Adviser’s Representations, Warranties and Additional Covenants. Adviser represents, warrants and covenants to Sub-Adviser as follows: (i) Adviser is a business entity of the type indicated in the first paragraph of this Agreement, and is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation/organization. The Fund is a duly constituted series of the Company, which is a business entity of the type indicated in the first recital paragraph to this Agreement, and is duly organized, validly existing, and in good standing under the laws of the Company’s jurisdiction of incorporation/organization; (ii) Adviser has the right, power and authority under its governing documents (i.e., declaration of trust, articles of incorporation, partnership agreement or similar governing document, and bylaws) and the Advisory Agreement to execute and deliver, and perform its obligations under, this Agreement. Adviser has been duly appointed by the Board and the shareholders of each Fund to provide investment advisory services to each Fund as contemplated by the Advisory Agreement; (iii) This Agreement and the Advisory Agreement each constitutes the legal, valid, and binding obligation of Adviser, enforceable against Adviser in accordance with their respective terms, except to the extent such enforceability is limited by applicable bankruptcy, fraudulent conveyance and similar laws affecting creditor or counterparty rights generally, general principles of equity or public policy; (iv) Neither the execution and delivery of this Agreement or the Advisory Agreement by Adviser nor the performance of any of Adviser’s services or other obligations under this Agreement or the Advisory Agreement will give any person or entity the right to prevent, delay, or otherwise interfere with the performance of such services or other obligations pursuant to: (A) any provision of Adviser’s governing documents (i.e., declaration of trust, articles of incorporation, partnership agreement or similar governing document, and bylaws) or the Governing Documents of the Fund(s) and the Company; (B) any resolution adopted by the governing body (i.e., board of directors or trustees or general partner) or shareholders of Adviser or the Board or shareholders of the Fund(s) or the Company; (C) any law, rule, regulation or administrative or court order to which Adviser or its assets, or the Fund(s) or the Company, or the assets of the Fund(s) or the Company, may be subject or bound; or (D) any material contract to which Adviser, a Fund or the Company is a party or by which Adviser or its assets, or the Fund(s) or the Company, or the assets of the Fund(s) or the Company, may be subject or bound; (v) Except for the approval(s) of the Board and, as necessary, of each Fund’s shareholders as required by Section 15 of the 1940 Act (which approval(s) have previously been obtained and remain in full force and effect), Adviser is not required to obtain any consent from any person or entity in connection with the execution and delivery of the Advisory Agreement or this Agreement, the performance of any of Adviser’s services or other obligations under the Advisory Agreement or this Agreement or the appointment of Adviser as investment adviser to the Fund(s) as contemplated in the Advisory Agreement or of Sub-Adviser as sub-adviser to the Fund(s) as contemplated in this Agreement; (vi) Adviser is registered with the SEC as an investment adviser under the Advisers Act and is registered or licensed as an investment adviser under the laws, rules or regulations of all jurisdictions in which its activities require it to be so registered or licensed, except where the failure to be so licensed would not have a material adverse effect on its business or the performance of its services and other obligations under the Advisory Agreement and this Agreement. The Company is a registered investment company under the 1940 Act, and the Shares of the Fund(s) and the Company are duly registered under the 1933 Act and under the laws, rules or regulations of all jurisdictions in which such Shares are offered that require such registration; (vii) Each of Adviser, the Fund(s) and the Company is in compliance, in all material respects, with the laws, rules or regulations applicable to Adviser, the Fund(s) or the Company. Without limiting the foregoing, each of Adviser and the Board (with respect to the Fund(s) and the Company) has adopted written policies and procedures reasonably designed to prevent violations of the federal securities laws as required under Rule 38a-1 promulgated under the 1940 Act or Rule 206(4)-7 under the Advisers Act, as applicable. Without limiting the foregoing, each of Adviser and the Board (with respect to the Fund(s) and the Company) has adopted a written code of ethics as required under Rule 17j-1 promulgated under the 1940 Act or Rule 204A-1 under the Advisers Act, as applicable; (viii) Adviser has received and reviewed a copy of Sub-Adviser’s Form ADV, Part II, copies or summaries of Sub-Adviser’s policies and procedures applicable to Sub-Adviser’s performance of its obligations and services under this Agreement, and any other information regarding Sub-Adviser or its services that Adviser or the Board has determined necessary or appropriate in connection with appointing Sub-Adviser as a sub-adviser for the Fund(s) as contemplated in this Agreement. The Board has adopted such policies and procedures of Sub-Adviser as policies and procedures of the Company and the Fund(s). Adviser has provided to Sub-Adviser all information and documents required under Section 3 of this Agreement; (ix) Adviser has instructed (or caused the Company or each Fund to instruct) the custodian(s) to the Fund(s) to: (A) accept and carry out instructions as may be directed from the authorized persons of Sub-Adviser provided in writing by Sub-Adviser to such custodian(s) from time to time (which instructions may be orally given if confirmed in writing or given on a recorded line); and (B) provide Sub-Adviser with all operational information necessary for the Sub-Adviser to trade on behalf of the Fund(s); (x) Unless prohibited by applicable law, rule or regulation, Adviser will promptly provide Sub-Adviser with notice of: (A) the occurrence of any event which reasonably likely could disqualify Adviser from serving as an investment adviser of a registered investment company under Section 9(a) of the 1940 Act or otherwise; (B) an event that would constitute a change in control (as interpreted under the 0000 Xxx) of Adviser; and (C) of any pending or overtly threatened audit, investigation, complaint, examination or other regulatory inquiry (other than routine or sweep regulatory examinations or inspections) relating to the Fund(s) conducted by any state or federal governmental regulatory authority; and (xi) Unless prohibited by applicable law, rule or regulation, Adviser will provide Sub-Adviser with prompt written notice if any of the representations, warranties or covenants in this Section 7(b) shall be breached, or become inaccurate, in any material respect.
