APPOINTMENT OF ADVISER. The Company hereby appoints the Adviser to act as an investment adviser to the Funds, subject to the supervision and oversight the Board of Trustees (the “Board”) of the Company, for the period and on the terms set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein specified in Schedule A. (a) Subject to the supervision of the Board and consistent with its fiduciary duties to each Fund, the Adviser will manage the investment operations and determine the composition of the portfolio of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Funds, in accordance with the terms of this Agreement, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA (the “Prospectus and SAI”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will: (i) furnish continuously an investment program for each Fund; (ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund; (iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested; (iv) make changes on behalf of the Company in the investments for each Fund; (v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing; (vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Adviser for each security or other investment/asset in each Fund for which market prices are not readily available; (vii) provide any and all material performance information, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed by the Adviser in managing the Funds that may be reasonably necessary, under applicable laws, to allow the Funds or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and (viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions. (c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to the Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board of the Company. (d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Adviser's duties under this Agreement. (e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth herein. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In no instance will Fund securities be purchased from or sold to the Adviser, or any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds. (f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board. (g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Adviser in the manner which the Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships. (h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein. (i) The Adviser will, unless and until otherwise directed by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company. (j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 10 contracts
Samples: Investment Advisory Agreement (DBX Etf Trust), Investment Advisory Agreement (DBX Etf Trust), Investment Advisory Agreement (DBX Etf Trust)
APPOINTMENT OF ADVISER. The Company Adviser hereby appoints the Adviser to act as an investment adviser to the Fundsundertakes and agrees, subject to the supervision and oversight the Board of Trustees (the “Board”) of the Company, for the period and on upon the terms set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services conditions herein set forth, to provide overall investment management services for the compensation herein specified Fund and in Schedule A.
connection therewith to: (ai) Subject to supervise the supervision of the Board and consistent with its fiduciary duties to each Fund, the Adviser will manage the ’s investment operations and determine the composition of the portfolio of each Fundprogram, including the purchase, retention advising and disposition of the securities and other instruments held by the Funds, in accordance consulting with the terms Fund’s board of this Agreement, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA trustees (the “Prospectus and SAIBoard of Trustees”), as they may be amended or supplemented from time to time. As part of ) regarding the services it will provide hereunder, the Adviser will:
(i) furnish continuously an Fund’s overall investment program for each Fund;
strategy; (ii) designate make, in consultation with the identity and weighting Fund’s Board of Trustees, investment strategy decisions for the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
; (iii) provide supervision of each Fund's investments manage the investing and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, reinvesting of the assets of each Fund will be held uninvested;
Fund’s assets; (iv) make changes place purchase and sale orders on behalf of the Company in the investments for each Fund;
; (v) maintain books and records with respect to each Fund's securities transactions and keep advise the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Adviser for each security or other investment/asset in each Fund for which market prices are not readily available;
(vii) provide any and all material performance information, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed by the Adviser in managing the Funds that may be reasonably necessary, under applicable laws, to allow the Funds or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental matters relating to the furtherance or conduct Fund’s use of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to the Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Companyleveraging techniques; (vi) provide or procure the rules provision of any securities exchange applicable research and statistical data to a the Fund in relation to investing and other matters within the scope of the investment objective and limitations of the Fund; (vii) monitor the Company's policies performance of the Fund’s outside service providers, including the Fund’s administrator, transfer agent and procedures adopted pursuant to Rule 38a-1 under custodian; (viii) be responsible for compliance by the 1940 Act (the “Compliance Manual”)Fund with U.S. federal, state and other applicable laws and regulations; and (viiiix) other policiespay the salaries, procedures fees and directives adopted from time to time by the Board expenses of such of the Company.
