FAS Duties As Administrator, and subject to the supervision and control of the Investment Company’s Board of Trustees/Directors (the “Board”), FAS will provide facilities, equipment, and personnel to perform or cause to be performed the following “Administrative Services” for operation of the business and affairs of the Investment Company and each of its Funds, as such Administrative Services are applicable to each Fund, and any additional Administrative Services that FAS shall agree in writing to perform, or cause to be performed, for the Investment Company with respect to any Fund from time to time:
A. LEGAL AND COMPLIANCE ADMINISTRATIVE SERVICES
1. Prepare, file, and maintain the Investment Company's governing documents and any amendments thereto, including the charter documents, the by-laws and minutes of meetings of the Board, Board Committees and Shareholders.
2. Prepare and file with the Securities and Exchange Commission (the “SEC”) and the appropriate state securities authorities: (i) the registration statements for the Investment Company and the Investment Company's Shares and all amendments thereto, (ii) annual and semi-annual reports to shareholders and other applicable regulatory reports and communications; (iii) proxy materials; (iv) notices pursuant to Rule 24f-2; and (v) such other documents all as may be necessary to enable the Investment Company to continuously offer its shares.
3. For each Fund that is an ETF, prepare and file with NYSE Arca, Inc., the Cboe BZX Exchange, Inc., The Nasdaq Stock Market LLC (each an “Exchange”), as applicable, (i) an initial listing application; and (ii) such other documents, reports and filings as may be required by the applicable Exchange for the ETF to maintain the listing of its Shares on the Exchange and to otherwise comply with the rules of the Exchange.
4. Prepare and administer contracts on behalf of the Investment Company and supervise relationships with the Investment Company’s other service providers, including , the Investment Company's investment advisers, sub-advisers, fund accountants, custodians, transfer agents, distributors, and in the case of ETFs, authorized participants, subject to any terms and conditions established by the Board and the requirements of the 1940 Act, such supervision may include the engagement of outside consultants from time to time, at FAS’s expense, to review the relationship contracts and recommend changes designed to reduce Fund expenses.
5. Provide due diligence of the Investment Company’s other service providers, including, the Investment Company's investment advisers, sub-advisers, fund accountants, custodians, transfer agents, distributors, and in the case of ETFs, authorized participants, to the extent not otherwise provided by the Investment Company’s other service providers.
6. Arrange for and attend shareholders’ meetings; prepare the Investment Company’s representatives who will attend shareholder meetings and all necessary materials in connection with such meetings including, a written script for such meetings, minutes and any follow-up documents.
7. Provide the Investment Company with legal guidance with respect to its regulated activities, including prospectus disclosures, investment activities, affiliated transactions, investment in senior securities, sales, redemptions and exchanges, distribution of income and capital gains, distribution of Shares, Board composition, code of ethics, fidelity bond, custodial services and service provider contracts and the general application of securities laws and regulations to the Investment Company’s business and provide or arrange for all other legal services that constitute Administrative Service required by the Investment Company and not otherwise provided for under this Agreement (it being understood that various legal services will be provided to the Investment Company, the Board and the Independent Trustees at the expense of the Investment Company, as described herein).
8. Supervise outside legal counsel retained at the expense of the Investment Company with respect to litigation brought by the Investment Company (including participation in class-action lawsuits) and against the Investment Company and negotiate litigation settlements and pre-litigation settlements and work-out arrangements.
9. Obtain the required documentation to be filed in connection with any lawsuits against the Investment Company and provide information and expertise on administrative matters affecting such litigation.
10. Supervise outside legal counsel retained at the expense of the Investment Company with respect to, and review all contracts, filings and required documentation concerning, the acquisition of other investment companies or the liquidation of the Fund; provide guidance on the manner such transactions should be structured to comply with applicable law and obtain at the Investment Company’s expense, legal opinions and regulatory authority rulings necessary for such transactions to comply with applicable law.