Appears in 2 contracts
Samples: Subadvisory Agreement, Subadvisory Agreement (Azzad Funds)
Adviser’s Representations, Warranties and Additional Covenants. Adviser represents, warrants and covenants to Sub-Adviser that, as followsof the date hereof:
(i) Adviser is a business entity of the type indicated in the first paragraph of this Agreement, and is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation/organization. The Fund is a duly constituted series of the CompanyTrust, which is a business entity of the type indicated in the first recital paragraph to this Agreement, and is duly organized, validly existing, and in good standing under the laws of the CompanyTrust’s jurisdiction of incorporation/organization;
(ii) Adviser has the right, power and authority under its governing documents (i.e., declaration of trust, articles of incorporation, partnership agreement or similar governing document, and bylaws) and the Advisory Agreement to execute and deliver, and perform its obligations under, this Agreement. Adviser has been duly appointed by the Board and the shareholders of each the Fund to provide investment advisory services to each the Fund as contemplated by the Advisory Agreement;
(iii) This Sub-Advisory Agreement and the Advisory Agreement each constitutes the legal, valid, and binding obligation of Adviser, enforceable against Adviser in accordance with their respective terms, except to the extent such enforceability is limited by applicable bankruptcy, fraudulent conveyance and similar laws affecting creditor or counterparty rights generally, general principles of equity or public policy;
(iv) Neither the execution and delivery of this Agreement or the Advisory Agreement by Adviser nor the performance of any of Adviser’s services or other obligations under this Agreement or the Advisory Agreement will give any person or entity the right to prevent, delay, or otherwise interfere with the performance of such services or other obligations pursuant to: (A) any provision of Adviser’s governing documents (i.e., declaration of trust, articles of incorporation, partnership agreement or similar governing document, and bylaws) or the Governing Documents of the Fund(s) Fund and the CompanyTrust; (B) any resolution adopted by the governing body (i.e., board of directors or trustees or general partner) or shareholders of Adviser or the Board or shareholders of the Fund(s) Fund or the CompanyTrust; (C) any law, rule, regulation or administrative or court order to which Adviser or its assets, or the Fund(s) Fund or the CompanyTrust, or the assets of the Fund(s) Fund or the CompanyTrust, may be subject or bound; or (D) any material contract to which Adviser, a Fund or the Company Trust is a party or by which Adviser or its assets, or the Fund(s) Fund or the CompanyTrust, or the assets of the Fund(s) Fund or the CompanyTrust, may be subject or bound;
(v) Except for the approval(s) of the Board and, as necessary, of each the Fund’s shareholders as required by Section 15 of the 1940 Act (which approval(s) have previously been obtained and remain in full force and effect)Act, Adviser is not required to obtain any consent from any person or entity in connection with the execution and delivery of the Advisory Agreement or this Agreement, the performance of any of Adviser’s services or other obligations under the Advisory Agreement or this Agreement or the appointment of Adviser as investment adviser to the Fund(s) Fund as contemplated in the Advisory Agreement or of Sub-Adviser as sub-adviser to the Fund(s) Fund as contemplated in this Agreement;
(vi) Adviser is registered with the SEC as an investment adviser under the Advisers Act and is registered or licensed as an investment adviser under the laws, rules or regulations of all jurisdictions in which its activities require it to be so registered or licensed, except where the failure to be so licensed would not have a material adverse effect on its business or the performance of its services and other obligations under the Advisory Agreement and this Agreement. The Company Trust is a registered investment company under the 1940 Act, and the Shares of the Fund(s) Fund and the Company Trust are duly registered under the 1933 Act and under the laws, rules or regulations of all jurisdictions in which such Shares are offered that require such registration;
(vii) Each of Adviser, the Fund(s) Fund and the Company Trust is in compliance, in all material respects, with the laws, rules or regulations applicable to Adviser, the Fund(s) Fund or the CompanyTrust. Without limiting the foregoing, each of Adviser and the Board (with respect to the Fund(s) Fund and the CompanyTrust) has adopted written policies and procedures reasonably designed to prevent violations of the federal securities laws as required under Rule 38a-1 promulgated under the 1940 Act or Rule 206(4)-7 under the Advisers Act, as applicable. Without limiting the foregoing, each of Adviser and the Board (with respect to the Fund(s) Fund and the CompanyTrust) has adopted a written code of ethics as required under Rule 17j-1 promulgated under the 1940 Act or Rule 204A-1 under the Advisers Act, as applicable;
(viii) Adviser has received and reviewed a copy of Sub-Adviser’s Form ADV, Part II, copies or summaries of Sub-Adviser’s policies and procedures applicable to Sub-Adviser’s performance of its obligations and services under this Agreement, and any other information regarding Sub-Adviser or its services that Adviser or the Board has determined necessary or appropriate in connection with appointing Sub-Adviser as a sub-adviser for the Fund(s) Fund as contemplated in this Agreement. The Board has adopted such policies and procedures of Sub-Adviser as policies and procedures of the Company Trust and the Fund(s)Fund. Adviser has provided to Sub-Adviser all information and documents required under Section 3 of this Agreement;
