TRANSFER AGENCY SERVICES AGREEMENT
The following is a transfer agency agreement among Atlantic Shareholder
Services, LLC, Xxxxxx Diversified Opportunities Fund and Xxxxxx Diversified
Opportunities Fund LTD.
TABLE OF CONTENTS
SECTION 1. APPOINTMENT .................................................... 1
SECTION 2. DUTIES OF ATLANTIC ............................................. 2
SECTION 3. STANDARD OF CARE ............................................... 4
SECTION 4. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY ................ 6
SECTION 5. COMPENSATION AND EXPENSES ...................................... 6
SECTION 6. EFFECTIVENESS, DURATION AND TERMINATION ........................ 7
SECTION 7. ACTIVITIES OF ATLANTIC ......................................... 8
SECTION 8. PROPRIETARY AND CONFIDENTIAL INFORMATION ....................... 8
SECTION 9. RECORDS ........................................................ 8
SECTION 10. LOST SHAREHOLDER DUE DILIGENCE SEARCHES AND SERVICING .......... 9
SECTION 11. ANTI-MONEY LAUNDERING PROGRAM .................................. 9
SECTION 12. IDENTITY THEFT PREVENTION PROGRAM .............................. 10
SECTION 13. REPRESENTATIONS AND WARRANTIES ................................. 11
SECTION 14. FORCE MAJEURE .................................................. 13
SECTION 15. MISCELLANEOUS .................................................. 13
APPENDIX A: FUNDS OF THE TRUST ............................................. 16
APPENDIX B: SERVICES ....................................................... 17
SCHEDULE A: FEE SCHEDULE ................................................... 23
TRANSFER AGENCY SERVICES AGREEMENT
AMONG
ATLANTIC SHAREHOLDER SERVICES, LLC
XXXXXX DIVERSIFIED OPPORTUNITIES FUND
AND
XXXXXX DIVERSIFIED OPPORTUNITIES FUND LTD
AGREEMENT (this "AGREEMENT") made this day of September 15, 2015 (the "EFFECTIVE
DATE"), between Atlantic Shareholder Services, LLC (the "ATLANTIC"), a limited
liability company organized under the laws of the State of Delaware with its
principal place of business at Three Xxxxx Xxxxx, Xxxxxxxx, Xxxxx 00000, Xxxxxx
Diversified Opportunities Fund (the "TRUST"), a statutory trust organized under
the laws of the State of Delaware with its principal place of business at Xxx
Xxxxxxx Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx 00000, and Xxxxxx Diversified
Opportunities Fund LTD (the "CFC"), a limited company incorporated in the Cayman
Islands.
W I T N E S S E T H :
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 ACT"), as a close-ended management investment
company and may issue its shares of beneficial interest in separate classes,
subject to appropriate exemptive relief from the U.S. Securities and Exchange
Commission; and
WHEREAS, the Trust offers shares in the series as listed in APPENDIX A
hereto (such series being herein referred to as a "FUND,") and the Trust offers
shares of various classes of the Fund as listed in APPENDIX A hereto; and
WHEREAS, the Trust is the sole shareholder of the CFC, a controlled
foreign corporation through which some of the Fund's trading strategy will be
executed; and
WHEREAS, the Trust desires that Atlantic perform transfer agency
services for the Fund and the CFC and Atlantic is willing to provide such
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 Trust and Atlantic agree as follows:
SECTION 1. APPOINTMENT
The Trust hereby appoints Atlantic, subject to the supervision of the
Board of Trustees of the Trust (the "BOARD"), to act as transfer agent to the
Fund and the CFC and, in such capacity, to provide the services set forth in
APPENDIX B hereto and such other services as may reasonably be requested by the
Trust from time to time (the "SERVICES"). Atlantic accepts this employment and
agrees to render the Services for the compensation set forth herein. In
connection therewith, the Trust has delivered to Atlantic copies of (i) the
Trust's Declaration of Trust and By-laws and the
CFC's Certificate of Incorporation and Memorandum and Articles of Association
("ORGANIC DOCUMENTS"), (ii) the Trust's "Registration Statement" and all
amendments thereto filed with the United States 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 the Fund (collectively, as currently in effect and as
amended or supplemented, the "PROSPECTUS"), (iv) all procedures adopted by the
Trust with respect to the Fund and the CFC that impact the Services, and (v)
any other documents, materials or information that Atlantic shall reasonably
request to enable it to perform its duties pursuant to this Agreement. The
Trust will further, from time to time, furnish Atlantic with all amendments of
or supplements to the foregoing. The Trust shall cause all service providers
to the Fund and the CFC to furnish information to Atlantic and to assist
Atlantic as may be required and shall ensure that Atlantic has reasonable
access to all records and documents maintained by or on behalf of the Fund, the
CFC or any of their respective service providers.
SECTION 2. DUTIES OF ATLANTIC
(a) Subject to the direction and control of the Board and as detailed
in this Agreement, Atlantic shall manage, coordinate and report to the Board
regarding the (i) Services and (ii) such other matters related to the services
provided to the Fund and the CFC by Atlantic as may be specifically set forth
in this Agreement.
(b) Atlantic shall provide the Services set forth in APPENDIX B.
