AMENDMENT TO SERVICES AGREEMENT BY AND AMONG NATIONAL FINANCIAL SERVICES LLC, FIDELITY BROKERAGE SERVICES LLC, FIDELITY INVESTMENTS INSTITUTIONAL OPERATIONS COMPANY, INC., NORTHERN LIGHTS DISTRIBUTORS, INC., AND TRIBUTARY CAPITAL MANAGEMENT, LLC

Exhibit 99.(h)(14)

 

AMENDMENT TO SERVICES AGREEMENT BY AND AMONG NATIONAL FINANCIAL SERVICES LLC, FIDELITY BROKERAGE SERVICES LLC, FIDELITY INVESTMENTS INSTITUTIONAL OPERATIONS COMPANY, INC., NORTHERN LIGHTS DISTRIBUTORS,  INC., AND TRIBUTARY CAPITAL MANAGEMENT,  LLC

 

THIS AMENDMENT, effective as of the first day of August, 2013, is by and among National Financial Services LLC (“NFS”), Fidelity Brokerage Services LLC (“FBS”), Fidelity Investments Institutional Operations Company, Inc. (“FIIOC”), Northern Lights Distributors, LLC (“Distributor”) and Tributary Capital Management, LLC (“Adviser”) (collectively the Distributor and Adviser shall be referred to as “Fund/Agent”);

 

WITNESSETH:

 

WHEREAS, NFS, FBS, FIIOC, and Fund/Agent entered into a Services Agreement dated August 1, 2009  (the “Agreement”), with regard to certain administrative services provided to beneficial owners of shares of mutual funds or other investment products associated with Fund/Agent; and

 

WHEREAS, the parties now desire to amend the Agreement as provided for in the relevant sections thereof.

 

NOW THEREFORE, in consideration of the above premises the parties now amend the Agreement by:

 

(1)                             The following defined terms and associated definitions are hereby deleted from the “Definitions” section of the Agreement and said section is re-lettered accordingly: “Charitable Gift Fund Pools”; “CGF Pools”; “SAI Funds” and “Intermediary Plans.”

 

(2)                              Restating in its entirety Article One, Section I.D as follows:

 

D.                                 Agency Trading

 

Fund/Agent hereby appoints NFS as its agent for the sole and limited purpose of accepting Orders.  NFS hereby accepts its appointment on the terms and conditions set forth herein. Notwithstanding anything in this Agreement to the contrary, NFS shall not be acting as agent for Fund/Agent in any manner whatsoever, except in accepting such Orders. NFS may appoint a third party as its agent (“NFS’ Agent”) for the purpose of receiving Orders on behalf of NFS.  NFS’ Agent may also appoint intermediaries as subagents for the limited purpose of receiving Orders on behalf of NFS. Such Orders received by NFS’ Agent or a subagent shall be deemed received by NFS, and accordingly by Fund/Agent, simultaneously. If Orders are received by NFS, NFS’ Agent or a subagent prior to the Close of Trading on a Business Day or such other time as designated in writing to NFS by Fund/Agent, they shall be treated as having been received by Fund/Agent on such Business Day (“Trade Date”).

 

The parties acknowledge that some Orders may, pursuant to the practices and procedures of the NSCC, be transmitted through the NSCC “Defined Contribution Clearance and Settlement System.” For such Orders, NFS will, by 9:00 A.M. Eastern Time, or other mutually agreed upon time, each Business Day following Trade Date (“TD + l “), provide to Fund/Agent either summarized trading instructions for the net purchase or net redemption of Shares of the Funds or detailed trading instructions based on Orders accepted by NFS or NFS’ Agent prior to Close of

 

 

Trading on the prior Business Day. NFS will provide both summarized and detailed trading instructions to Fund/Agent on TD+1I via Fund/SERV.  Such instructions shall be effected at the public offering price, or such other price as may apply to the transaction, of the Shares of the respective Fund calculated as of the Close of Trading on the Business Day on which the Order was accepted by NFS or NFS’ Agent.

 

(3)                               Restating in its entirety Exhibit A as attached hereto.

 

(4)                              Restating in its entirety Exhibit C as attached hereto.

 

(5)                              Deleting Exhibit D, “Agency Trading Agreement” in its entirety and inserting a blank Exhibit D labeled “Reserved” solely in order to preserve the sequencing of subsequent exhibits.

 

IN WITNESS WHEREOF, the parties have executed this amendment as of the date first written above.

