CONTEXT CAPITAL FUNDS Amendment No. 1 to Administration, Bookkeeping and Pricing Services Agreement
Exhibit 99.(h)(1)
Amendment No. 1 to
Administration, Bookkeeping and
Pricing Services Agreement
THIS AMENDMENT is made as of February 29, 2016, by and between ALPS Fund Services, Inc. (“ALPS”), Context Capital Funds Trust (the “Trust”), and Beacon Hill Fund Services, Inc. (“Beacon Hill”).
WHEREAS, ALPS, the Trust and Beacon Hill have entered into an Administration, Bookkeeping and Pricing Services Agreement, dated November 1, 2015 (the “Agreement”); and
WHEREAS, ALPS, the Trust and Beacon Hill wish to modify the provisions of Appendix B - SERVICES to the Agreement;
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
| 1. | APPENDIX B – SERVICES. APPENDIX B – SERVICES to the Agreement is replaced in its entirely with the attached APPENDIX B – SERVICES. |
| 2. | Remainder of the Agreement. Except as specifically set forth herein, all other provisions of the Agreement shall remain in full force and effect. Any items not herein defined shall have the meaning ascribed to them in the Agreement. |
[signature page follows]
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IN WITNESS WHEREOF, this Amendment has been executed by a duly authorized representative of each of the parties hereto as of the date of this Amendment first set forth above.
| CONTEXT CAPITAL FUNDS | ||
| By: | /s/ Xxxxx Xxxxxxxx | |
| Name: | Xxxxx Xxxxxxxx | |
| Title: | President | |
| ALPS FUND SERVICES, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxx | |
| Title: | Chief Operating Officer | |
| BEACON HILL FUND SERVICES, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| Title: | President | |
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APPENDIX B
SERVICES
| I. | Financial Administration |
| § | Prepare annual and semi-annual financial statements |
| ○ | Utilize templates for standard layout and printing |
| § | Prepare Forms N-SAR, N-Q and 24f-2 |
| § | Host annual financial audits |
| § | Provide daily investment restriction compliance monitoring support and reporting |
| § | Calculate monthly SEC standardized total return performance figures |
| § | Prepare required reports for quarterly Board meetings |
| § | Monitor expense ratios |
| § | Maintain budget vs. actual expenses |
| § | Manage fund invoice approval and xxxx payment process |
| § | Assist with placement of Fidelity Bond and E&O insurance |
| § | Coordinate reporting to outside agencies including Morningstar, etc. |
| II. | Fund Accounting |
| § | Calculate daily NAVs |
| § | Transmit daily NAVs to NASDAQ, Transfer Agent and other third parties |
| § | Compute yields, expense ratios, portfolio turnover rates, etc. |
| § | Reconcile cash and investment balances with the custodian |
| § | Support preparation of financial statements |
| § | Prepare and maintain required Fund Accounting records in accordance with the 1940 Act |
| § | Obtain security valuations from appropriate sources consistent with the Fund’s pricing and valuation policies |
| III. | Tax |
| § | Calculate dividend and capital gain distribution rates, including distributions necessary to avoid excise tax* |
| § | Calculate tax disclosure information (ROCSOP) for the audited financial statements |
| § | Prepare and coordinate filing of income and excise tax returns* |
| § | Monitor on a quarterly basis the Fund’s status as a regulated investment company under Subchapter M of the Internal Revenue Code of 1986, as amended |
| § | Calculate and monitor applicable book-to-tax differences and assist in identifying securities that give rise to book-to-tax differences** |
| § | Calculate year-end tax characterization for distributions paid during the calendar year |
| IV. | Legal |
| § | File Form N-SAR |
| B-1 |
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* The Fund’s independent auditors provide review and sign-off on excise distributions and income and excise tax returns. ALPS shall not analyze or investigate information or returns for foreign tax filings. In the event the independent auditors require ALPS to perform a foreign capital gain analysis, ALPS reserves the right to charge the Fund for the foreign capital gain analysis, subject to agreement by ALPS and Fund management. ALPS also reserves the right to use the Gainskeeper straddle system in the event the Fund uses derivatives that create tax straddles. State income or franchise tax return preparation is limited to the initial state of nexus and does not include additional state filing requirements that may be triggered by underlying investments of the Fund.
** Security classifications to be identified include but are not limited to passive foreign investment company, real estate investment trust, master limited partnership, contingent debt obligations, trust preferred, grantor trust and stapled security. The ultimate determination of the classification of securities will be the responsibility of Fund management or ALPS will use Ernst & Young LLP passive foreign investment company analyzer service, or similar entity, as an out-of-pocket fee.