(c) In addition to the limitation of liability set forth in SECTION 3 of
this Agreement, Atlantic shall not be liable to the Trust, the Fund, the CFC or
any other individual or entity ("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):
(i) 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;
(ii) if the failure to perform the Services is at the request or
with the consent of the Trust;
(iii) 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 Fund or the CFC or with respect to the Fund or CFC's
shareholders including, without limitation, any adviser or
underwriter for the Fund or CFC, brokers or other intermediaries
through which shares of the Fund may be sold or distributed and
any other current or predecessor service providers to the Fund or
CFC or (B) couriers, software houses, custodians' clearing
systems or depositories, PROVIDED, that (1) if
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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 the Trust or with the consent of the Trust;
and/or
(iv) if any Law to which Atlantic or any third party is subject
prevents or limits the performance of the duties and obligations
of Atlantic.
Notwithstanding the foregoing, Atlantic shall nevertheless use
reasonable efforts to provide the Services while any of the
circumstances specified in this SECTION 2(C) 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 Trust and the Trust shall 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.
(d) 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 that could cause the Fund or the CFC
to act in contravention of the Prospectus, their respective Organic Documents
or any Law. The Trust on behalf of 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) the procedures, features,
functionalities, systems and/or facilities 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, the Trust assumes all responsibility
for ensuring that each of the Fund and the CFC complies in all material
respects with all applicable requirements of Law.
(e) Atlantic shall maintain policies and procedures relating to the
Services it provides to the Fund and the CFC that are reasonably designed to
prevent violations of the Federal Securities Laws (as defined under the 0000
Xxx) and shall employ personnel to administer the policies and procedures who
have the requisite level of skill and competence required to effectively
discharge its responsibilities.
(f) 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.
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(g) Atlantic shall (i) promptly notify the Trust's chief compliance
officer ("CCO") of any material violation of Law known to Atlantic by the Trust
or the Fund or the CFC 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
Trust and Atlantic's services 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 or any Atlantic
subcontractor.
(h) If Atlantic is in doubt as to any action it should or should not
take, Atlantic may request directions, advice or instructions from the Trust
or, as applicable, the Trust's investment adviser, custodian or other service
providers. If Atlantic is in doubt as to any question of law pertaining to any
action it should or should not take, Atlantic may request advice from counsel
for the Trust, the Trust's investment adviser or Atlantic, at the option of
Atlantic. In the event of a conflict between directions, advice or
instructions Atlantic receives from the Trust or any service provider and the
advice Atlantic receives from counsel, the Trust and Atlantic shall mutually
agree upon the directions, advice or instructions to follow. Upon request,
Atlantic will provide the Trust with a copy of the advice of counsel received
that is not the subject of attorney client or work product privilege.
SECTION 3. STANDARD OF CARE
(a) Atlantic shall be obligated to act in good faith and to exercise
commercially reasonable care and diligence in the performance of its duties
under this Agreement (the "STANDARD OF CARE").
(b) Atlantic shall not be liable to the Trust, the Fund, the CFC, any
Fund shareholders or any other Person for any action or inaction of Atlantic
relating to any event whatsoever including, without limitation, any error of
judgment or mistake of Law or any loss incurred by the Trust, the Fund or the
CFC, in the absence of a breach of the Standard of Care, bad faith, willful
misfeasance or gross 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.
(c) The Trust 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 the Fund or the
CFC, or (B) incident to the delivery of the Services, except those actions or
failures to act for which Atlantic Indemnitee would otherwise be liable under
Section 3(b).
(d) Atlantic agrees to indemnify and hold harmless the Trust and its
respective 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
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party and arising directly out of (A) Atlantic's actions taken or failures to
act with respect to the Fund or the CFC or (B) incident to the delivery of the
Services, in either clause (A) or clause (B), for which Atlantic would be
liable under Section 3(b).
(e) An Atlantic Indemnitee shall not be liable for any action taken or
failure to act in good faith reliance upon:
(i) the advice of the Fund or the Trust or of counsel, who may be
counsel to the Trust or the Fund or 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;
(ii) any oral instruction that it receives and that it reasonably
believes in good faith was transmitted by the Person or Persons
authorized by the Trust or the Fund to give such oral
instruction. Atlantic shall have no duty or obligation to make
any inquiry or effort of certification of such oral instruction;
(iii) any written instruction or certified copy of any resolution
of the 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;
(iv) 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 Trust, the Fund or the CFC or other proper party
or parties; or
(v) any electronic instructions from the Trust, the Fund or the
CFC 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.
(f) 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.
(g) Atlantic's liability to the Trust and any other Person for any
losses or damages in contract, tort or otherwise, arising out of the subject
matter of this Agreement shall, save in the case of liability resulting from
the bad faith, willful misfeasance or gross negligence in the performance of
Atlantic's duties or obligations under this Agreement or Atlantic's reckless
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disregard of its duties and obligations under this Agreement, be limited to
those damages that are reasonably incurred by the Trust, the Fund and the CFC
and shall not exceed the greater of (i) the fees paid by the Trust, on behalf of
the Fund and the CFC, in respect of the Services during the twenty-four (24)
months immediately preceding the date of the event giving rise to the claim; and
(ii) USD $1 million. 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, punitive 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.
SECTION 4. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
Atlantic acknowledges and agrees that the members of the Board and the
shareholders of the Fund shall not be liable under this Agreement for any
obligations of the Trust, the Fund or the CFC and Atlantic agrees that, in
asserting any rights or claims under this Agreement, it shall look only to the
assets and property of the Trust, the Fund or of the CFC to which Atlantic's
rights or claims relate in settlement of such rights or claims.