(ix) Adviser has instructed (or caused the Company Trust or each the Fund to instruct) the custodian(s) to the Fund(s) Fund to: (A) accept and carry out instructions as may be directed from the authorized persons of Sub-Adviser provided in writing by Sub-Adviser to such custodian(s) from time to time (which instructions may be orally given if confirmed in writing or given on a recorded line); and (B) provide Sub-Adviser with all operational information necessary for the Sub-Adviser to trade on behalf of the Fund(s)Fund;
(x) Unless prohibited by applicable law, rule or regulation, Adviser will promptly provide Sub-Adviser with notice of: (A) the occurrence of any event which reasonably likely could disqualify Adviser from serving as an investment adviser of a registered investment company under Section 9(a) of the 1940 Act or otherwise; (B) an event that would constitute a change in control (as interpreted under the 0000 1000 Xxx) of Adviser; and (C) of any pending or overtly threatened audit, investigation, complaint, examination or other regulatory inquiry (other than routine or sweep regulatory examinations or inspections) relating to the Fund(s) Fund conducted by any state or federal governmental regulatory authority; andauthority provided that Adviser will not be deemed in breach of this disclosure obligation to the extent that counsel has informed Sub-Adviser that such disclosure would render Adviser in violation of any applicable law or regulation and provided further, that the Adviser will provide such disclosure to the Sub-Adviser promptly upon the suspension of such impediment;
(xi) Unless prohibited The Trust (i) has established an Anti-Money Laundering Program (“AML Program”) that is designed to comply with the USA PATRIOT Act of 2001 and other applicable U.S. laws and regulations relating to the prevention of money laundering and terrorist financing, and (ii) is subject to the regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) and has policies and procedures designed to comply with the prohibitions and restrictions mandated by OFAC. The Trust, Fund and Adviser recognize and agree that the Sub-Adviser does not have responsibilities regarding the Trust’s AML Program and the Trust’s OFAC policies and procedures and for clearing the shareholders of the Fund through the AML Program and the Trust’s OFAC policies and procedures;
(xii) The Adviser understands, acknowledges, represents and agrees (a) that the acceptance of this Agreement together with the remittance of the appropriate documentation will not beach any applicable law, rule money laundering rules or regulation, regulations and (b) to promptly provide to the Sub-Adviser documentation verifying its identity as required in subsection 7(b)(xii) below. Adviser will provide additional information or take such other actions as may be necessary or advisable for Sub-Adviser to comply with prompt written notice if any requirements related to money laundering rules or regulations, related legal process or appropriate requests (whether formal or informal) or otherwise. Adviser hereby consents to disclosure by the Sub-Adviser and its agents to relevant third parties of information pertaining to Adviser in respect of such rules or regulations or information requests related thereto. Further, Adviser represents and warrants that no party which either (x) has had any of its assets blocked under the representationsOFAC maintained list of Specially Designated Nationals Blocked Persons, warranties the U.S. Presidential Executive Order 13224, Financial Action Task Force on Money Laundering’s list of non-cooperative jurisdictions, the U.S. Department of the Treasury’s Financial Crimes Enforcement Network Adviser list or covenants in this Section 7(b) shall be breachedany other sanction, regulation or law promulgated by ay U.S. governmental entity or intergovernmental group organization of which the U.S. is a member (collectively, the “U.S. Sanction Laws”), or become inaccurate(y) has been identified by the U.S. Government as a person whose assets are blocked under the U.S. Sanction Laws, has any beneficial interest in any material respect.the Adviser; and
Appears in 1 contract
Adviser’s Representations, Warranties and Additional Covenants. Adviser represents, warrants and covenants to Sub-Adviser as follows:
(i) Adviser is a business entity of the type indicated in the first paragraph of this Agreement, and is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation/organization. The Fund is a duly constituted series of the Company, which is a business entity of the type indicated in the first recital paragraph to this Agreement, and is duly organized, validly existing, and in good standing under the laws of the Company’s jurisdiction of incorporation/organization;
(ii) Adviser has the right, power and authority under its governing documents (i.e., declaration of trust, articles of incorporation, partnership agreement or similar governing document, and bylaws) and the Advisory Agreement to execute and deliver, and perform its obligations under, this Agreement. Adviser has been duly appointed by the Board and the shareholders of each Fund to provide investment advisory services to each Fund as contemplated by the Advisory Agreement;
(iii) This Agreement and the Advisory Agreement each constitutes the legal, valid, and binding obligation of Adviser, enforceable against Adviser in accordance with their respective terms, except to the extent such enforceability is limited by applicable bankruptcy, fraudulent conveyance and similar laws affecting creditor or counterparty rights generally, general principles of equity or public policy;