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ADMINISTRATION, BOOKKEEPING AND
PRICING SERVICES AGREEMENT
THIS AGREEMENT is made as of November 1, 2015, among Context Capital Funds Trust, organized as a Delaware statutory trust with its principal office and place of business at 000 Xxxx X. XxXxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx, Xxxx 00000 (the “Trust”), Beacon Hill Fund Services, Inc. (“Beacon Hill”), an Ohio corporation having its principal place of business at 000 Xxxx X. XxXxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxx 00000 and ALPS Fund Services, Inc., a Colorado corporation with its principal place of business at 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 (“ALPS”).
WHEREAS, the Trust is registered under the Investment Company Act of 1940, as amended (“1940 Act”), as an open-end registered management investment company, presently consisting of the series listed in Appendix A (each, a “Fund” and collectively, the “Funds”);
WHEREAS, Beacon Hill has been engaged by the Trust to provide management and administration services, including fund governance and oversight which is memorialized in a separate agreement and participates in this Agreement solely with respect to the payment of ALPS fees listed in Appendix C ;
WHEREAS, ALPS provides certain administrative, bookkeeping and pricing services to investment companies; and
WHEREAS, the Trust desires to appoint ALPS to perform certain administrative, bookkeeping and pricing services for the Fund, and ALPS has indicated its willingness to so act, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants hereinafter contained, the parties hereto agree as follows:
| 1. | ALPS Appointment and Duties. |
| (a) | The Trust on behalf of the Fund hereby appoints ALPS to provide the administrative, bookkeeping and pricing services for the Fund set forth in Appendix B hereto, as amended from time to time, upon the terms and conditions hereinafter set forth. ALPS hereby accepts such appointment and agrees to furnish such specified services. ALPS shall for all purposes be deemed to be an independent contractor and shall, except as otherwise expressly authorized in this Agreement, have no authority to act for or represent the Trust or the Fund in any way or otherwise be deemed an agent of the Fund. |
| (b) | ALPS may employ or associate itself with a person or persons or organizations as ALPS believes to be desirable in the performance of its duties hereunder; provided that, in such event, the compensation of such person or persons or organizations shall be paid by and be the sole responsibility of ALPS, and neither the Trust nor Beacon Hill shall bear any cost or obligation with respect thereto; and provided further that ALPS shall not be relieved of any of its obligations under this Agreement in such event, including, without limitation, liability to the Fund for such performance in accordance with the terms hereof, and shall be responsible for all acts of any such person or persons or organizations taken in furtherance of this Agreement to the same extent it would be for its own acts. |
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| 2. | ALPS Compensation; Expenses. |
| (a) | In consideration for the services to be performed hereunder by ALPS, Beacon Hill as paying agent on behalf of the Trust, shall pay ALPS the fees listed in Appendix C hereto. Notwithstanding anything to the contrary in this Agreement, fees billed for the services to be performed by ALPS under this Agreement are based on information provided by the Trust or Beacon Hill and such fees are subject to renegotiation between the parties hereto to the extent such information is determined to be materially different from what the Trust or Beacon Hill originally provided to ALPS. During each year of the term of this Agreement, unless the parties shall otherwise agree and provided that the service mix and volumes remain consistent with those provided in the previous year of this Agreement, the fee that would be charged for the same services would be the base fee rate (as reflected in Appendix C) subject to an annual cost of living adjustment based on the Consumer Price Index for Urban Wage Earners and Clerical Workers, for the Denver-Boulder-Greeley area, as published bimonthly by the United States Department of Labor, Bureau of Labor Statistics, or, in the event that publication of such index is terminated, any successor or substitute index, appropriately adjusted, acceptable to all parties. |
| (b) | ALPS will bear all expenses in connection with the performance of its services under this Agreement, except as otherwise provided herein. ALPS will not bear any of the costs of Fund personnel. Other Fund expenses incurred shall be borne by the Fund (or Beacon Hill as paying agent for the Fund) or the Fund’s investment adviser, including, but not limited to, initial organization and offering expenses; litigation expenses; taxes; costs of preferred shares; expenses of conducting repurchase offers for the purpose of repurchasing Fund shares; transfer agency and custodial expenses; interest; Trust trustees’ fees; brokerage fees and commissions; state and federal registration fees; advisory fees; insurance premiums; fidelity bond premiums; Fund and investment advisory related legal expenses; costs of maintenance of Fund existence; printing and delivery of materials in connection with meetings of the Trust’s trustees; printing and mailing of shareholder reports, prospectuses, statements of additional information other offering documents, supplements, proxy materials and other communications to shareholders; securities pricing data and expenses in connection with electronic filings with the U.S. Securities and Exchange Commission (the “SEC”). |
