
review and final approval by the Trust of each such draft Form N-PORT template and
N-CEN update, and at the direction of and on behalf of the Trust, the Administrator
will (i) produce an .XML formatted file of the completed Form N-PORT and Form N-CEN
and maintain a record thereof in accordance with this Agreement and (ii) when required
submit such filing to the SEC. |
The Form N-PORT Services will be provided to each Fund of the Trust as set forth in the attached Annex 1, which shall be executed by the Administrator and the Trust. The Form N-CEN Services will be provided to the Trust as set forth in the attached Annex 1. Annex 1 may be updated from time to time upon the written request of the Trust and by virtue of an updated Annex 1 that is signed by both parties.
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| (b) | Quarterly Portfolio of Investments Services: | ||||
| • | Subject
to the receipt of all Required Data, and as a component of the Form N-PORT and Form
N-CEN Support Services, the Administrator will use such Required Data from the Trust,
the Administrator’s internal systems and other data providers to prepare a
draft portfolio of investments (the “Portfolio of Investments”), compliant
with GAAP, as of the Trust’s first and third fiscal quarter-ends. |
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| • | Following
review and final approval by the Trust of each such draft Portfolio of Investments,
and at the direction of and on behalf of the Trust, the Administrator will attach
each Portfolio of Investments to the first and third fiscal quarter-end N-PORT filing
that is submitted electronically to the SEC. |
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| (c) | Liquidity Risk Measurement Services: [Not Applicable.] | ||||
| II. | Trust Duties, Representations and Covenants in Connection with the Services. |
The provision of the Services to the Trust by the Administrator is subject to the following terms and conditions:
| 1. | The parties acknowledge and agree on the following matters: |
The Services depend, directly or indirectly, on: (i) Required Data and (ii) information concerning the Trust or its affiliates or any Fund, pooled vehicle, security or other investment or portfolio regarding which the Trust or its affiliates provide services or is otherwise associated (“Trust Entities”) that is generated or aggregated by the Administrator or its affiliates in connection with services performed on the Trust’s behalf or otherwise prepared by the Administrator (“State Street Data,” together with Required Data and Third Party Data (as defined below), “Services-Related Data”). The Administrator’s obligations, responsibilities and liabilities with respect to any State Street Data used in connection with other services received by the Trust shall be as provided in such respective other agreements between the Administrator or its affiliates and the Trust relating to such other services (e.g., administration and/or custody services, etc.) from which the State Street Data is derived or sourced (“Other Trust Agreements”). Nothing in this Agreement or any service schedule(s) shall limit or modify the Administrator’s or its affiliates’ obligations to the Trust under the Other Trust Agreements.
In connection with the provision of the Services by the Administrator, the Trust acknowledges and agrees that it will be responsible for providing the Administrator with any information requested by the Administrator, including, but not limited to, the following:
(A) Arranging
for the regular provision of all Required Data (including State Street Data, where
applicable) and related information to the Administrator, in formats compatible |
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with Administrator-provided
data templates including, without limitation, Required Data and the information
and assumptions required by the Administrator in connection with a Trust reporting
profile and onboarding checklist, as it, or the information or assumptions required,
may be revised at any time by the Administrator, in its discretion (collectively,
the “Onboarding Checklist”) and such other forms and templates as may
be used by the Administrator for such purposes from time to time, for all Funds
receiving services under this Agreement, including but not limited to those to be
reported on Form N-PORT and Form N-CEN (as determined by the Trust), including,
without limitation, arranging for the provision of data from the Trust, its affiliates,
third party administrators, prime brokers, custodians, and other relevant parties.