11. Using reasonable judgement and subject to any terms and conditions established by the Board and the requirements of the 1940 Act and in consultation with Fund Treasury, determine on behalf of the Investment Company whether or not to participate in domestic and/or offshore class-action lawsuits in which the Investment Company is eligible to participate, and provide guidance to Fund Treasury regarding the Investment Company’s participation in any such class-action lawsuits.
12. Seek formal guidance from regulatory authorities concerning the application of various regulations to the Investment Company and seek exemptive relief, where appropriate.
13. Subject to the Board’s direction, coordinate meetings of the Board (and its committees), including: (i) the creation of notices, agendas, legal memoranda and administrative reports, and (ii) the review and compilation of other materials prepared by the Investment Company’s adviser, distributor, portfolio accountant, custodian, transfer agent, auditor, independent counsel or other service providers to support the Board’s discussions and actions taken.
14. Negotiate and secure for the Investment Company and its directors and officers: (i) a fidelity bond in an amount that is at least adequate to satisfy the requirements of the 1940 Act, (ii) directors and officer’s coverage and (iii) professional liability or errors and omissions coverage, in each case, under terms that are acceptable to the Board.
15. Monitor changes in applicable regulations and make corresponding changes in, or develop new, policies and procedures for the Fund or for the applicable service provider.
16. Prepare, review and negotiate standard forms of indentures, guarantees, agreements, certificates, confirmations and other documentation relating to the legal terms of securities eligible for purchase by money market funds, provided that FAS shall not have any obligation to: (i) provide any written legal opinions regarding such securities; or (ii) prepare, review or negotiate any document for which a standard form has not been developed and accepted for use by the investment company industry.
17. Perform the following “blue sky” services, either itself or through one or more affiliated or unaffiliated service providers: (1) provide a system to monitor the total number of Shares of the Investment Company (and/or Class) sold in each State, (2) monitor the total number of Shares of such Investment Company (and/or Class) sold in each State and, where appropriate, increase the number of Shares registered in such State, (3) with respect to shareholders of the Investment Company whose shareholdings are fully-disclosed on the transfer agent’s recordkeeping system, (a) identify those transactions and assets to be treated as exempt from blue sky reporting for each State and (b) verify the classification of transactions for each State on the transfer agent’s recordkeeping system, and (4) with respect to shareholders of the Investment Company whose shareholdings are not fully-disclosed on the transfer agent’s recordkeeping system, rely upon information provided by the relevant financial intermediary transacting for such holder of Shares in performing the obligations set forth in subsection (2) above.
18. Provide compliance services, as directed by the Investment Company’s Chief Compliance Officer, which include monitoring the Investment Company’s compliance with its policies and procedures, and with applicable federal, state and foreign securities laws, the rules and regulations thereunder, and the rules of the Exchanges, as applicable.
19. For each Fund that is an ETF, administer and maintain the availability of the website required for each ETF by the ETF Rule. In such capacity, FAS will, among other things, contract with a third party service provider for or otherwise arrange for access to, and publish all information required by the ETF Rule on the website on each business day in accordance with the ETF Rule and the applicable Fund policies and procedures. Such information includes: (i) before the opening of regular trading on the primary listing Exchange of the Fund’s shares, the following information for each portfolio holding that will form the basis of the next calculation of the Fund’s net asset value (“NAV”): (a) Ticker symbol, (b) CUSIP or other identifier, (c) description of holding, (d) quantity of each security or other asset held, and (e) percentage weight of the holding in the portfolio; (ii) the Fund’s NAV, market price, and the premium or discount at which the it is trading, each as of the end of the prior business day, on a daily basis; (iii) the Fund’s median bid-ask spread, expressed as a percentage rounded to the nearest hundredth, over the most recent 30 calendar days; (iv) a table showing the number of days the Fund’s shares traded at a premium or discount during the most recently completed calendar year and for the most recently completed calendar quarter(s) of the current year (or the life of the Fund, if shorter); (v) a line graph showing the Fund’s premiums and discounts for the most recently completed calendar year and for the most recently completed calendar quarter(s) of the current year (or the life of the Fund, if shorter); and (vi) if the share premium or discount at which the Fund is trading is greater than 2% for more than seven consecutive trading days, a statement that the Fund’s premium or discount, as applicable, was greater than 2% and a discussion of the factors that are reasonably believed to have materially contributed to the premium or discount (this information must be posted on the website on the day immediately after the disclosure requirement is triggered and must remain on the Fund’s website for one year after its initial posting).