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| 3. | Right to Receive Advice. |
| (a) | Advice of the Trust and Fund Service Providers. If ALPS is in doubt as to any action it should or should not take, ALPS may request directions, advice or instructions from the Trust or, as applicable, the Fund’s investment adviser, custodian or other service providers. |
| (b) | Advice of Counsel. If ALPS is in doubt as to any question of law pertaining to any action it should or should not take, ALPS may request advice from counsel of its own choosing (who may be counsel for the Trust, the Fund’s investment adviser or ALPS, at the option of ALPS); provided, however, that ALPS shall not seek that advice of legal counsel to the Trust or the Trust’s investment adviser without first notifying the Trust’s investment adviser in writing of its intention of doing so. |
| (c) | Conflicting Advice. In the event of a conflict between directions, advice or instructions ALPS receives from the Trust or any Fund service provider and the advice ALPS receives from counsel, ALPS may in its sole discretion rely upon and follow the advice of counsel. ALPS will provide the Trust with prior written notice of its intent to follow advice of counsel that is materially inconsistent with directions, advice or instructions from the Trust. Upon request, ALPS will provide the Trust with a copy of such advice of counsel. |
| 4. | Standard of Care; Limitation of Liability; Indemnification. |
| (a) | ALPS 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. |
| (b) | In the absence of willful misfeasance, bad faith, negligence or reckless disregard by ALPS in the performance of its duties, obligations or responsibilities set forth in this Agreement, ALPS and its affiliates, including their respective officers, directors, agents and employees, shall not be liable for, and the Trust agrees to indemnify, defend and hold harmless such persons from, all taxes, charges, expenses, disbursements, assessments, claims, losses, damages, penalties, actions, suits, judgments and liabilities (including, without limitation, attorneys’ fees and disbursements and liabilities arising under applicable federal and state laws) arising directly or indirectly from the following: |
| (i) | the inaccuracy of factual information furnished to ALPS by an officer of the Trust or an officer of the Fund’s investment adviser, custodian or other service providers, provided they are not also officers of ALPS; |
| (ii) | any error of judgment or mistake of law or for any loss suffered by the Trust in connection with the matters to which this Agreement relates; |
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| (iii) | losses, delays, failure, errors, interruption or loss of data occurring directly or indirectly by reason of circumstances beyond its reasonable control, including without limitation, acts of God, action or inaction of civil or military authority, war, terrorism, riot, fire, flood, sabotage, labor disputes, elements of nature or non-performance by a third party; |
| (iv) | ALPS’s reliance on any instruction, direction, notice, instrument or other information that ALPS reasonably believes to be genuine; |
| (v) | loss of data or service interruptions caused by equipment failure; or |
| (vi) | any other action or omission to act which ALPS reasonably takes in connection with the provision of services to the Trust on behalf of the Fund. |
| (c) | ALPS shall indemnify and hold harmless the Trust and it’s respective officers, directors, agents and employees from and against any and all taxes, charges, expenses, disbursements, assessments, claims, losses, damages, penalties, actions, suits, judgments and liabilities (including, without limitation, attorneys’ fees and disbursements and liabilities arising under applicable federal and state laws) arising directly or indirectly from ALPS’s willful misfeasance, bad faith, negligence or reckless disregard in the performance of its duties, obligations or responsibilities set forth in this Agreement. |
| (d) | Notwithstanding anything in this Agreement to the contrary, no party shall be liable under this Agreement to another party hereto for any punitive, consequential, special or indirect losses or damages. Any indemnification payable by a party to this Agreement shall be net of insurance maintained by the indemnified party as of the time the claim giving rise to indemnity hereunder is alleged to have arisen to the extent it covers such claim. |
| (e) | In any case in which either party (the “Indemnifying Party”) may be asked to indemnify or hold the other party (the “Indemnified Party”) harmless, the Indemnified Party will notify the Indemnifying Party promptly after identifying any situation which it believes presents or appears likely to present a claim for indemnification against the Indemnifying Party, although the failure to do so shall not prevent recovery by the Indemnified Party, and shall keep the Indemnifying Party advised with respect to all developments concerning such situation. The Indemnifying Party shall have the option to defend the Indemnified Party against any claim which may be the subject of this indemnification, and, in the event that the Indemnifying Party so elects, such defense shall be conducted by counsel chosen by the Indemnifying Party and reasonably satisfactory to the Indemnified Party, and thereupon the Indemnifying Party shall take over complete defense of the claim and the Indemnified Party shall sustain no further legal or other expenses in respect of such claim. The Indemnified Party will not confess any claim or make any compromise in any case in which the Indemnifying Party will be asked to provide indemnification, except with the Indemnifying Party’s prior written consent. |