(iv) Neither the execution and delivery of this Agreement or the Advisory Agreement by Adviser nor the performance of any of Adviser’s services or other obligations under this Agreement or the Advisory Agreement will give any person or entity the right to prevent, delay, or otherwise interfere with the performance of such services or other obligations pursuant to: (A) any provision of Adviser’s governing documents (i.e., declaration of trust, articles of incorporation, partnership agreement or similar governing document, and bylaws) or the Governing Documents of the Fund(s) and the Company; (B) any resolution adopted by the governing body (i.e., board of directors or trustees or general partner) or shareholders of Adviser or the Board or shareholders of the Fund(s) or the Company; (C) any law, rule, regulation or administrative or court order to which Adviser or its assets, or the Fund(s) or the Company, or the assets of the Fund(s) or the Company, may be subject or bound; or (D) any material contract to which Adviser, a Fund or the Company is a party or by which Adviser or its assets, or the Fund(s) or the Company, or the assets of the Fund(s) or the Company, may be subject or bound;
(v) Except for the approval(s) of the Board and, as necessary, of each Fund’s shareholders as required by Section 15 of the 1940 Act (which approval(s) have previously been obtained and remain in full force and effect), Adviser is not required to obtain any consent from any person or entity in connection with the execution and delivery of the Advisory Agreement or this Agreement, the performance of any of Adviser’s services or other obligations under the Advisory Agreement or this Agreement or the appointment of Adviser as investment adviser to the Fund(s) as contemplated in the Advisory Agreement or of Sub-Adviser as sub-adviser to the Fund(s) as contemplated in this Agreement;
(vi) Adviser is registered with the SEC as an investment adviser under the Advisers Act and is registered or licensed as an investment adviser under the laws, rules or regulations of all jurisdictions in which its activities require it to be so registered or licensed, except where the failure to be so licensed would not have a material adverse effect on its business or the performance of its services and other obligations under the Advisory Agreement and this Agreement. The Company is a registered investment company under the 1940 Act, and the Shares of the Fund(s) and the Company are duly registered under the 1933 Act and under the laws, rules or regulations of all jurisdictions in which such Shares are offered that require such registration;
(vii) Each of Adviser, the Fund(s) and the Company is in compliance, in all material respects, with the laws, rules or regulations applicable to Adviser, the Fund(s) or the Company. Without limiting the foregoing, each of Adviser and the Board (with respect to the Fund(s) and the Company) has adopted written policies and procedures reasonably designed to prevent violations of the federal securities laws as required under Rule 38a-1 promulgated under the 1940 Act or Rule 206(4)-7 under the Advisers Act, as applicable. Without limiting the foregoing, each of Adviser and the Board (with respect to the Fund(s) and the Company) has adopted a written code of ethics as required under Rule 17j-1 promulgated under the 1940 Act or Rule 204A-1 under the Advisers Act, as applicable;
(viii) Adviser has received and reviewed a copy of Sub-Adviser’s Form ADV, Part II, copies or summaries of Sub-Adviser’s policies and procedures applicable to Sub-Adviser’s performance of its obligations and services under this Agreement, and any other information regarding Sub-Adviser or its services that Adviser or the Board has determined necessary or appropriate in connection with appointing Sub-Adviser as a sub-adviser for the Fund(s) as contemplated in this Agreement. The Board has adopted such policies and procedures of Sub-Adviser as policies and procedures of the Company and the Fund(s). Adviser has provided to Sub-Adviser all information and documents required under Section 3 of this Agreement;
(ix) Adviser has instructed (or caused the Company or each Fund to instruct) the custodian(s) to the Fund(s) to: (A) accept and carry out instructions as may be directed from the authorized persons of Sub-Adviser provided in writing by Sub-Adviser to such custodian(s) from time to time (which instructions may be orally given if confirmed in writing or given on a recorded line); and (B) provide Sub-Adviser with all operational information necessary for the Sub-Adviser to trade on behalf of the Fund(s);
(x) Unless prohibited by applicable law, rule or regulation, Adviser will promptly provide Sub-Adviser with notice of: (A) the occurrence of any event which reasonably likely could disqualify Adviser from serving as an investment adviser of a registered investment company under Section 9(a) of the 1940 Act or otherwise; (B) an event that would constitute a change in control (as interpreted under the 0000 Xxx1940 Act) of Adviser; and (C) of any pending or overtly threatened audit, investigation, complaint, examination or other regulatory inquiry (other than routine or sweep regulatory examinations or inspections) relating to the Fund(s) conducted by any state or federal governmental regulatory authority; and
(xi) Unless prohibited by applicable law, rule or regulation, Adviser will provide Sub-Adviser with prompt written notice if any of the representations, warranties or covenants in this Section 7(b) shall be breached, or become inaccurate, in any material respect.