20. Administer the Investment Company’s code of ethics.
21. Monitor the Investment Company’s compliance with its investment policies, objectives and restrictions as set forth in its currently effective registration statement.
22. Implement and maintain, together with affiliated companies, a business continuation and disaster recovery program for the Investment Company.
23. Assist the Investment Company in regulatory examinations, inspections or investigations of the Investment Company.
24. Provide the following administrative and compliance services with regard Commodity Futures Trading Commission (“CFTC”) Rule 4.5 (as may be amended from time to time): (i) monitor the Investment Company’s compliance with the rule; (ii) with respect to those Funds that are required under the rule to register as ‘commodity pools’ from time to time (the “Registered Funds”) prepare, file and maintain the Registered Funds’ registrations with the CFTC or applicable self-regulatory authority, as appropriate; (iii) with respect to those Funds that are subject to the rule but qualify for an exemption from registration as ‘commodity pools’, prepare, file and monitor the companies’ exemptive filings with the CFTC or applicable self-regulatory authority, as appropriate; (iv) in relation to the Registered Funds’ commodity pool status, prepare, file and maintain the Registered Funds advisers’ registrations as ‘commodity pool operators’ (“CPOs”) and prepare and file such reports as are required to be filed by the CPOs with the CFTC or applicable self-regulatory authority, as appropriate; and (v) any additional administrative and compliance services with regard to the Investment Company’s and CPOs’ CFTC Rule 4.5 activities, as directed by the Investment Company’s Chief Compliance Officer, from time to time (collectively, “CFTC Rule 4.5 Administrative Services”).
25. Provide administrative and compliance support services, as requested by the Derivatives Risk Management Administrator, for those Funds that transact in derivatives, which includes monitoring compliance with policies and procedures and applicable laws, rules and regulations.
B. FINANCIAL ADMINISTRATIVE SERVICES
1. Prepare and file the Investment Company’s tax returns.
2. Evaluate and obtain custody services from a financial institution that meets the requirements of the 1940 Act.
3. Compare, as applicable, the fund accountant’s calculation of the Investment Company’s net asset value, yield, dividends, fund total return and performance and total assets with the fund accountant’s previous calculations and with changes in the relevant securities market on a daily basis for reasonableness of changes.
4. With respect to each Fund that is an ETF, contract for and coordinate the intra-day publication, every 15 seconds throughout the trading day, through the facilities of the Consolidated Tape Association an amount (sometimes referred to as the “INAV”) equal to the sum of the current value of the portfolio positions as reflected in the Fund Deposit (as defined in the Fund’s prospectus) divided by the number of Fund shares outstanding.
5. Review and compare, as applicable, the calculation of the Investment Company’s average maturity with the previous calculations for reasonableness of changes.
6. Support the Investment Company's investment advisers as the “Valuation Designees” under Rule 2a-5 of the 1940 Act. Evaluate and recommend the pricing services used by the Investment Company; support the fair valuation of portfolio securities as required by the Investment Company’s fair valuation procedures; review and recommend changes to the Investment Company’s fair valuation procedures.
7. Compare the fund accountant’s calculations of the Investment Company’s undistributed net income balances with the fund accountant’s previous calculations for reasonableness of changes.
8. Perform daily reviews, as applicable, of the fund accountant’s shadow net asset value calculations with the previous calculations for reasonableness of changes; notify designated parties, as necessary, of deviations in compliance with the Investment Company’s Rule 2a-7 procedures, if any.
9. Perform monthly comparison of the fund accountant’s performance calculations with previous calculations for reasonableness of changes.
10. Perform quarterly comparison of the fund accountant’s projected annual fund expenses with previous projections for reasonableness of changes; prepare monthly budgets for specific expense categories to be used in monthly updates to the Investment Company’s expense accruals and projections.