SECTION 5. COMPENSATION AND EXPENSES
(a) For the services provided by Atlantic pursuant to this Agreement,
the Trust shall pay Atlantic, with respect to the Fund and the CFC, a fee at the
annual rate stated in SCHEDULE A hereto (the "FEE SCHEDULE"). Such fees shall be
accrued by the Fund daily and billed monthly in arrears. Atlantic also shall be
reimbursed for such out-of-pocket expenses (E.G., telecommunication charges,
postage and delivery charges, and reproduction charges) as are reasonably
incurred by Atlantic in performing its duties hereunder.
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, the Trust shall pay
to Atlantic such compensation as shall be payable prior to the effective date of
termination.
The Trust shall pay all such fees and reimbursable expenses within 30
calendar days following receipt of the billing notice, except for any fee or
expense subject to a good faith dispute. The Trust shall notify Atlantic in
writing within 30 calendar days following receipt of each invoice if the Trust
is disputing any amounts in good faith. The Trust shall pay such disputed
amounts within the foregoing 30 calendar day period or, if later, 10 calendar
days of the day on which the parties agree to the amount to be paid.
(b) Notwithstanding anything in this Agreement to the contrary,
Atlantic and its affiliated Persons may receive other compensation or
reimbursement from the Trust, including with respect to (i) the provision of
services not covered by this Agreement or (ii) the provision of shareholder
support or other services not covered by this Agreement.
(c) In connection with the services provided by Atlantic pursuant to
this Agreement, the Trust, on behalf of the Fund and the CFC, agrees to
reimburse Atlantic for the expenses set forth in the Fee Schedule. In addition,
the Trust shall reimburse Atlantic for all reasonably an
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necessarily incurred expenses and employee time attributable to any review,
outside of routine and normal periodic reviews or other reviews provided for
under this Agreement, of the Fund's and the CFC's accounts and records by the
Fund's independent accountants or any regulatory body of which the Fund is
first notified and that are not attributable to any negligent action or
inaction of Atlantic, provided that, to the extent practicable, Atlantic agrees
such expenses and employee time with the Trust in advance of incurring the
same.
SECTION 6. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective on the Effective Date. This
Agreement shall continue in effect (i) until terminated in its entirety or
(ii), with respect to the CFC or with respect to any one or more of the
Services covered by APPENDIX B, as applicable, provided to the Fund or the CFC,
until terminated as to the CFC or a Service provided to the Fund or CFC, as
applicable.
(b) This Agreement may be terminated (A) in its entirety or (B) with
respect to the CFC (a "PARTIAL TERMINATION"), without the payment of any
penalty:
(i) 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 90 days prior to the termination date specified in
the notice; PROVIDED that in the event the Trust 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; PROVIDED FURTHER,
that in the event Atlantic gives notice of termination or of a
Partial Termination, the Trust may delay the termination or
Partial Termination for up to an additional ninety (90) days upon
further written notice to Atlantic; and
(ii) for cause at any time by the non-breaching party on
immediate 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 non-breaching party has
first notified the other party of the breach (such notice to
describe the breach) (a "Breach Notice"), and (ii) no such
termination shall be effective if, with respect to any breach
that is capable of being cured, the breaching party has cured
such breach to the reasonable satisfaction of the non-breaching
party within thirty (30) days of receipt of the relevant Breach
Notice.
(c) Upon notice of termination by either party of this Agreement, in
its entirety or with respect to the CFC or any Service provided to the Fund or
CFC, 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 Trust
or Atlantic exercise its right to terminate this Agreement, the Trust shall,
as
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agreed in advance in good faith with Atlantic, 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 and Atlantic's out-of-pocket costs incurred in
the termination of services that relate primarily or exclusively to any
Services being terminated hereunder ("TERMINATION COSTS"); PROVIDED, HOWEVER,
that, notwithstanding anything herein to the contrary, the Trust shall have no
obligation to reimburse Atlantic for its costs if the Trust terminates this
Agreement pursuant to clause (ii) of subsection (b) above or if Atlantic
terminates this Agreement pursuant to clause (i) of subsection (b) above.
(d) The provisions of SECTIONS 3, 4, 5, 6, 7, 8, 9, 14 and 15 shall
survive any termination of this Agreement.
SECTION 7. ACTIVITIES OF ATLANTIC
Except to the extent necessary to perform its obligations under this
Agreement, nothing herein shall be deemed to limit or restrict Atlantic's
right, or the right of any of its officers, directors or employees 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
or association.
SECTION 8. PROPRIETARY AND CONFIDENTIAL INFORMATION
(a) Atlantic agrees on behalf of itself and its directors, officers,
and employees to treat confidentially and as proprietary information of the
Trust, the Fund and the CFC, all records and other information relative to the
Trust, the Fund and the CFC and prior, present, or potential shareholders of
the Trust, the Fund and the CFC (and clients of said shareholders), and not to
use such records and information for any purpose other than the performance of
its responsibilities and duties hereunder, except (i) after prior notification
to and approval in writing by the Trust, which approval shall not be
unreasonably withheld, conditioned or delayed and may not be withheld,
conditioned or delayed where Atlantic may be exposed to civil or criminal
contempt proceedings for failure to comply, (ii) when requested to divulge such
information by duly constituted authorities approved by the Trust, or (iii)
when so requested by the Trust. Records and other information which have
become known to the public through no wrongful act of Atlantic or any of its
employees, agents or representatives, and information that was already in the
possession of Atlantic prior to receipt thereof from the Trust or its agent,
shall not be subject to this paragraph.