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| 5. | Activities of ALPS. The services of ALPS under this Agreement are not to be deemed exclusive, and ALPS shall be free to render similar services to others. The Trust recognizes that from time to time directors, officers and employees of ALPS may serve as directors, officers and employees of other corporations or businesses (including other investment companies) and that such other corporations and businesses may include ALPS as part of their name and that ALPS or its affiliates may enter into administrative, bookkeeping, pricing agreements or other agreements with such other corporations and businesses. |
| 6. | Accounts and Records. The accounts and records maintained by ALPS on behalf of the Fund shall be the property of the Trust. ALPS shall prepare, maintain and preserve such accounts and records as required by the 1940 Act and other applicable securities laws, rules and regulations. ALPS shall surrender such accounts and records to the Trust, in the form in which such accounts and records have been maintained or preserved, promptly upon receipt of instructions from the Trust. The Trust shall have access to such accounts and records at all times during ALPS’s normal business hours. Upon the reasonable request of the Trust, copies of any such books and records shall be provided by ALPS to the Trust at the Trust’s expense. ALPS shall assist the Trust, the Fund’s independent auditors, or, upon approval of the Trust, any regulatory body, in any requested review of the Fund’s accounts and records and reports by ALPS or its independent accountants concerning its accounting system and internal auditing controls will be open to such entities for audit or inspection upon reasonable request. In the event ALPS receives a request or demand for the inspection of records relating specifically to the Fund or the Trust, ALPS will promptly notify the Trust of such request in writing and obtain instructions from the Trust as to the handling of such request, unless such notification is prohibited by law. |
| 7. | Confidential and Proprietary Information. ALPS agrees that it will, on behalf of itself and its officers and employees, treat all transactions contemplated by this Agreement, and all records and information relative to the Fund and its current and former shareholders and other information germane thereto, as confidential and as proprietary information of the Fund and not to use, sell, transfer or divulge such information or records to any person for any purpose other than performance of its duties hereunder, except after prior notification to and approval in writing from the Trust, which approval shall not be unreasonably withheld. Approval may not be withheld where ALPS may be exposed to civil, regulatory or criminal proceedings for failure to comply, when requested to divulge such information by duly constituted authorities, or when requested by the Trust. When requested to divulge such information by duly constituted authorities, ALPS shall notify the Trust, unless such notification is prohibited by law, and shall use reasonable commercial efforts to request confidential treatment of such information. ALPS 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 Fund and its current and former shareholders. |
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| 8. | Compliance with Rules and Regulations. ALPS shall comply (and to the extent ALPS takes or is required to take action on behalf of the Fund hereunder shall cause the Fund to comply) with all applicable requirements of the 1940 Act and other applicable laws, rules, regulations, orders and code of ethics, as well as all investment restrictions, policies and procedures adopted by the Trust on behalf of the Fund of which ALPS has knowledge (it being understood that ALPS is deemed to have knowledge of all investment restrictions, policies or procedures set out in the Trust’s public filings or otherwise provided to ALPS). Except as set out in this Agreement, ALPS assumes no responsibility for such compliance by the Trust or the Fund. ALPS shall maintain at all times a program reasonably designed to prevent violations of the federal securities laws (as defined in Rule 38a-1 under the 0000 Xxx) with respect to the services provided, and shall provide to the Trust a certification to such effect no less than annually or as otherwise reasonably requested by the Trust. ALPS shall make available its compliance personnel and shall provide at its own expense summaries and other relevant materials relating to such program as reasonably requested by the Trust. |
Portfolio compliance with: (i) the investment objective and certain policies and restrictions as disclosed in each Fund’s prospectus and statement of additional information, as applicable; and (ii) certain SEC rules and regulations (collectively, “Portfolio Compliance”) is required daily and is the responsibility of the Fund’s investment adviser. ALPS will perform Portfolio Compliance testing (post-trade, daily on a T+2 basis) to test the Fund’s Portfolio Compliance (the “Portfolio Compliance Testing”).
The frequency and nature of the Portfolio Compliance Testing and the methodology and process in accordance with which the Portfolio Compliance Testing are conducted are mutually agreed to between ALPS and the Trust. ALPS will report violations, if any, to the Trust and the Fund’s Chief Compliance Officer as promptly as practicable following discovery.