If and to the extent that Required Data is already accessible to the Administrator
(or any of its affiliates) in its capacity as administrator to one or more Trusts,
the Administrator and the Trust will agree on the scope of the information to be
extracted from the Administrator’s or any of its affiliate’s systems for
purposes of the Administrator’s provision of the Services, subject to the discretion
of the Administrator, and the Administrator is hereby expressly authorized to use
any such information as necessary in connection with providing the Services hereunder;
and |
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(B) Providing
all required information and assumptions not otherwise included in Trust data and
assumptions provided pursuant to Section 1(A) above, including but not limited to
the Required Data, as may be required in order for the Administrator to provide
the Services. |
The following are examples of certain types of information that the Trust is likely to be required to provide pursuant to Sections 1(A) and 1(B) above, and the Trust hereby acknowledges and understands that the following categories of information are merely illustrative examples, are by no means an exhaustive list of all such required information, and are subject to change as a result of any amendments to Form N-PORT and Form N-CEN or any changes in requirements relating to the provision of Services:
| • | SEC filing classification of the Trust (i.e., small or large filer); | ||
| • | Identification of any data sourced from third parties; | ||
| • | Identification of any securities reported as Miscellaneous; and | ||
| • | Any Explanatory Notes included in N-PORT Section E. |
2. The Trust acknowledges that it has provided to the Administrator all material assumptions used by the Trust or that are expected to be used by the Trust in connection with the completion of Form N-PORT and Form N-CEN and the provision of the Services, and that it has approved all material assumptions used by the Administrator in the provision of the Services prior to the first use of the Services. The Trust will also be responsible for promptly notifying the Administrator of any changes in any such material assumptions previously notified to the Administrator by the Trust or otherwise previously approved by the Trust in connection with the Administrator’s provision of the Services. The Trust acknowledges that the completion of Form N-PORT and Form N-CEN and the provision of the Services, and the data required thereby,
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requires the use of material assumptions in connection with many different categories of information and data, and the use and/or reporting thereof, including, but not limited to the following:
| • | Investment classification of positions; | ||
| • | Assumptions necessary in converting data extracts; | ||
| • | General operational and process assumptions used by the Administrator in performing the Services; and | ||
| • | Assumptions specific to the Trust. |
The Trust hereby acknowledges and understands that the foregoing categories of information that may involve the use of material assumptions are merely illustrative examples of certain subject matter areas in relation to which the Trust (and/or the Administrator on its behalf in connection with the Services) may rely on various material assumptions, and are by no means an exhaustive list of all such subject matter areas.
| 3. | The Trust acknowledges and agrees on the following matters: |
(A) The Trust has independently reviewed the Services (including, without limitation, the assumptions, market data, securities prices, securities valuations, tests and calculations used in the Services), and the Trust has determined that the Services are suitable for its purposes. None of the Administrator or its affiliates, nor their respective officers, directors, employees, representatives, agents or service providers (collectively, including the Administrator, “State Street Parties”) make any express or implied warranties or representations with respect to the Services or otherwise.
(B) The Trust assumes full responsibility for complying with all securities, tax, commodities and other laws, rules and regulations applicable to it. The Administrator is not providing, and the Services do not constitute, legal, tax, investment, or regulatory advice, or accounting or auditing services advice. Unless otherwise agreed to in writing by the parties to this Agreement, the Services are of general application and the Administrator is not providing any customization, guidance, or recommendations. Where the Trust uses Services to comply with any law, regulation, agreement, or other Trust obligation, the Administrator makes no representation that any Service complies with such law, regulation, agreement, or other obligation, and the Administrator has no obligation of compliance with respect thereto.
(C) The Trust may use the Services and any reports, charts, graphs, data, analyses and other results generated by the Administrator in connection with the Services and provided by the Administrator to the Trust (“Materials”) (a) for the internal business purpose of the Trust relating to the applicable Service or (b) for submission to the U.S. Securities and Exchange Commission, as required, of a Form N-PORT template and a Form N-CEN update, including any Portfolio of Investments, if applicable. The Trust may also redistribute the Materials, or an excerpted portion thereof, to its investment managers, investment advisers, agents, clients, investors or participants, as applicable, that have a reasonable interest in the Materials in connection with their relationship
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with the Trust (each a “Permitted Person”); provided, however, (i) the Trust may not charge a fee, profit, or otherwise benefit from the redistribution of Materials to Permitted Persons, (ii) data provided by third party sources such as but not limited to market or index data (“Third Party Data”) contained in the Materials may not be redistributed other than Third Party Data that is embedded in the calculations presented in the Materials and not otherwise identifiable as Third Party Data, except to the extent the Trust has separate license rights with respect to the use of such Third Party Data, or (iii) the Trust may not use the Services or Materials in any way to compete or enable any third party to compete with the Administrator. No Permitted Person shall have any further rights of use or redistribution with respect to, or any ownership rights in, the Materials or any excerpted portion thereof.