(b) Further, Atlantic will adhere to the privacy policies adopted by
the Trust on behalf of itself, the Fund and the CFC pursuant to Title V of the
Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from time to time. In addition,
Atlantic will comply with any other limitations or restrictions on disclosure
of portfolio holdings or other information of the Trust set forth in the
Trust's prospectus and statement of additional information. In this regard,
Atlantic shall have in place and maintain physical, electronic and procedural
safeguards reasonably designed to protect the security, confidentiality and
integrity of, and to prevent unauthorized access to or use of, records and
information relating to the Trust and its shareholders.
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SECTION 9. RECORDS
Atlantic shall keep records relating to the Services to be performed
hereunder in the form and manner, and for such period, as it may deem
advisable, but not inconsistent with the rules and regulations of appropriate
government authorities, in particular, section 31 of the 1940 Act. Atlantic
agrees that any such records prepared or maintained by Atlantic relating to the
services to be performed by Atlantic hereunder, to the extent required by law,
are the property of the Trust and will be preserved, maintained, and made
available in accordance with such laws applicable to the Trust, including
without limitation, section 31 of the 1940 Act and will be promptly surrendered
to the Trust or its designee on and in accordance with its request.
SECTION 10. LOST SHAREHOLDER DUE DILIGENCE SEARCHES AND SERVICING
The Trust acknowledges that Atlantic has an arrangement with an outside
vendor to conduct lost shareholder searches required by Rule 17Ad-17 under the
Securities Exchange Act of 1934, as amended. If a shareholder remains lost and
the shareholder's account unresolved after completion of the mandatory Rule
17Ad-17 search, the Trust authorizes Atlantic to enter (itself or through the
vendor), at its discretion, into fee sharing arrangements with the lost
shareholder (or such lost shareholder's representative or executor) to conduct
a more in-depth search in order to locate the lost shareholder before the
shareholder's assets escheat. The Trust acknowledges that Atlantic is not a
party to these arrangements and does not receive any revenue sharing or other
fees relating to these arrangements. Furthermore, the Trust acknowledges that
vendor may receive compensation from the lost shareholder's assets for its
efforts in locating the lost shareholder.
SECTION 11. ANTI-MONEY LAUNDERING PROGRAM
(a) The Trust delegates to Atlantic, and Atlantic hereby accepts,
responsibility to perform certain services in connection with the Trust's
Anti-Money Laundering Program (the "TRUST AML PROGRAM"), as further set out in
the Trust AML Program, including provisions relating to: (i) customer
identification program, (ii) suspicious activity monitoring and reporting;
(iii) cash transaction reporting; (iv) recordkeeping; and (v) employee training
(as it relates to Atlantic employees) (collectively, the "AML SERVICES").
Atlantic agrees to cooperate with the Trust's AML Compliance Officer in the
performance of the AML Services as set forth in the Trust AML Program.
(b) Atlantic represents and warrants that:
(i) Atlantic undertakes to perform all delegated responsibilities
under the Trust AML Program; and
(ii) Atlantic has adopted and will maintain written anti-money
laundering policies and procedures ("ATLANTIC AML POLICIES AND
PROCEDURES") that includes policies and procedures that enable it
to perform its responsibilities under this Agreement.
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(c) The Trust represents and warrants that the Trust will promptly
provide Atlantic any amendment(s) to the Trust AML Program, which will be
subject to the terms of this Agreement upon delivery to Atlantic.
(d) Atlantic:
(i) agrees to provide, upon request by federal examiners,
information and records maintained by Atlantic relating to the
Trust AML Program for purposes of the Trust AML Program;
(ii) agrees to provide, upon request by the Trust, information
and records maintained by Atlantic relating to the AML Services
and the Atlantic AML Policies and Procedures as they apply to the
AML Services;
(iii) agrees to cooperate with the Trust's AML Compliance Officer
with respect to any request for information by the Financial
Crimes Enforcement Network pursuant to the Bank Secrecy Act, as
amended by the USA PATRIOT Act and the regulations thereunder;
and
(iv) consents to the inspection of Atlantic by federal examiners
for purposes of the Trust AML Program; any such inspection shall
be deemed outside of routine and normal periodic reviews as
contemplated under Section 5(c).
(e) Atlantic agrees to furnish to the Trust the following:
(i) a copy of Atlantic AML Policies and Procedures as in effect
on the date hereof, and any material amendment thereto promptly
after the adoption of any such amendment;
(ii) upon reasonable request of the CCO and in any event no less
frequently than annually, a report on Atlantic AML Program that
includes a certification to the Trust concerning Atlantic's
implementation of, and ongoing compliance with, Atlantic AML
Program and a summary of any audit report prepared with respect
to Atlantic AML Program as its pertains to the AML Services;
(iii) interim reports with respect to any material issues that
arise with respect to the AML Services or Atlantic AML Program;
and
(iv) periodic reports concerning Atlantic's compliance with
Atlantic AML Program and/or the AML Services at such times as may
be reasonably requested by the Board or AML Compliance Officer.
SECTION 12. IDENTITY THEFT PREVENTION PROGRAM
(a) The Trust delegates to Atlantic, and Atlantic hereby accepts,
responsibility to perform certain services (the "IDENTITY THEFT PREVENTION
SERVICES") in connection with the Trust's Identity Theft Prevention Program,
(the "TRUST IDENTITY THEFT PREVENTION PROGRAM"), as further set
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out in the Trust Identity Theft Prevention Program. Atlantic agrees to
cooperate with the CCO in the performance of the Identity Theft Prevention
Services as set forth in the Trust Identity Theft Prevention Program.