ALPS independently tests Portfolio Compliance based upon information contained in the source reports received by ALPS’s fund accounting department and supplemental data from certain third-party sources. As such, Portfolio Compliance Testing performed by ALPS is limited by the information contained in the fund accounting source reports and supplemental data from third-party sources. The Trust agrees and acknowledges that ALPS’s performance of the Portfolio Compliance Testing shall not relieve the Trust or, the Fund’s investment adviser of their primary day-to-day responsibility for assuring such Portfolio Compliance, including on a pre-trade basis, and ALPS shall not be held liable for any act or omission of the Fund’s investment adviser with respect to Portfolio Compliance.
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| 9. | Representations and Warranties of ALPS. ALPS represents and warrants to the Trust and Beacon Hill that: |
| (a) | It is duly organized and existing as a corporation and in good standing under the laws of the State of Colorado. |
| (b) | It is empowered under applicable laws and by its Articles of Incorporation and By-laws to enter into and perform this Agreement. |
| (c) | All requisite corporate proceedings have been taken to authorize it to enter into and perform this Agreement. |
| (d) | It has and will continue to have access to the necessary facilities, equipment and personnel to perform its duties and obligations under this Agreement in accordance with industry standards. |
| (e) | It will maintain insurance which covers such risks and is in such amounts, with such deductibles and exclusions, sufficient for compliance by ALPS with all requirements of law and sufficient for ALPS to perform its obligations under this Agreement; and all such policies are in full force and effect and are with financially sound and reputable insurance companies, funds or underwriters. |
| 10. | Representations and Warranties of the Trust. The Trust represents and warrants to ALPS that: |
| (a) | It is a statutory trust duly organized and existing and in good standing under the laws of the state of Delaware and is registered with the SEC as an open-end registered investment company. |
| (b) | It is empowered under applicable laws and by its Declaration of Trust and By-laws to enter into and perform this Agreement. |
| (c) | The Board of Trustees of the Trust has duly authorized it to enter into and perform this Agreement. |
| (d) | Notwithstanding anything in this Agreement to the contrary, the Trust agrees not to make any modifications to its registration statement or adopt any policies which would affect materially the obligations or responsibilities of ALPS hereunder without the prior written approval or ALPS, which approval shall not be unreasonably withheld or delayed. |
| (e) | The execution, delivery and performance of this Agreement by Trust (i) does not breach, violate or cause a default under any agreement, contract or instrument to which Trust is a party or any judgment, order or decree to which the Trust is subject; (b) has been duly authorized and approved by all necessary action; and (c) upon the execution and delivery of this Agreement by ALPS, Beacon Hill and the Trust, this Agreement will be a valid and binding obligation of the Trust on behalf of the Fund. |
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| (f) | The officer positions filled by ALPS, if any, shall be covered by the Trust’s Directors & Officers/Errors & Omissions Policy (the “Policy”), and the Trust shall use reasonable efforts to ensure that such coverage be (a) reinstated should the Policy be cancelled; (b) continued after such officers cease to serve as officer(s) of the Trust on substantially the same terms as such coverage is provided for the Trust’s officers after such persons are no longer officers of the Trust; or (c) continued in the event the Trust merges or terminates, on substantially the same terms as such coverage is provided for the Trust officers (but for a period of no less than six years). The Trust shall provide ALPS with proof of current coverage, including a copy of the Policy and shall notify ALPS immediately should the Policy be cancelled or terminated. |
| (g) | The ALPS’s personnel who serve as officers of the Trust, if any, are named officers in the Trust’s corporate resolutions and subject to the provisions of the Trust’s organizational documents regarding indemnification of its officers. |
| (h) | That it has delegated its obligation for payment of fees under this Agreement to Beacon Hill under a separate agreement; however, the Trust agrees that it remains responsible for payment of fees should the payment agency arrangement with Beacon Hill terminate and that it shall promptly notify ALPS in the event that the payment agency arrangement is terminated. |
| 11. | Representations and Warranties of Beacon Hill. Beacon Hill represents and warrants to the Trust and ALPS that: |
| (a) | It is duly organized and existing as a corporation and in good standing under the laws of the Ohio. |
| (b) | It is empowered under applicable laws and by its Articles of Incorporation and By-laws to enter into and perform this Agreement. |
| (c) | All requisite corporate proceedings have been taken to authorize it to enter into and perform this Agreement. |
| (d) | That it has the requisite authority to act as the Trust’s paying agent under a separate agreement. |