 

Tributary Capital Management, LLC			National Financial Services LLC Member NYSE, SIPC
By:	/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇		By:	/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:	▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇		Name:	▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:	Managing Director		Title:	VP
Date:	9/16/13		Date:	9/26/2013
Northern Lights Distributors, LLC			Fidelity Investments Institutional Operations Company, Inc.
By:	/s/ ▇▇▇▇ ▇▇▇▇▇▇▇		By:	/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name:	▇▇▇▇ ▇▇▇▇▇▇▇		Name:	▇▇▇▇▇▇ ▇▇▇▇▇
Title:	CCO		Title:	SVP
Date:	9/20/13		Date:	9/25/2013
			Fidelity Brokerage Services LLC Member NTSE, SIPC
			By:	/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
			Name:	▇▇▇▇▇▇▇ ▇▇▇▇▇▇
			Title:	EVP Funds Network
			Date:	9/25/2013

 

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EXHIBIT A

 

FEE SCHEDULE

 

Part I - Universal Fees

 

The fees set forth in this Part I apply to both the Brokerage Channels and FIIOC Channel:

 

A.                                  Start Up Fees

 

Adviser shall pay to NFS a one-time start up fee (“Start Up Fee”) for Fidelity’s initial set up and preparation to support a new group or family of Funds as set forth in Exhibit C, which shall be due and payable to NFS upon the execution of this Agreement and prior to the availability of any such Fund through the Channels.

 

B.                                  CUSIP Fee

 

The annual per CUSIP fee (“CUSIP Maintenance Fee”) set forth in Exhibit C is conditionally waived. Fidelity reserves the right to charge the fee if the total market value of Shareholder assets is less than $1.5 million as of December 31st of the preceding year.

 

Part II- Brokerage Channel Fees

 

A.                                  Asset-Based Fee for No Transaction Fee Fund Program

 

For the services provided to the Brokerage Channels by NFS and PBS hereunder in connection with those funds indicated on Exhibit C as participating in the No Transaction Fee (“NTF”) Fund program, Adviser shall pay to NFS the fee set forth in Exhibit C, which is a percent per annum of the daily market value of the total number of shares of such Fund held in accounts at NFS (determined by multiplying the number of such shares times the publicly-reported net asset value of each share), excluding the value of (i) shares that were purchased by customers as a Transaction Fee Fund(ii) shares first placed or purchased in a Fidelity brokerage account after the termination of the Agreement (the “NTF Asset-Based Fee”). In the event the Fund is subsequently changed to a Transaction Fee Fund or, through merger or acquisition by any Fund assets of a third-party mutual fund become subject to this Agreement, Fund shares that were purchased as No Transaction Fee will remain or become subject to the NTF Asset-Based Fee.

 

B.                 Administrative Fee for Transaction Fee Fund Positions

 

Adviser shall pay to NFS an administrative fee with respect to PBS and Correspondent positions as set forth in Exhibit C, which is a percentage per annum of the daily market value of the total number of shares of such Fund positions held in accounts at NFS (determined by multiplying the number of such shares times the publicly-reported net asset value of each share) excluding the value of shares that were purchased by customers as a NTF Fund (“Administrative Fee”). In the event the Fund is subsequently changed to a No Transaction Fee Fund or, through merger or acquisition by any Fund assets of a third-party mutual fund become subject to this Agreement, Fund shares that were purchased as Transaction Fee will remain or become subject to the Administrative Fee.

 

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C.                              Invoices

 

The NTF Asset-Based Fee and Administrative Fee shall be calculated daily and paid monthly in arrears. Subsequent to each month-end, NFS shall send to Adviser one or more statements of the market value of shares of the Fund for which the fees are calculated for the preceding month, together with a statement of the amount of the NTF Asset-Based Fee and/or Administrative Fee.

 

Part III - FIIOC Channel Fee

 

For the services provided to the FIIOC Channel by FIIOC hereunder, Adviser shall pay, or shall cause Distributor (to the extent authorized by a 12b-1 plan) to pay to FIIOC the amounts set forth on Exhibit C equal to a percentage per annum of the average aggregate amount invested in the Funds through the FIIOC Plans each calendar month (the “FIIOC Channel Asset-Based Fee”). The average aggregate amount invested through the FIIOC Plans over a calendar month shall be computed by totaling the FIIOC Plans’ daily investments during the month and dividing such total by the actual number of calendar days in the month.  Daily investments shall include amounts invested by the FIIOC Plans either directly or indirectly in the Funds including, but not limited to, direct investments in the Funds and investments in the Funds by “strategy funds” and other customized FIIOC Plan investment options contemplated by Exhibit G.

 

FIIOC shall calculate the FIIOC Channel Asset-Based Fee at the end of each calendar month and shall forward an invoice to Adviser, along with such other supporting data as may be reasonably requested by Adviser.

 

Part IV- General

 

This Part IV applies to both the Brokerage Channels and FIIOC Channel:

 

The parties agree that the Adviser shall be responsible for payment in full of all the Fees set forth in this Agreement (and related Exhibits and attachments).

 

Fund/Agent’s acceptance of a trade in a Fund constitutes Fund/Agent’s agreement to be bound by the terms of this Exhibit A with respect to said Fund.

 

Upon prior written notice to Adviser, Fidelity may change, amend, or waive any fee or the method of payment thereof under this Agreement and Fidelity may issue to Adviser a new or replacement Exhibit A or other writing documenting such change, amendment, or waiver.  Such change, amendment, or waiver shall be effective on the date stated in such notice.  The acceptance by Adviser of any order after the date stated in such notice shall represent Adviser’s agreement to pay such fees to Fidelity.