(b) Atlantic represents and warrants that:
(i) Atlantic undertakes to perform all delegated responsibilities
under the Trust Identity Theft Prevention Program; and
(ii) Atlantic has adopted and will maintain a written identity
theft prevention program ("ATLANTIC IDENTITY THEFT POLICIES AND
PROCEDURES") that includes policies and procedures that enable it
to perform its responsibilities under this Agreement.
(c) The Trust represents and warrants that the Trust will promptly
provide Atlantic any amendment(s) to the Trust Identity Theft Prevention
Program, which will be subject to the terms of the Agreement, as amended hereby.
(d) Atlantic agrees to furnish the Trust with the following:
(i) prompt written notification of any transaction or combination
of transactions that Atlantic believes, based on the Identity
Theft Prevention Procedures, evidence money laundering or
identity theft activities in connection with the Trust or any
shareholder of the Trust;
(ii) prompt written notification of any customer(s) that Atlantic
reasonably believes, based upon the Identity Theft Prevention
Procedures, to be engaged in money laundering or identity theft
activities, provided that the Trust shall not to communicate this
information to the customer;
(iii) Any reports received by Atlantic from any government agency
or applicable industry self-regulatory organization pertaining to
Atlantic AML Policies and Procedures, the Trust AML Program,
Atlantic Identity Theft Policies and Procedures, or the Trust
Identity Theft Prevention Program;
(iv) prompt written notification of any action taken in response
to identity theft activity as described in (i), (ii) or (iii);
and
(v) certified annual and quarterly reports of its monitoring and
customer identification activities on behalf of the Trust.
(e) The Trust directs Atlantic to, and Atlantic acknowledges that it
shall (i) permit federal regulators access to such information and records
maintained by Atlantic and relating to Atlantic's implementation of the Identity
Theft Prevention Procedures, on behalf of the Trust, as they may request, and
(ii) permit such federal regulators to inspect Atlantic's implementation of the
Identity Theft Prevention Procedures on behalf of the Trust; any such provision
of access or inspection shall be deemed outside of routine and normal periodic
reviews as contemplated under Section 5(c).
- 11 -
SECTION 13. REPRESENTATIONS AND WARRANTIES
(a) REPRESENTATIONS AND WARRANTIES OF ATLANTIC. Atlantic represents
and warrants to the Trust and the CFC that:
(i) It is duly organized and existing as a limited liability
company and in good standing under the laws of the State of
Delaware.
(ii) It is empowered under applicable laws and by its limited
liability company agreement to enter into this Agreement and
perform its duties under this Agreement.
(iii) All requisite limited liability company proceedings have
been taken to authorize it to enter into this Agreement and
perform its duties this Agreement.
(iv) It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
(v) (A) The execution, delivery and performance of this Agreement
by Atlantic does not breach, violate or cause a default under any
agreement, contract or instrument to which Atlantic is a party or
any judgment, order or decree to which Atlantic is subject; (B)
the execution, delivery and performance of this Agreement by
Atlantic has been duly authorized and approved by all necessary
limited liability company action; and (C) upon the execution and
delivery of this Agreement by Atlantic and the Trust, this
Agreement 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.
(vi) Each of Atlantic, its parent and its parent's other
subsidiaries has adopted and implemented written policies and
procedures reasonably designed to prevent violations of the
Federal Securities Laws (as defined under the 0000 Xxx) related
to the services provided by Atlantic to the Trust. It will
review, no less frequently than annually, the adequacy of the
policies and procedures and the effectiveness of their
implementation. At least quarterly, Atlantic will report to the
Trust any material changes made to the policies and procedures
and provide the Trust with a report of each compliance matter
identified during the quarter with respect to the Funds that may
reasonably be deemed material (as defined under 1940 Act).
(vii) It will maintain insurance that covers such risks and is in
such amounts, with such deductibles and exclusions, sufficient
for compliance by Atlantic with all requirements of law and
sufficient for Atlantic to perform its obligations under this
Agreement; and all such policies are in full force and
- 12 -
effect and are with financially sound and reputable insurance
companies, underwriters or other insuring entity.
(viii) It is a registered transfer agent under Section 17A(c) of
the Securities Exchange Act of 1934, as amended.
(b) REPRESENTATIONS AND WARRANTIES OF THE TRUST. The Trust represents
and warrants to Atlantic that:
(i) It is a statutory trust duly organized, validly existing and
in good standing under the laws of the State of Delaware and is
registered with the SEC as an open-end investment company under
the 1940 Act.
(ii) It is empowered under applicable laws and by its Organic
Documents to enter into and perform this Agreement.
(iii) All requisite statutory trust proceedings have been taken
to authorize it to enter into and perform this Agreement.
(iv) (A) The execution, delivery and performance of this
Agreement by the Trust does not breach, violate or cause a
default under any agreement, contract or instrument to which the
Trust is a party or any judgment, order or decree to which the
Trust is subject; (B) the execution, delivery and performance of
this Agreement by the Trust has been duly authorized and approved
by all necessary action; and (C) upon the execution and delivery
of this Agreement by Atlantic, the CFC and the Trust, this
Agreement 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.
(C) REPRESENTATIONS AND WARRANTIES OF THE CFC. The CFC represents and
warrants to Atlantic that:
(i) It is a controlled foreign corporation duly incorporated as a
limited company, validly existing and in good standing under the
laws of the Cayman Islands.
(ii) It is empowered under applicable laws and by its Organic
Documents to enter into and perform this Agreement.