| 12. | Documents. The Trust has furnished or will furnish, upon request, ALPS with copies of the Trust’s Declaration of Trust and the Fund’s advisory agreement, custodian agreement, transfer agency agreement, administration agreement, current prospectus, statement of additional information, periodic Trust reports and all forms relating to any plan, program or service offered by the Trust. The Trust shall furnish, within a reasonable time period, to ALPS a copy of any amendment or supplement to any of the above-mentioned documents. Upon request, the Trust shall furnish promptly to ALPS any additional documents necessary or advisable to perform its functions hereunder. As used in this Agreement the terms “registration statement,” “prospectus” and “statement of additional information” shall mean any registration statement, prospectus and statement of additional information filed by the Trust with the SEC and any amendments and supplements thereto that are filed with the SEC. |
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| 13. | Consultation Between the Parties. ALPS and the Trust shall regularly consult with each other regarding ALPS’s performance of its obligations under this Agreement. In connection therewith, the Trust shall submit to ALPS at a reasonable time in advance of filing with the SEC reasonably final copies of any amended or supplemented registration statement (including exhibits) under the Securities Act of 1933, as amended, and the 1940 Act; provided, however, that nothing contained in this Agreement shall in any way limit the Trust’s right to file at any time such amendments to any registration statement and/or supplements to any prospectus or statement of additional information, of whatever character, as the Trust may deem advisable, such right being in all respects absolute and unconditional. |
| 14. | Liaison with Accountants. ALPS shall act as a liaison with the Fund’s independent public accountants and shall provide account analysis, fiscal year summaries, and other tax or audit-related schedules with respect to the services provided to the Fund. ALPS shall take all reasonable action in the performance of its duties under this Agreement to assure that the necessary information is made available to such accountants as reasonably requested or required by the Fund. |
| 15. | Business Interruption Plan. ALPS shall maintain in effect a business interruption plan, and enter into any agreements necessary with appropriate parties making reasonable provisions for emergency use of electronic data processing equipment customary in the industry. In the event of equipment failures, ALPS shall, at no additional expense to the Fund, take commercially reasonable steps to minimize service interruptions. |
| 16. | Duration and Termination of this Agreement. |
| (a) | Initial Term. This Agreement shall become effective as of the date first written above (the “Start Date”) and shall continue thereafter throughout the period that ends three (3) years after the Start Date (the “Initial Term”). Until the end of the Initial Term, this Agreement may be terminated without penalty only by agreement of the parties or for cause pursuant to Section 15(c) hereof. |
| (b) | Renewal Term. If not sooner terminated, this Agreement shall renew at the end of the Initial Term and shall thereafter continue for successive annual periods until terminated by either party upon not less than sixty (60) days’ written notice prior to the expiration of the then current renewal term or for cause pursuant to Section 15(c) hereof. |
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| (c) | Cause. Notwithstanding anything to the contrary elsewhere in this Agreement, the Trust may terminate this Agreement for cause immediately at any time, without penalty, without default and without the payment of any termination payment or other liquidated damages. For purposes of this Section 15, “cause” shall mean: |
| (i) | willful misfeasance, bad faith, negligence or reckless disregard on the part of ALPS in the performance of its duties, obligations and responsibilities set forth in this Agreement; |
| (ii) | in the event ALPS is no longer permitted to perform its duties, obligations or responsibilities hereunder pursuant to applicable law, or regulatory, administrative or judicial proceedings against ALPS which result in a determination that ALPS has violated, or has caused the Trust to violate, in any material respect any applicable law, rule, regulation, order or code of ethics, or any material investment restriction, policy or procedure adopted by the Trust of which ALPS had knowledge (it being understood that ALPS is deemed to have knowledge of all investment restrictions, policies or procedures set out in the Trust’s public filings or otherwise provided to ALPS); or |
| (iii) | financial difficulties on the part of ALPS which are evidenced by the authorization or commencement of, or involvement by way of pleading, answer, consent or acquiescence in, a voluntary or involuntary case under Title 11 of the United States Code, as from time to time in effect, or any applicable law other than said Title 11, of any jurisdiction relating to the liquidation or reorganization of debtors or to the modification or alteration of the rights of creditors. |
| (d) | Deliveries Upon Termination. Upon termination of this Agreement, ALPS agrees to cooperate in the orderly transfer of administrative duties and shall, as soon as reasonably able, deliver to the Trust or as otherwise directed by the Trust (at the expense of the Trust) all records and other documents made or accumulated in the performance of its duties for the Fund hereunder. In the event ALPS gives notice of termination under this Agreement, it will continue to provide the services contemplated hereunder after such termination at the contractual rate for up to 120 days, provided that the Trust uses all reasonable commercial efforts to appoint such replacement on a timely basis. |
| (e) | Fees and Expenses Upon Termination. Should either party exercise its right to terminate, all reasonable out-of-pocket expenses or costs associated with the movement of records and material will be borne by the Trust. Additionally, but only in the event the Trust terminates this Agreement, ALPS reserves the right to charge a reasonable fee for its de-conversion services. |