(d) The AdviserFund’s trustees, at its expenseofficers or employees who are trustees, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees officers or employees of any personnel required for the Adviser to faithfully perform or any of its duties under this Agreement; affiliates, except that the Fund will bear travel expenses or an appropriate portion thereof of trustees and (ii) furnish administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth herein. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name officers of the Fund who are trustees, officers or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all employees of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In no instance will Fund securities be purchased from or sold to the Adviser, or any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities that such expenses relate to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation attendance at meetings of the securities so purchased Board of Trustees or sold, as well as any committees thereof. The Adviser may delegate any of the expenses incurred in foregoing responsibilities to a third party with the transaction, will be consent of the Fund. The Fund acknowledges that the Adviser makes no warranty that any investments made by the Adviser hereunder will not depreciate in the manner which the Adviser considers value or at any time not be affected by adverse tax consequences, nor does it give any warranty as to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance or profitability of their duties with respect to any of their other clients that may differ from advice given, the assets or the timing success of any investment strategy recommended or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed used by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 7 contracts
Samples: Investment Advisory Agreement (Blackstone / GSO Long-Short Credit Income Fund), Investment Advisory Agreement (Blackstone / GSO Senior Floating Rate Term Fund), Investment Advisory Agreement (Blackstone / GSO Strategic Credit Fund)
APPOINTMENT OF ADVISER. The Company Adviser hereby appoints undertakes and agrees, upon the Adviser terms and conditions herein set forth, to act provide overall investment advisory services for the Fund and in connection therewith to, in accordance with the Fund’s investment objective, policies and restrictions as an investment adviser in effect from time to time:
(a) determining the composition of the Fund’s portfolio, the nature and timing of the changes to the FundsFund’s portfolio and the manner of implementing such changes in accordance with the Fund’s investment objective, subject policies and restrictions;
(b) identifying investment opportunities and making investment decisions for the Fund, including negotiating the terms of investments in, and dispositions of, portfolio securities and other instruments on the Fund’s behalf;
(c) monitoring the Fund’s investments;
(d) performing due diligence on prospective portfolio companies;
(e) exercising voting rights in respect of portfolio securities and other investments for the Fund;
(f) serving on, and exercising observer rights for, boards of directors and similar committees of the Fund’s portfolio companies;
(g) negotiating, obtaining and managing financing facilities and other forms of leverage; and
(h) providing the Fund with such other investment advisory and related services as the Fund may, from time to time, reasonably require for the supervision and oversight investment of capital, which may include, without limitation:
(i) making, in consultation with the Fund’s board of trustees (the “Board of Trustees”), investment strategy decisions for the Fund;
(ii) reasonably assisting the Board of Trustees (and the “Board”) Fund’s other service providers with the valuation of the CompanyFund’s assets;
(iii) directing investment professionals of the Adviser or non-investment professionals of the Administrator (as defined below) to provide managerial assistance to portfolio companies of the Fund as requested by the Fund, from time to time; and
(iv) exercising voting rights in respect of the Fund’s portfolio securities and other investments.
(vi) shall apply.
(v) The Adviser shall, upon request by an official or agency administering the securities laws of a state (a “State Administrator”), submit to such State Administrator the reports and statements required to be distributed to the Fund’s shareholders pursuant to this Agreement, any registration statement filed with the SEC and applicable federal and state law.
(vi) The Adviser has a fiduciary responsibility and duty to the Fund for the period safekeeping and on use of all the terms set forth funds and assets of the Fund, whether or not in this Agreementthe Adviser’s immediate possession or control. The Adviser accepts shall not employ, or permit another to employ, such appointment and agrees to render the services herein set forth, funds or assets except for the compensation herein specified in Schedule A.