(iii) All requisite company proceedings have been taken to
authorize it to enter into and perform this Agreement.
(iv) (A) The execution, delivery and performance of this
Agreement by the CFC does not breach, violate or cause a default
under any agreement, contract or instrument to which the CFC is a
party or any judgment, order or decree to which the CFC is
subject; (B) the execution, delivery and
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performance of this Agreement by the CFC has been duly authorized
and approved by all necessary action; and (C) upon the execution
and delivery of this Agreement by Atlantic, the CFC and the
Trust, this Agreement will constitute a legal, valid and binding
obligation of the CFC, enforceable against the CFC 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.
SECTION 14. FORCE MAJEURE
No party shall 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, acts of civil or military authority, national emergencies, labor
difficulties (other than those related to Atlantic's employees), fire,
mechanical breakdowns, flood or catastrophe, acts of God, insurrection, war,
riots or failure of the mails, transportation, communication or power supply.
SECTION 15. MISCELLANEOUS
(a) No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by all
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.
(c) This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement between those parties with respect to
the subject matter hereof, 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. Electronic delivery of this Agreement
shall be deemed to have been properly delivered.
(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.
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(h) 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.
(i) 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 and each
party hereto warrants and represents that this Agreement, when executed and
delivered, will constitute a legal, valid and binding obligation of the party,
enforceable against the party 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.
(j) 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.
(k) 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 written notice to the
Trust, Atlantic may subcontract for the performance hereof with any affiliate
of Atlantic; PROVIDED HOWEVER, that Atlantic shall be as fully responsible to
the Trust 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
Trust to Atlantic under this Agreement for the Services. Notwithstanding the
foregoing, Atlantic shall not be liable for the acts or omissions of any Person
to which any performance hereunder is subcontracted at the direction of the
Trust.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
XXXXXX DIVERSIFIED OPPORTUNITIES
FUND
By: /s/ Xxxxxxx Xxxxxxx
XXXXXX DIVERSIFIED OPPORTUNITIES
FUND LTD.
By: /s/ Xxxxxxx Xxxxxxx
ATLANTIC SHAREHOLDER SERVICES, LLC
By: /s/ Xxxxxxxxxxx Xxxxx
Xxxxxxxxxxx Xxxxx
Senior Vice President
- 16 -
APPENDIX A: FUNDS OF THE TRUST
FUND NAME CLASS NAME CUSIP SYMBOL
--------------------------------------------------------------------------------
Xxxxxx Diversified Opportunities Fund
- 17 -
APPENDIX A: SERVICES
Atlantic shall provide the following services in respect of the fund and, to
the extent applicable, the CFC:
1. GENERAL
(a) Set up and maintain investor account information, including, as applicable,
name, address, taxpayer identification number(s) and intermediary instructions.
(b) Track and report pending subscriptions and repurchases to all applicable
parties.
(c) Maintain all investor account information changes.
(d) Prepare investor mailing lists.
(e) Withhold taxes on U.S. resident and non-resident alien accounts, when
applicable.
(f) Prepare and file U.S. Treasury Department Forms 945, 1042, 1099 and 5498
with respect to distributions for investors.
(g) Prepare and mail confirmation statements as required by Rule 10b-10 of the
Securities Exchange Act of 1934, as amended, and statements of account to
investors for all purchases and repurchases of Shares and other confirmable
transactions in investor accounts.
(h) Provide investor account information.
(i) Provide data regarding broker commissions and providing related reports to
all applicable parties.
(j) Calculate any applicable fees under 12b-1 plans, if any, and providing
related reports to the Fund's distributor; and
(k) Transmitting to the Fund's fund accounting service provider appropriate
data to allow the service provider's reconciliations of cash, shares
outstanding and other data.
(l) Prepare and mail activity statements and other routine communications to
investors, when applicable.
(m) Atlantic will provide SEI with sufficient information as required to allow
SEI to perform the duties of delivering proxies and related materials to direct
shareholders and making the same available for intermediaries
(n) Atlantic will provide SEI with sufficient information as required to allow
SEI to perform the duties of delivering reports and prospectuses to direct
shareholders and making the same available for intermediaries.
(o) Providing such other information reporting based on data maintained by
Atlantic as reasonably requested by the CCO, including without limitation, to
enable the Trust to carry out its compliance monitoring function as referred to
in the Prospectus.
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2. PURCHASES, REPURCHASES AND TRANSFERS
(a) Receive for acceptance, orders for the purchase of Shares, and confirm
subscription activity with the investor.
(b) Maintain an escrow or other bank account to facilitate receipt of monies
prior to movement to custody account.
(c) Deliver accepted subscription payment and appropriate documentation to the
custodian and report the activity to Investment Manager as specified.
(d) Pursuant to purchase orders, issue the appropriate number of Shares and
hold such Shares in the appropriate investor account.
(e) Receive for acceptance, repurchase requests and deliver the appropriate
documentation to the custodian.
(f) Calculate and pro-rate request to repurchase Shares, as instructed from
Trust.
(g) Calculate and track any fees or holdbacks associated with repurchases.
(h) As and when it receives monies paid to it by the Custodian with respect to
any repurchase, pay the repurchase proceeds as required by the Fund's prospectus
pursuant to which the repurchased Shares were offered and as instructed by the
repurchasing investors.
(i) Process investor transfer requests, subject to obtaining appropriate
documentation and consents as required of the purchaser.