Appears in 1 contract
Samples: Subadvisory Agreement (Azzad Funds)
Adviser’s Representations, Warranties and Additional Covenants. Adviser represents, warrants and covenants to Sub-Adviser that, as followsof the date hereof:
(i) Adviser is a business entity of the type indicated in the first paragraph of this Agreement, and is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation/organization. The Fund is a duly constituted series of the CompanyTrust, which is a business entity of the type indicated in the first recital paragraph to this Agreement, and is duly organized, validly existing, and in good standing under the laws of the CompanyTrust’s jurisdiction of incorporation/organization;
(ii) Adviser has the right, power and authority under its governing documents (i.e., declaration of trust, articles of incorporation, partnership agreement or similar governing document, and bylaws) and the Advisory Agreement to execute and deliver, and perform its obligations under, this Agreement. Adviser has been duly appointed by the Board and the shareholders of each the Fund to provide investment advisory services to each the Fund as contemplated by the Advisory Agreement;
(iii) This Agreement and the Advisory Agreement each constitutes the legal, valid, and binding obligation of Adviser, enforceable against Adviser in accordance with their respective terms, except to the extent such enforceability is limited by applicable bankruptcy, fraudulent conveyance and similar laws affecting creditor or counterparty rights generally, general principles of equity or public policy;
(iv) Neither the execution and delivery of this Agreement or the Advisory Agreement by Adviser nor the performance of any of Adviser’s services or other obligations under this Agreement or the Advisory Agreement will give any person or entity the right to prevent, delay, or otherwise interfere with the performance of such services or other obligations pursuant to: (A) any provision of Adviser’s governing documents (i.e., declaration of trust, articles of incorporation, partnership agreement or similar governing document, and bylaws) or the Governing Documents of the Fund(s) Fund and the CompanyTrust; (B) any resolution adopted by the governing body (i.e., board of directors or trustees or general partner) or shareholders of Adviser or the Board or shareholders of the Fund(s) Fund or the CompanyTrust; (C) any law, rule, regulation or administrative or court order to which Adviser or its assets, or the Fund(s) Fund or the CompanyTrust, or the assets of the Fund(s) Fund or the CompanyTrust, may be subject or bound; or (D) any material contract to which Adviser, a the Fund or the Company Trust is a party or by which Adviser or its assets, or the Fund(s) Fund or the CompanyTrust, or the assets of the Fund(s) Fund or the CompanyTrust, may be subject or bound;
(v) Except for the approval(s) of the Board and, as necessary, of each the Fund’s shareholders as required by Section 15 of the 1940 Act (which approval(s) have previously been obtained and remain in full force and effect)Act, Adviser is not required to obtain any consent from any person or entity in connection with the execution and delivery of the Advisory Agreement or this Agreement, the performance of any of Adviser’s services or other obligations under the Advisory Agreement or this Agreement or the appointment of Adviser as investment adviser to the Fund(s) Fund as contemplated in the Advisory Agreement or of Sub-Adviser as sub-adviser to the Fund(s) Fund as contemplated in this Agreement;
(vi) Adviser is registered with the SEC as an investment adviser under the Advisers Act and is registered or licensed as an investment adviser under the laws, rules or regulations of all jurisdictions in which its activities require it to be so registered or licensed, except where the failure to be so licensed would not have a material adverse effect on its business or the performance of its services and other obligations under the Advisory Agreement and this Agreement. The Company Trust is a registered investment company under the 1940 Act, and the Shares of the Fund(s) Fund and the Company Trust are duly registered under the 1933 Act and under the laws, rules or regulations of all jurisdictions in which such Shares are offered that require such registration;
(vii) Each of Adviser, the Fund(s) Fund and the Company Trust is in compliance, in all material respects, with the laws, rules or regulations applicable to Adviser, the Fund(s) Fund or the CompanyTrust. Without limiting the foregoing, each of Adviser and the Board (with respect to the Fund(s) Fund and the CompanyTrust) has adopted written policies and procedures reasonably designed to prevent violations of the federal securities laws as required under Rule 38a-1 promulgated under the 1940 Act or Rule 206(4)-7 under the Advisers Act, as applicable. Without limiting the foregoing, each of Adviser and the Board (with respect to the Fund(s) Fund and the CompanyTrust) has adopted a written code of ethics as required under Rule 17j-1 promulgated under the 1940 Act or Rule 204A-1 under the Advisers Act, as applicable;
(viii) Adviser has received and reviewed a copy of Sub-Adviser’s Form ADV, Part II, copies or summaries of Sub-Adviser’s policies and procedures applicable to Sub-Adviser’s performance of its obligations and services under this Agreement, and any other information regarding Sub-Adviser or its services that Adviser or the Board has determined necessary or appropriate in connection with appointing Sub-Adviser as a sub-adviser for the Fund(s) Fund as contemplated in this Agreement. The Board has adopted such policies and procedures of Sub-Adviser as policies and procedures of the Company Trust and the Fund(s)Fund. Adviser has provided to Sub-Adviser all information and documents required under Section 3 of this Agreement;
(ix) Adviser has instructed (or caused the Company Trust or each the Fund to instruct) the custodian(s) to the Fund(s) Fund to: (A) accept and carry out instructions as may be directed from the authorized persons of Sub-Adviser provided in writing by Sub-Adviser to such custodian(s) from time to time (which instructions may be orally given if confirmed in writing or given on a recorded line); and (B) provide Sub-Adviser with all operational information necessary for the Sub-Adviser to trade on behalf of the Fund(s);Fund; and
(x) Unless prohibited by applicable law, rule or regulation, Adviser will promptly provide Sub-Adviser with notice of: (A) the occurrence of any event which reasonably likely could disqualify Adviser from serving as an investment adviser of a registered investment company under Section 9(a) of the 1940 Act or otherwise; (B) an event that would constitute a change in control (as interpreted under the 0000 1000 Xxx) of Adviser; and (C) of any pending or overtly threatened audit, investigation, complaint, examination or other regulatory inquiry (other than routine or sweep regulatory examinations or inspections) relating to the Fund(s) Fund conducted by any state or federal governmental regulatory authority; and
(xi) Unless prohibited by , provided that Adviser will not be deemed in breach of this disclosure obligation to the extent that counsel has informed Adviser that such disclosure would render Adviser, or any affiliate of Adviser, in violation of any applicable law, rule law or regulation, and, provided further, that Adviser will provide such disclosure to Sub-Adviser with prompt written notice if any promptly upon the suspension of the representations, warranties or covenants in this Section 7(b) shall be breached, or become inaccurate, in any material respectsuch impediment.