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| 17. | Assignment. This Agreement shall extend to and shall be binding upon the parties hereto and their respective successors and permitted assigns; provided, however, that this Agreement shall not be assignable by the Trust on behalf of the Fund without the prior written consent of ALPS, or by ALPS without the prior written consent of the Trust on behalf of the Fund. |
| 18. | Governing Law. The provisions of this Agreement shall be construed and interpreted in accordance with the laws of the State of Colorado and the 1940 Act and the rules thereunder. To the extent that the laws of the State of Colorado conflict with the 1940 Act or such rules, the latter shall control. |
| 19. | Names. The obligations of the Fund entered into in the name or on behalf thereof by any director, shareholder, representative, or agent thereof are made not individually, but in such capacities, and are not binding upon any of the directors, shareholders, representatives or agents of the Fund personally, but bind only the property of those Fund listed on Appendix A, and all persons dealing with the Fund must look solely to the property of a particular Fund for the enforcement of any claims against such Fund and not the property of any other Fund or the Trust generally. |
| 20. | Amendments to this Agreement. This Agreement may only be amended by the parties in writing. |
| 21. | Notices. All notices and other communications hereunder shall be in writing, shall be deemed to have been given when received or when sent by telex or facsimile, and shall be given to the following addresses (or such other addresses as to which notice is given): |
To ALPS:
ALPS Fund Services, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
To the Trust:
000 Xxxx X. XxXxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Secretary
Fax: [( ) ]
To Beacon Hill:
Beacon Hill Fund Services, Inc.
000 Xxxx X. XxXxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX 00000
Attn: President: re Context Capital Funds
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| 21. | Counterparts. This Agreement may be executed by the parties hereto on any number of counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. |
| 22. | Entire Agreement. This Agreement embodies the entire agreement and understanding among the parties and supersedes all prior agreements and understandings relating to the subject matter hereof; provided, however, that ALPS may embody in one or more separate documents its agreement, if any, with respect to delegated duties and oral instructions. |
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
| CONTEXT CAPITAL FUNDS | ||
| By: | /s/ Xxxxx Xxxxxxxx | |
| Name: | Xxxxx Xxxxxxxx | |
| Title: | President | |
| ALPS FUND SERVICES, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxx | |
| Title: | Chief Operating Officer | |
| BEACON HILL FUND SERVICES, INC. | ||
| /s/ Xxxxxxx X. Xxxxxx | ||
| Name: | Xxxxxxx X. Xxxxxx | |
| Title: | President | |
APPENDIX A
LIST OF FUNDS
Context Macro Opportunities Fund
APPENDIX B
SERVICES
| I. | Financial Administration |
| § | Prepare annual and semi-annual financial statements |
| o | Utilize templates for standard layout and printing |
| § | Prepare Forms N-SAR, N-Q and 24f-2 |
| § | Host annual financial audits |
| § | Provide daily investment restriction compliance monitoring support and reporting |
| § | Calculate monthly SEC standardized total return performance figures |
| § | Prepare required reports for quarterly Board meetings |
| § | Monitor expense ratios |
| § | Maintain budget vs. actual expenses |
| § | Manage fund invoice approval and xxxx payment process |
| § | Assist with placement of Fidelity Bond and E&O insurance |
| § | Coordinate reporting to outside agencies including Morningstar, etc. |
| II. | Fund Accounting |
| § | Calculate daily NAVs |
| § | Transmit daily NAVs to NASDAQ, Transfer Agent and other third parties |
| § | Compute yields, expense ratios, portfolio turnover rates, etc. |
| § | Reconcile cash and investment balances with the custodian |
| § | Support preparation of financial statements |
| § | Prepare and maintain required Fund Accounting records in accordance with the 1940 Act |
| § | Obtain security valuations from appropriate sources consistent with the Fund’s pricing and valuation policies |
| III. | Tax |
| § | Calculate dividend and capital gain distribution rates, including distributions necessary to avoid excise tax* |
| § | Calculate tax disclosure information (ROCSOP) for the audited financial statements |
| § | Prepare and coordinate filing of income and excise tax returns* |
| § | Monitor on a quarterly basis the Fund’s status as a regulated investment company under Subchapter M of the Internal Revenue Code of 1986, as amended |
| § | Calculate and monitor applicable book-to-tax differences and assist in identifying securities that give rise to book-to-tax differences** |
| § | Calculate year-end tax characterization for distributions paid during the calendar year |
*The Fund’s independent auditors provide review and sign-off on excise distributions and income and excise tax returns. ALPS shall not analyze or investigate information or returns for foreign tax filings. In the event the independent auditors require ALPS to perform a foreign capital gain analysis, ALPS reserves the right to charge the Fund for the foreign capital gain analysis, subject to agreement by ALPS and Fund management. ALPS also reserves the right to use the Gainskeeper straddle system in the event the Fund uses derivatives that create tax straddles. State income or franchise tax return preparation is limited to the initial state of nexus and does not include additional state filing requirements that may be triggered by underlying investments of the Fund.