(j) Receive for acceptance letters of transmittal for the repurchase of Shares
pursuant to Fund repurchase offers and communicate with Administrator and
Investment Manager.
(k) Process investor pledge request subject to obtaining appropriate
documentation and consent as TA and Fund may require
3. NOTES AND CONDITIONS TO PURCHASE, REPURCHASES AND TRANSFER OF SHARES:
(a) Atlantic may require any or all of the following in connection with the
original issue of Shares: (i) instructions requesting the issuance, (ii)
evidence that the Board has authorized the issuance, (iii) any required funds
for the payment of any original issue tax applicable to such Shares, and (iv) an
opinion of the counsel to the Fund regarding the legality and validity of the
issuance.
(b) Shares shall be issued in accordance with the terms of the Fund's then
current prospectus after Atlantic receives either of the following, in each
case in good order and with such additional items or materials as may be
required by the Fund's policies and procedures, Atlantic's operational
procedures:
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(i) (A) an instruction directing investment in the Fund, (B) a check (other
than a third party check) or a wire or other electronic payment in the
amount designated in the instruction, and (C) in the case of an initial
purchase, a completed subscription and other appropriate documentation; or
(ii) the information required for purchases pursuant to a selected dealer
agreement, processing organization agreement, or a similar contract with a
financial intermediary.
(c) Investor payments shall be considered Federal Funds no later than on the
day indicated below unless other times are noted in the Fund's Prospectus:
(i) for a wire received, at the time of the receipt of the wire;
(ii) for a check drawn on a member bank of the Federal Reserve System, on
the next Fund business day following receipt of the check; and
(iii) for a check drawn on an institution that is not a member of the
Federal Reserve System, at such time as Atlantic is credited with Federal
Funds with respect to that check.
(d) In registering transfers of Shares, Atlantic may rely upon the Uniform
Commercial Code as in effect in the State of Delaware or any other statutes
that, in the opinion of Atlantic's counsel, protect Atlantic and the Fund from
liability arising from (i) not requiring complete documentation, (ii)
registering a transfer without an adverse claim inquiry, (iii) delaying
registration for purposes of such inquiry or (iv) refusing registration
whenever an adverse claim requires such refusal. As Transfer Agent, Atlantic
will be responsible for delivery to the transferor and transferee of such
documentation as is required by the Uniform Commercial Code.
4. AML SERVICES
For investors purchasing shares of the fund, other than via Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx, Inc, in its role as a sub-distributor of the Fund,
the Trust delegates to Atlantic the performance of the anti-money
laundering services set forth below (the "AML Services") with respect to
shareholder accounts maintained by Atlantic pursuant to this Agreement; and
subject to the terms and conditions of this Agreement, Atlantic accepts
this delegation and agrees to perform the AML Services in accordance with
the Trust's and Atlantic's AML program and reasonably to cooperate with the
Trust's AML compliance officer (the "AML Compliance Officer") in the
performance of that person's responsibilities. Notwithstanding this
delegation, the Trust shall maintain full responsibility for ensuring that
its AML program is and continues to be reasonably designed to ensure
compliance with the applicable AML laws.
(e) Verify shareholder identity upon opening new customer accounts in
accordance with Section 326 of the USA PATRIOT Act (the "Patriot Act") and any
regulations thereunder, as required under Applicable Law;
(f) Monitor shareholder transactions and identify and report suspicious
activities that are required to be so identified and reported, in each case
consistent with the AML programs of the Trust and Atlantic;
- 20 -
(g) Review all new accounts and registration maintenance transactions against
the Office of Foreign Asset Control ("OFAC") database and other such lists or
databases of trade restricted individuals or entities as may be required from
time to time by applicable regulatory authorities, including review of such
shareholder information upon changes to such databases;
(h) Follow the Trust's policies with respect to the acceptance of cash
equivalents and third party checks; provided, however, that unless the parties
agree otherwise under no circumstance will Atlantic accept a corporate third
party check;
(i) Place holds on transactions in shareholder accounts or freeze shareholder
accounts, as provided in the AML programs of the Trust and Atlantic and in
accordance with the Patriot Act and OFAC;
(j) (i) Atlantic will reasonably cooperate with the Trust to accommodate
non-material changes and adjustments to agreed upon services, maintaining
reasonably adequate policies, procedures and internal controls that are
consistent with the Trust's AML program as in effect from time-to-time, (ii)
conduct (or have a third party conduct) an independent review of its AML Program
at least annually and provide the report of such independent review to the Trust
and the Trust's AML Compliance Officer; and (iii) maintain a reasonable, ongoing
training program with respect to its own personnel relating to AML matters.
5. NOTES AND CONDITIONS TO AML SERVICES
(a) The Trust authorizes Atlantic to take such actions in the performance of the
AML Services as Atlantic deems appropriate and consistent with the Trust's AML
program and applicable AML Laws;
(b) Atlantic agrees to furnish the Trust its written program concerning
anti-money laundering services rendered by Atlantic to its various clients.
Atlantic agrees to notify the Trust of any changes to its anti-money laundering
program that individually or in the aggregate would materially impact the
Trust's AML program;
(c) Atlantic shall make its relevant personnel available to meet or speak with
the Board concerning the AML Services at such intervals as may be reasonably
necessary or appropriate.
(d) Atlantic represents and warrants to the Trust that (i) Atlantic has adopted
and will maintain a written program concerning the anti-money laundering
services it provides to its various clients, and (ii) Atlantic's policies and
procedures are reasonably adequate for it to provide the AML Services and
comply with its obligations under this Agreement.