Appears in 1 contract
Adviser’s Representations, Warranties and Additional Covenants. Adviser represents, warrants and covenants to Sub-Adviser as follows:
(i) Adviser is a business entity of the type indicated in the first paragraph of this Agreement, and is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation/organization. The Fund is a duly constituted series of the CompanyTrust, which is a business entity of the type indicated in the first recital paragraph to this Agreement, and is duly organized, validly existing, and in good standing under the laws of the CompanyTrust’s jurisdiction of incorporation/organization;
(ii) Adviser has the right, power and authority under its governing documents (i.e., declaration of trust, articles of incorporation, partnership agreement or similar governing document, incorporation and bylaws) and the Advisory Agreement to execute and deliver, and perform its obligations under, this Agreement. Adviser has been duly appointed by the Board and the shareholders of each Fund to provide investment advisory services to each Fund as contemplated by the Advisory Agreement;
(iii) This Agreement and the Advisory Agreement each constitutes the legal, valid, and binding obligation of Adviser, enforceable against Adviser in accordance with their respective terms, except to the extent such enforceability is limited by applicable bankruptcy, fraudulent conveyance and similar laws affecting creditor or counterparty rights generally, general principles of equity or public policy;
(iv) Neither the execution and delivery of this Agreement or the Advisory Agreement by Adviser nor the performance of any of Adviser’s services or other obligations under this Agreement or the Advisory Agreement will give any person or entity the right to prevent, delay, or otherwise interfere with the performance of such services or other obligations pursuant to: (A) any provision of Adviser’s governing documents (i.e., declaration of trust, articles of incorporation, partnership agreement or similar governing document, incorporation and bylaws) or the Governing Documents of the Fund(s) and the CompanyTrust; (B) any resolution adopted by the governing body (i.e., board of directors or trustees or general partnertrustees) or shareholders of Adviser or the Board or shareholders of the Fund(s) or the CompanyTrust; (C) any law, rule, regulation or administrative or court order to which Adviser or its assets, or the Fund(s) or the CompanyTrust, or the assets of the Fund(s) or the CompanyTrust, may be subject or bound; or (D) any material contract to which Adviser, a Fund or the Company Trust is a party or by which Adviser or its assets, or the Fund(s) or the CompanyTrust, or the assets of the Fund(s) or the CompanyTrust, may be subject or bound;
(v) Except for the approval(s) of the Board and, as necessary, of each Fund’s shareholders as required by Section 15 of the 1940 Act (which approval(s) have previously been obtained and remain in full force and effect), Adviser is not required to obtain any consent from any person or entity in connection with the execution and delivery of the Advisory Agreement or this Agreement, the performance of any of Adviser’s services or other obligations under the Advisory Agreement or this Agreement or the appointment of Adviser as investment adviser to the Fund(s) as contemplated in the Advisory Agreement or of Sub-Adviser as sub-adviser to the Fund(s) as contemplated in this Agreement;
(vi) Adviser is registered with the SEC as an investment adviser under the Advisers Act and is registered or licensed as an investment adviser under the laws, rules or regulations of all jurisdictions in which its activities require it to be so registered or licensed, except where the failure to be so licensed would not have a material adverse effect on its business or the performance of its services and other obligations under the Advisory Agreement and this Agreement. The Company Trust is a registered investment company under the 1940 Act, and the Shares of the Fund(s) and the Company Trust are duly registered under the 1933 Act and under the laws, rules or regulations of all jurisdictions in which such Shares are offered that require such registration;
(vii) Each of Adviser, the Fund(s) and the Company Trust is in compliance, in all material respects, with the laws, rules or regulations applicable to Adviser, the Fund(s) or the CompanyTrust. Without limiting the foregoing, each of Adviser and the Board (with respect to the Fund(s) and the CompanyTrust) has adopted written policies and procedures reasonably designed to prevent violations of the federal securities laws as required under Rule 38a-1 promulgated under the 1940 Act or Rule 206(4)-7 under the Advisers Act, as applicable. Without limiting the foregoing, each of Adviser and the Board (with respect to the Fund(s) and the CompanyTrust) has adopted a written code of ethics as required under Rule 17j-1 promulgated under the 1940 Act or Rule 204A-1 under the Advisers Act, as applicable;
(viii) Adviser has received and reviewed a copy of Sub-Adviser’s Form ADV, Part II, copies or summaries of Sub-Adviser’s policies and procedures applicable to Sub-Adviser’s performance of its obligations and services under this Agreement, and any other information regarding Sub-Adviser or its services that Adviser or the Board has determined necessary or appropriate in connection with appointing Sub-Adviser as a sub-adviser for the Fund(s) as contemplated in this Agreement. The Board has adopted such policies and procedures of Sub-Adviser as policies and procedures of the Company Trust and the Fund(s). Adviser has provided to Sub-Adviser all information and documents required under Section 3 of this Agreement;