11. Review fund expense reports prepared by the fund accountant; monitor compliance with the expense limits stated in the prospectus fee tables, including disclosure regarding which expense categories should be accrued in addition to the expense limits.
12. Coordinate and track the payment of all fund expenses that are paid directly by the Fund by the Investment Company’s fund accountant. With respect to each Fund that is an ETF, review and monitor the payment of all fund expenses paid by the investment adviser to the ETF under the terms of the Investment Advisory Agreement with the Fund to confirm payment.
13. Compare the fund accountant’s calculation of dividend recommendations with previous recommendations for reasonableness of changes; consult with portfolio managers concerning recommendations for fixed dividend resolution funds.
14. Calculate and determine capital gain distributions, if any, for the Investment Company.
15. Review the fund accountant’s calculations for
Rights, Duties and Responsibilities of Escrow Agent It is understood and agreed that the duties of the Escrow Agent are purely ministerial in nature, and that:
5.1 The Escrow Agent shall notify the Issuer, on a daily basis, of the Escrow Amounts which have been deposited in the Bank Account and of the amounts, constituting the Fund, which have cleared the banking system and have been collected by the Escrow Agent.
5.2 The Escrow Agent shall not be responsible for or be required to enforce any of the terms or conditions of any agreement between the Issuer and third parties nor shall the Escrow Agent be responsible for the performance by the Issuer of its respective obligations under this Agreement.
5.3 The Escrow Agent shall not be required to accept from the Issuer any Subscription Information pertaining to prospective purchasers unless such Subscription Information is accompanied by checks, cash, or wire transfers meeting the requirements of Section 3.1, nor shall the Escrow Agent be required to keep records of any information with respect to payments deposited except as to the names, addresses and amounts of such payments; however, the Escrow Agent shall notify the Issuer promptly of any discrepancy between the amount set forth in any Subscription Information and the amount delivered to the Escrow Agent therewith. Such amount need not be accepted for deposit in the Escrow Account until such discrepancy has been resolved.
5.4 The Escrow Agent shall be under no duty or responsibility to enforce collection of any check delivered to it hereunder. The Escrow Agent, within a reasonable time, shall return to the Issuer any check received which is dishonored, together with Subscription Information, if any, which accompanied such check.
5.5 The Escrow Agent shall be entitled to rely upon the accuracy, act in reliance upon the contents, and assume the genuineness of any notice, instruction, certificate, signature, instrument or other document which is given to the Escrow Agent pursuant to this Agreement without the necessity of the Escrow Agent verifying the truth or accuracy thereof. The Escrow Agent shall not be obligated to make any inquiry as to the authority, capacity, existence or identity of any person purporting to give any such notice or instructions or to execute any such certificate, instrument or other document.
5.6 If the Escrow Agent is uncertain as to its duties or rights hereunder or shall receive instructions with respect to the Bank Account, the Escrow Amounts or the Fund which, in its sole determination, are in conflict either with other instructions received by it or with any provision of this Agreement, it shall be entitled to hold the Escrow Amounts, the Fund, or a portion thereof, in the Bank Account pending the resolution of such uncertainty to the Escrow Agent’s sole satisfaction, by final judgment of a court or courts of competent jurisdiction or otherwise; or the Escrow Agent, at its sole option, may deposit the Fund (and any other Escrow Amounts that thereafter become part of the Fund) with the Clerk of a court of competent jurisdiction in a proceeding to which all parties in interest are joined. Upon the deposit by the Escrow Agent of the Fund with the Clerk of any such court, the Escrow Agent shall be relieved of all further obligations and released from all liability hereunder.
5.7 The Escrow Agent shall not be liable for any action taken or omitted hereunder, or for the misconduct of any employee, agent or attorney appointed by it, except in the case of willful misconduct or gross negligence. The Escrow Agent shall be entitled to consult with counsel of its own choosing and shall not be liable for any action taken, suffered or omitted by it in accordance with the advice of such counsel.
5.8 The Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Escrow Amounts, the Fund or any part thereof or to file any financing statement under the Uniform Commercial Code with respect to the Fund or any part thereof.