- 21 -
6. PROCESSING DISTRIBUTIONS
Prepare and, subject to receipt of good funds therefore from the custodian,
transmit to investors (or credit the appropriate investor accounts) payments
for all distributions declared by the Fund.
7. IDENTITY THEFT SERVICES
(a) Provide the Fund with prompt written notification of (i) any transaction or
combination of transactions that Atlantic believes, based on the Fund Identity
Theft Prevention Program, evidence money laundering or identity theft activities
in connection with the Fund or any investor of the Fund and (ii) any customer(s)
that Atlantic reasonably believes, based upon the Fund Identity Theft Prevention
Program, to be engaged in money laundering or identity theft activities,
provided that the Fund agrees not to communicate this information to the
customer;
(b) Provide the Fund with any reports received by Atlantic from any government
agency or applicable industry self-regulatory organization pertaining to the
Atlantic Identity Theft Prevention Program or the Fund Identity Theft
Prevention Program.
(c) Provide the Fund with prompt written notification of any action taken in
response to identity theft activity as described in (a), (b) or (c).
(d) Permit United States federal regulators access to such information and
records maintained by Atlantic and relating to Atlantic's implementation of the
Fund Identity Theft Prevention Program, on behalf of the Fund, as they may
request, and permit such regulators to inspect Atlantic's implementation of the
Fund Identity Theft Prevention Program on behalf of the Fund.
8. PAYMENTS TO FINANCIAL INTERMEDIARIES, REPURCHASE FEES
(a) Track investor accounts by financial intermediary source and otherwise as
reasonably requested by the Fund.
(b) Calculate, report to the Fund and receive from investors or debit investor
accounts for sales commissions and service fees.
(c) Calculate, report to the Fund, subject to receipt of good funds, transmit
payments to underwriters for commissions, service fees and other payments due
from the Fund or any distributor.
(d) Calculate, report to the Fund and withhold repurchase fees and pay the
amount of any repurchase fees to the Fund.
- 22 -
9. BLUE SKY / ESCHEATMENT
(a) Calculate the total number of Shares of the Fund and, if applicable, class
thereof sold in each reporting jurisdiction authorized by the Fund.
(b) Monitor and prepare and make appropriate filings with respect to the
escheatment laws of the various states and territories of the United States.
Atlantic may, in its sole discretion, use the services of a third party to
perform some or all such services.
(c) Perform the services as are required to comply with Rule 17Ad-17 of the
Securities Exchange Act of 1934, as amended, including:
(i) documentation of search policies and procedures;
(ii) execution of required searches;
(iii) tracking of results and maintaining applicable data; and
(iv) preparing and submitting applicable data.
Atlantic may use the services of a third party to perform some or all such
services.
(d) Atlantic will provide SEI with sufficient information to allow SEI to
perform the duties of monitoring sales of Shares for compliance with state blue
sky laws as well as to register or prepare applicable filings with respect to
the Shares with the various state and other securities commissions of the
United States and its territories.
10. RECORDKEEPING AND REPORTING; FACILITIES
(a) Record the issuance of Shares of the Fund and maintain pursuant to Rule
17Ad-10(e) under the 1934 Act a record of the total number of Shares of the Fund
and, if applicable each Class thereof, that are authorized, based upon data
provided to it by the Fund, and are issued and outstanding and provide the Fund
on a monthly basis a report of the total number of Shares that are registered
with the SEC, authorized, issued and outstanding.
(b) Maintain records of accounts and provide reports and statements to the Fund
and Investors.
IN ADDITION TO OTHER REFERENCES HEREIN REGARDING RECORDS TO BE MAINTAINED,
MAINTAIN SUCH RECORDS AS (I) MAY BE REQUIRED BY LAWS APPLICABLE TO ATLANTIC AND
(II) ARE PRUDENTLY AND CUSTOMARILY MAINTAINED BY THIRD-PARTY TRANSFER AGENTS
FOR REGISTERED MANAGEMENT INVESTMENT COMPANIES.
- 23 -
SCHEDULE A: FEE SCHEDULE
NOTE: The following Fee Schedule relates to the Services Agreement by and
between Atlantic Shareholder Services, LLC and Xxxxxx Diversified Opportunities
Fund (the "AGREEMENT"). Capitalized terms used but not defined herein shall
have the meanings assigned thereto in the Agreement.
Defined terms in this Fee Schedule have the meanings set forth in the
Agreement, as amended from time to time.
ANNUAL NET ASSET-BASED FEE
* One half of 1.0 basis point (0.005%) on the total assets
ANNUAL ACCOUNT FEES
* $24 per open account
* Open account fees subject to an $12,000 minimum per Fund for the
first 10 accounts (excluding the seed account) and $24,000 minimum per
Fund for greater than 10 accounts (as defined on the transfer agency
system)
* $2.04 per closed account
OPTIONAL SERVICES
* Transfer Agent for Controlled Foreign Corporation: $12,000 annually
* Client/intermediary internet access: $1,200 annually
* Blue Sky administration: $65 annually for each permit or similar
state registration
* Customized development: $200 per hour
OUT-OF-POCKET EXPENSES
Out of pocket expenses include, but are not limited to, banking fees; Blue Sky
state sales charges; CIP scanning; data storage; escheatment vendor; FinCEN;
imaging; literature fulfillment; mailing, postage and printing; NSCC fees;
OFAC; paper stock; proxy services; record retention; regulatory enhancements;
telecommunications; and SSAE 16 allocation.
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