(ix) Adviser has instructed (or caused the Company Trust or each Fund to instruct) the custodian(s) to the Fund(s) to: (A) accept and carry out instructions as may be directed from the authorized persons of Sub-Adviser provided in writing by Sub-Adviser to such custodian(s) from time to time (which instructions may be orally given if confirmed in writing or given on a recorded line); and (B) provide Sub-Adviser with all operational information necessary for the Sub-Adviser to trade on behalf of the Fund(s);
(x) Unless prohibited by applicable law, rule or regulation, Adviser will promptly provide Sub-Adviser with notice of: (A) the occurrence of any event which reasonably likely could disqualify Adviser from serving as an investment adviser of a registered investment company under Section 9(a) of the 1940 Act or otherwise; (B) an event that would constitute a change in control (as interpreted under the 0000 1000 Xxx) of Adviser; and (C) of any pending or overtly threatened audit, investigation, complaint, examination or other regulatory inquiry (other than routine or sweep regulatory examinations or inspections) relating to the Fund(s) conducted by any state or federal governmental regulatory authority; and
(xi) Unless prohibited by applicable law, rule or regulation, Adviser will provide Sub-Adviser with prompt written notice if any of the representations, warranties or covenants in this Section 7(b) shall be breached, or become inaccurate, in any material respect.
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Samples: Subadvisory Agreement (LocalShares Investment Trust)
Adviser’s Representations, Warranties and Additional Covenants. Adviser represents, warrants and covenants to Sub-Adviser that, as followsof the date hereof:
(i) Adviser is a business entity of the type indicated in the first paragraph of this Agreement, and is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation/organization. The Fund is a duly constituted series of the CompanyTrust, which is a business entity of the type indicated in the first recital paragraph to this Agreement, and is duly organized, validly existing, and in good standing under the laws of the CompanyTrust’s jurisdiction of incorporation/organization;
(ii) Adviser has the right, power and authority under its governing documents (i.e., declaration of trust, articles of incorporation, partnership agreement or similar governing document, and bylaws) and the Advisory Agreement to execute and deliver, and perform its obligations under, this Agreement. Adviser has been duly appointed by the Board and the shareholders of each the Fund to provide investment advisory services to each the Fund as contemplated by the Advisory Agreement;
(iii) This Sub-Advisory Agreement and the Advisory Agreement each constitutes the legal, valid, and binding obligation of Adviser, enforceable against Adviser in accordance with their respective terms, except to the extent such enforceability is limited by applicable bankruptcy, fraudulent conveyance and similar laws affecting creditor or counterparty rights generally, general principles of equity or public policy;
(iv) Neither the execution and delivery of this Agreement or the Advisory Agreement by Adviser nor the performance of any of Adviser’s services or other obligations under this Agreement or the Advisory Agreement will give any person or entity the right to prevent, delay, or otherwise interfere with the performance of such services or other obligations pursuant to: (A) any provision of Adviser’s governing documents (i.e., declaration of trust, articles of incorporation, partnership agreement or similar governing document, and bylaws) or the Governing Documents of the Fund(s) Fund and the CompanyTrust; (B) any resolution adopted by the governing body (i.e., board of directors or trustees or general partner) or shareholders of Adviser or the Board or shareholders of the Fund(s) Fund or the CompanyTrust; (C) any law, rule, regulation or administrative or court order to which Adviser or its assets, or the Fund(s) Fund or the CompanyTrust, or the assets of the Fund(s) Fund or the CompanyTrust, may be subject or bound; or (D) any material contract to which Adviser, a Fund or the Company Trust is a party or by which Adviser or its assets, or the Fund(s) Fund or the CompanyTrust, or the assets of the Fund(s) Fund or the CompanyTrust, may be subject or bound;
(v) Except for the approval(s) of the Board and, as necessary, of each the Fund’s shareholders as required by Section 15 of the 1940 Act (which approval(s) have previously been obtained and remain in full force and effect)Act, Adviser is not required to obtain any consent from any person or entity in connection with the execution and delivery of the Advisory Agreement or this Agreement, the performance of any of Adviser’s services or other obligations under the Advisory Agreement or this Agreement or the appointment of Adviser as investment adviser to the Fund(s) Fund as contemplated in the Advisory Agreement or of Sub-Adviser as sub-adviser to the Fund(s) Fund as contemplated in this Agreement;
(vi) Adviser is registered with the SEC as an investment adviser under the Advisers Act and is registered or licensed as an investment adviser under the laws, rules or regulations of all jurisdictions in which its activities require it to be so registered or licensed, except where the failure to be so licensed would not have a material adverse effect on its business or the performance of its services and other obligations under the Advisory Agreement and this Agreement. The Company Trust is a registered investment company under the 1940 Act, and the Shares of the Fund(s) Fund and the Company Trust are duly registered under the 1933 Act and under the laws, rules or regulations of all jurisdictions in which such Shares are offered that require such registration;