 

All fees are due thirty (30) days upon receipt of invoice. In the calculation of fees, Fidelity’s records shall govern unless Adviser can, within 12 months of receipt of invoice, demonstrate that the number of shares or Fund price(s) used in such calculation is inaccurate. Payment shall be by wire transfer or other form acceptable to Fidelity and shall be separate from payments related to redemption proceeds and distributions. If Adviser fails to remit such fees within 30 days, Adviser will be subject to a monthly 1.0% (12% per annum) late charge on aggregate outstanding balances.

 

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UNIVERSAL FEES

 

Exhibit C

 

Fee Type		Fee Frequency		Invoice Frequency		Fees
New Fund Family Start Up Fee		One-time		One-time		$25,000 per fund family (already paid)
CUSIP Maintenance Fee		Annual		Annual		$2,000 per year (WAIVED)*
BROKERAGE CHANNEL FEES
NTF Asset-Based Fee		Annual		Monthly		0.40%
						Per position fee (if fully-disclosed}		Omnibus Funds
Administrative Fee (all other Transaction Fee positions)		Annual		Monthly		0.08	%	0.10	%

 

Fund Information								Brokerage Channel Participation																FIIOC Channel Participation
								No Transaction Fee (NTF) Fund Program																		FllOC Channel
										NTF Channel Availability**								Transaction Fee Funds						FllOC		Redemption Fee Coding
Fund Name		Ticker		Cusip		Share CL		NTF Rate		Personal Investing		Institutional Wealth Services		Correspondents (Commission- Based)		Correspondents (Fee- Based)		Networked Fee		Omnibus		RFN		Channel Service Payment		Minimum Hold Period		Redemption Fee Rate		Notes
TRIBUTARY LARGE CAP GROWTH INSTL		FOLCX		320269723		Inst		0.40	%	x		x		x		x		0.08	%	0.10	%	0.00	%	0.40	%	N/A		N/A
TRIBUTARY SMALL COFD INSTL CL		FOSCX		320269764		Inst		0.40	%	x		x		x		x		0.08	%	0.10	%	0.00	%	0.40	%	N/A		N/A
TRIBUTARY GROWTH OPPT INSTL		FOGRX		320269772		Inst		0.40	%	x		x		x		x		0.08	%	0.10	%	0.00	%	0.40	%	N/A		N/A
TRIBUTARY INCOME INSTL CL		FOINX		320269798		Inst		0.40	%	x		x		x		x		0.08	%	0.10	%	0.00	%	0.40	%	N/A		N/A
TRIBUTARY BLANCED FD INSTL		FOBAX		320269814		Inst		0.40	%	x		x		x		x		0.08	%	0.10	%	0.00	%	0.40	%	N/A		N/A
TRIBUTARY SHORT/ INTERM BD INSTL CL		FOSIX		320269830		Inst		0.40	%	x		x		x		x		0.08	%	0.10	%	0.00	%	0.40	%	N/A		N/A
TRIBUTARY SMALL COFD INSTL PLUS CL		FOSBX		▇▇▇▇▇▇▇▇▇		Inst Plus		N/A										0.08	%	0.10	%	0.15	%	0.15	%	N/A		N/A
TRIBUTARY GROWTH OPPT INSTL PLUS		FOGPX		▇▇▇▇▇▇▇▇▇		Inst Plus		N/A										0.08	%	0.10	%	0.15	%	0.15	%	N/A		N/A
TRIBUTARY LARGE CAP GROWTH INSTL PLUS		FOLPX		▇▇▇▇▇▇▇▇▇		Inst Plus		N/A										0.08	%	0.10	%	0.15	%	0.15	%	N/A		N/A
TRIBUTARY BLANCED FD INSTL PLUS		FOBPX		▇▇▇▇▇▇▇▇▇		Inst Plus		N/A										0.08	%	0.10	%	0.15	%	0.15	%	N/A		N/A
TRIBUTARY INCOME FUND		FOIPX		▇▇▇▇▇▇▇▇▇		Inst Pl us		N/A										0.08	%	0.10	%	0.15	%	0.15	%	N/A		N/A
TRIBUTARY SHORT-INTERMEDIATE FUND		POSPX		▇▇▇▇▇▇▇▇▇		I nst Pl us		N/A										0.08	%	0.10	%	0.15	%	0.15	%	N/A		N/A

 

*The waiver of the annual fee is conditional. Fidelity reserves the right to charge the fee if the total market value of Shareholder assets is less than $1.5 million as of December 31st of each calendar year.

**For purposes of a Fund’s NTF availability to the Brokerage Channels, the parties acknowledge and agree that (i) the term “Personal Investing’“ is intended to include all accounts that are associated with FBS’s retail business; (ii) the term “Institutional Wealth Services’“ is intended to include all FBS accounts of investment advisers, third party administrators. banks, trust departments and family office clients; (iii) the term “Commission-Based Correspondents’“ is intended to include all traditional commission-based Correspondent