Except as expressly provided in this Section 3(C), the Trust, any of its affiliates, or any of their respective officers, directors, employees, investment managers, investment advisers, agents or any other third party, including any client of, or investor or participant in the Trust or any Permitted Persons (collectively, including the Trust, “Trust Parties”), may not directly or indirectly, sell, rent, lease, license or sublicense, transmit, transfer, distribute or redistribute, disclose display, or provide, or otherwise make available or permit access to, all or any part of the Services or the Materials (including any State Street Data or Third Party Data contained therein, except with respect to Third Party Data to the extent the Trust has separate license rights with respect to the use of such Third Party Data). Without limitation, Trust Parties shall not themselves nor permit any other person to in whole or in part (i) modify, enhance, create derivative works, reverse engineer, decompile, decompose or disassemble the Services or the Materials; (ii) make copies of the Services, the Materials or portions thereof; (iii) secure any source code used in the Services, or attempt to use any portions of the Services in any form other than machine readable object code; (iv) commercially exploit or otherwise use the Services or the Materials for the benefit of any third party in a service bureau or software-as-a-service environment (or similar structure), or otherwise use the Services or the Materials to perform services for any third party, including for, to, or with consultants and independent contractors; or (v) attempt any of the foregoing or otherwise use the Services or the Materials for any purpose other than as expressly authorized under this Agreement.
(D) The Trust shall limit the access and use of the Services and the Materials by any Trust Parties to a need-to-know basis and, in connection with its obligations under this Agreement, the Trust shall be responsible and liable for all acts and omissions of any Trust Parties.
(E) The Services, the Materials and all confidential information of the Administrator (as confidential information is defined in the Agreement and other than Third Party Data and Required Data), are the sole property of the Administrator. The Trust has no rights or interests with respect to all or any part of the Services, the Materials or the Administrator’s confidential information, other than its use and redistribution rights expressly set forth in Section 3(C) herein. The Trust automatically and irrevocably assigns to the Administrator any right, title or interest that it has, or may be deemed to have, in the Services, the Materials or the Administrator’s confidential information, including, for the avoidance of doubt and without limitation, any Trust
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Party feedback, ideas, concepts, comments, suggestions, techniques or know-how shared with the Administrator (collectively, “Feedback”) and the State Street Parties shall be entitled to incorporate any Feedback in the Services or the Materials or to otherwise use such Feedback for its own commercial benefit without obligation to compensate the Trust.
(F) The Administrator may rely on Services-Related Data used in connection with the Services without independent verification. Services-Related Data used in the Services may not be available or may contain errors, and the Services may not be complete or accurate as a result.
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ANNEX I
Further to the Amendment dated as of May 22, 2018, to the Administration Agreement dated as of August 21, 2008, between IVA Fiduciary Trust (the “Trust”) and State Street Bank and Trust Company (the “Administrator”), the Trust and the Administrator mutually agree to update this Annex 1 by adding/removing Funds as applicable:
| Form
N-PORT Services and Quarterly Portfolio of Investments Services |
Service Type |
IVA Fiduciary Trust |
Standard
N-PORT and N-CEN Reporting Solution (Data and Filing) |
| IVA Worldwide Fund | Standard |
| IVA International Fund | Standard |
Form N-CEN Services |
IVA Fiduciary Trust |
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IN WITNESS WHEREOF, the undersigned, by their authorized representatives, have executed this Annex 1 as of the last signature date set forth below.
| IVA FIDUCIARY TRUST | |||
| By: | /s/ Xxxxxxxx Xxxxxxxxx | ||
| Name: | Xxxxxxxx Xxxxxxxxx | ||
| Title: | Treasurer | ||
| Date: | June 19, 0000 | ||
| XXXXX XXXXXX BANK AND TRUST COMPANY | |||
| By: | /s/ Xxxxxx Xxxxxxxx | ||
| Name: | Xxxxxx Xxxxxxxx | ||
| Title: | Executive Vice President | ||
| Date: | June 19, 2018 | ||
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