(vii) Each of Adviser, the Fund(s) Fund and the Company Trust is in compliance, in all material respects, with the laws, rules or regulations applicable to Adviser, the Fund(s) Fund or the CompanyTrust. Without limiting the foregoing, each of Adviser and the Board (with respect to the Fund(s) Fund and the CompanyTrust) has adopted written policies and procedures reasonably designed to prevent violations of the federal securities laws as required under Rule 38a-1 promulgated under the 1940 Act or Rule 206(4)-7 under the Advisers Act, as applicable. Without limiting the foregoing, each of Adviser and the Board (with respect to the Fund(s) Fund and the CompanyTrust) has adopted a written code of ethics as required under Rule 17j-1 promulgated under the 1940 Act or Rule 204A-1 under the Advisers Act, as applicable;
(viii) Adviser has received and reviewed a copy of Sub-Adviser’s Form ADV, Part II, copies or summaries of Sub-Adviser’s policies and procedures applicable to Sub-Adviser’s performance of its obligations and services under this Agreement, and any other information regarding Sub-Adviser or its services that Adviser or the Board has determined necessary or appropriate in connection with appointing Sub-Adviser as a sub-adviser for the Fund(s) Fund as contemplated in this Agreement. The Board has adopted such policies and procedures of Sub-Adviser as policies and procedures of the Company Trust and the Fund(s)Fund. Adviser has provided to Sub-Adviser all information and documents required under Section 3 of this Agreement;
(ix) Adviser has instructed (or caused the Company Trust or each the Fund to instruct) the custodian(s) to the Fund(s) Fund to: (A) accept and carry out instructions as may be directed from the authorized persons of Sub-Adviser provided in writing by Sub-Adviser to such custodian(s) from time to time (which instructions may be orally given if confirmed in writing or given on a recorded line); and (B) provide Sub-Adviser with all operational information necessary for the Sub-Adviser to trade on behalf of the Fund(s)Fund;
(x) Unless prohibited by applicable law, rule or regulation, Adviser will promptly provide Sub-Adviser with notice of: (A) the occurrence of any event which reasonably likely could disqualify Adviser from serving as an investment adviser of a registered investment company under Section 9(a) of the 1940 Act or otherwise; (B) an event that would constitute a change in control (as interpreted under the 0000 1000 Xxx) of Adviser; and (C) of any pending or overtly threatened audit, investigation, complaint, examination or other regulatory inquiry (other than routine or sweep regulatory examinations or inspections) relating to the Fund(s) Fund conducted by any state or federal governmental regulatory authority; andauthority provided that Adviser will not be deemed in breach of this disclosure obligation to the extent that counsel has informed Sub-Advise that such disclosure would render Adviser in violation of any applicable law or regulation and provided further, that the Adviser will provide such disclosure to the Sub-Adviser promptly upon the suspension of such impediment;
(xi) Unless prohibited The Trust (i) has established an Anti-Money Laundering Program (“AML Program”) that is designed to comply with the USA PATRIOT Act of 2001 and other applicable U.S. laws and regulations relating to the prevention of money laundering and terrorist financing, and (ii) is subject to the regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) and has policies and procedures designed to comply with the prohibitions and restrictions mandated by OFAC. The Trust, Fund and Adviser recognize and agree that the Sub-Adviser does not have responsibilities regarding the Trust’s AML Program and the Trust’s OFAC policies and procedures and for clearing the shareholders of the Fund through the AML Program and the Trust’s OFAC policies and procedures;
(xii) The Adviser understands, acknowledges, represents and agrees (a) that the acceptance of this Agreement together with the remittance of the appropriate documentation will not breach any applicable law, rule money laundering rules or regulation, regulations and (b) to promptly provide to the Sub-Adviser documentation verifying its identity as required in subsection 7(b)(xii) below. Adviser will provide additional information or take such other actions as may be necessary or advisable for Sub-Adviser to comply with prompt written notice if any requirements related to money laundering rules or regulations, related legal process or appropriate requests (whether formal or informal) or otherwise. Adviser hereby consents to disclosure by the Sub-Adviser and its agents to relevant third parties of information pertaining to Adviser in respect of such rules or regulations or information requests related thereto. Further, Adviser represents and warrants that no party which either (x) has had any of its assets blocked under the representationsOFAC maintained list of Specially Designated Nationals Blocked Persons, warranties the U.S. Presidential Executive Order 13224, Financial Action Task Force on Money Laundering’s list of non-cooperative jurisdictions, the U.S. Department of the Treasury’s Financial Crimes Enforcement Network Adviser list or covenants in this Section 7(b) shall be breachedany other sanction, regulation or law promulgated by ay U.S. governmental entity or intergovernmental group organization of which the U.S. is a member (collectively, the “U.S. Sanction Laws”), or become inaccurate(y) has been identified by the U.S. Government as a person whose assets are blocked under the U.S. Sanction Laws, has any beneficial interest in any material respect.the Adviser; and
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