**Security classifications to be identified include but are not limited to passive foreign investment company, real estate investment trust, master limited partnership, contingent debt obligations, trust preferred, grantor trust and stapled security. The ultimate determination of the classification of securities will be the responsibility of Fund management or ALPS will use Ernst & Young LLP passive foreign investment company analyzer service, or similar entity, as an out-of-pocket fee.
APPENDIX C
COMPENSATION
Annual Fees:
Greater of $205,000* annual minimum or the following basis point fee schedule:
| Annual Net Assets | Basis Points |
| Between $0 - $750M | 4.1 |
| $750M - $1B | 3.0 |
| Above $1B | 2.0 |
$5,000 annual fee per year per each additional share class (exclusive of the first three classes in each Fund)
The above fee schedule is subject to a $35,000 early termination penalty in years 1 and 2 of the initial 3-year contract in addition to any applicable de-conversion fees. For avoidance of doubt, no other penalty or fees shall apply in the event of such an early termination, and no penalty or fees shall apply in the event of a termination after year 2.
Fees are billable on a monthly basis at the rate of 1/12 of the annual fee. Charges are made for a Fund and/or share class in the month opened.
*The annual minimum is subject to an annual cost of living adjustment per Section 2(a) of the Agreement.
Out-of-Pocket Fees:
All reasonable out-of-pocket expenses are passed through to the Trust at cost, including but not limited to: third party security pricing and data fees, Bloomberg fees, Gainskeeper fees, PFIC Analyzer, bank loan sub-accounting fees, Blue Sky permit processing fees and state registration fees, SSAE 16 control review reports, reasonable travel expenses to Board meetings and on-site reviews, printing, filing and mailing fees, fulfillment costs, confirmations and investor statements, postage, statement paper, XXX custodial fees, NSCC interface fees, wire fees and other bank charges, E*Delivery services, customized programming/enhancements and other reasonable out-of- pocket expenses incurred by ALPS in connection with the performance of its duties under its Agreement with the Trust. Beacon Hill shall serve as the paying agent on behalf of the Trust to ALPS for out-of-pocket expenses incurred separate and apart from the annual fee.
LATE CHARGES: All invoices are due and payable upon receipt. Any invoices not paid within thirty (30) days of the invoice date are subject to a one percent (1%) per month financing charge on any unpaid balance but only to the extent permitted by law.
CONVERSION FEES: All data conversion fees will be waived with a 3-year contract; other costs, including significant customized programming charges may be passed-through.
* * * * *
ALPS’ fees are reviewed following an initial period of six months following the effective date of the Agreement; at such point, if any service requests are materially changed from the assumptions provided by the Trust or Beacon Hill Fund Services, Inc.., including the addition of share classes or new Funds, ALPS’ fees will be subject to renegotiation.
ALPS agrees to abide by the terms of the following expense guidelines as set forth immediately below and as amended from time to time:
Context Capital Funds Expense Guidelines
Rev. 9/2015
General
Beacon Hill will reimburse ALPS for actually incurred out-of-pocket expenses with no xxxx-up, provided those expenses are reasonable and comply with the guidelines set forth below. Beacon Hill expects ALPS to use their best efforts to minimize reimbursable out-of-pocket costs both by avoiding unnecessary expenditures and by taking advantage of volume discounts and bulk arrangements that may be available either through the Trust, Beacon Hill or otherwise.
Travel
Beacon Hill expects ALPS to avoid unnecessary travel through such alternatives as teleconferencing. Only coach air fare and mid-size rental cars will be reimbursed. Luxury transportation, including limousines and hire cars, will not be reimbursed unless Beacon Hill has approved the expense in advance. If the service provider is traveling on business for more than one client, Beacon Hill expects the service provider to apportion the expenses appropriately.
Meals and Accommodations
Beacon Hill expects ALPS to use good judgment in selecting hotels and restaurants while traveling on Trust business. Beacon Hill shall reimburse business class hotels and not luxury hotels. Personal incidental expenses incurred while working on Trust matters will not be reimbursed and must be distinguished from those expenses that are appropriately charged to Beacon Hill.