(a) exclusive benefit of the Fund. The Adviser shall not contract away any fiduciary obligation owed by the Adviser to the Fund’s shareholders under common law. Subject to the supervision of the Board of Trustees, the Adviser shall have the power and consistent with authority on behalf of the Fund to effectuate its fiduciary duties investment decisions for the Fund, including the execution and delivery of all documents relating to each the Fund’s investments, the placing of orders for other purchase or sale transactions on behalf of the Fund and causing the Fund to pay investment-related expenses. In the event that the Fund determines to acquire debt financing, the Adviser will manage arrange for such financing on the investment operations and determine Fund’s behalf. If it is necessary or appropriate for the composition Adviser to make investments on behalf of the portfolio Fund through a special purpose vehicle, the Adviser shall have authority to create or arrange for the creation of each Fund, including the purchase, retention such special purpose vehicle and disposition of the securities and other instruments held by the Funds, to make such investments through such special purpose vehicle (in accordance with the terms Investment Company Act of this Agreement1940, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA as amended (the “Prospectus and SAI1940 Act”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures). Subject to the foregoing, the Adviser will determine the fair value prior approval of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent majority of the Adviser for each security or other investment/asset in each Fund for which market prices Board of Trustees, including a majority of the Board of Trustees who are not readily available;
(vii) provide any and all material performance information“interested persons” of the Fund and, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed extent required by the Adviser in managing 1940 Act and the Funds that may be reasonably necessaryrules and regulations thereunder, under subject to any applicable laws, to allow the Funds guidance or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives interpretation of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to or its staff, by the Advisershareholders of the Fund, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Actapplicable, the Advisers ActAdviser may, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board time, delegate to a sub-adviser or other service provider any of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its ’s duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and the management of all equipment necessary for the efficient conduct or a portion of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth hereinassets being managed. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures acknowledges that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In makes no instance will Fund securities be purchased from or sold to the Adviser, or warranty that any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be investments made by the Adviser hereunder will not depreciate in the manner which the Adviser considers value or at any time not be affected by adverse tax consequences, nor does it give any warranty as to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance or profitability of their duties with respect to any of their other clients that may differ from advice given, the assets or the timing success of any investment strategy recommended or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed used by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 6 contracts
Samples: Investment Advisory Agreement (Bain Capital Private Credit), Investment Advisory Agreement (HPS Corporate Lending Fund), Investment Advisory Agreement (HPS Corporate Lending Fund)
APPOINTMENT OF ADVISER. The Company Adviser hereby appoints undertakes and agrees, upon the Adviser terms and conditions herein set forth, to act provide overall investment advisory services for the Fund and in connection therewith to, in accordance with the Fund’s investment objective, policies and restrictions as an investment adviser in effect from time to time:
(a) determining the composition of the Fund’s portfolio, the nature and timing of the changes to the FundsFund’s portfolio and the manner of implementing such changes in accordance with the Fund’s investment objective, subject policies and restrictions;
(b) identifying investment opportunities and making investment decisions for the Fund, including negotiating the terms of investments in, and dispositions of, portfolio securities and other instruments on the Fund’s behalf;
(c) monitoring the Fund’s investments;
(d) performing due diligence on prospective portfolio companies;
(e) exercising voting rights in respect of portfolio securities and other investments for the Fund;
(f) serving on, and exercising observer rights for, boards of directors and similar committees of the Fund’s portfolio companies;
(g) negotiating, obtaining and managing financing facilities and other forms of leverage; and
(h) providing the Fund with such other investment advisory and related services as the Fund may, from time to time, reasonably require for the supervision investment of capital, which may include, without limitation:
(i) making, in consultation with the Fund’s board of trustees (the “Board of Trustees”), investment strategy decisions for the Fund;
(ii) serving as the Fund’s valuation designee pursuant to Rule 2a-5 under the Investment Company Act of 1940, as amended (the “1940 Act”) and oversight reasonably assisting the Board of Trustees (and the “Board”) Fund’s other service providers with the valuation of the CompanyFund’s assets;
(iii) directing investment professionals of the Adviser or non-investment professionals of the Administrator (as defined below) to provide managerial assistance to portfolio companies of the Fund as requested by the Fund, from time to time; and
(iv) exercising voting rights in respect of the Fund’s portfolio securities and other investments.
(v) The Adviser shall, upon request by an official or agency administering the securities laws of a state (a “State Administrator”), submit to such State Administrator the reports and statements required to be distributed to the Fund’s shareholders pursuant to this Agreement, any registration statement filed with the SEC and applicable federal and state law.
(vi) The Adviser has a fiduciary responsibility and duty to the Fund for the period safekeeping and on use of all the terms set forth funds and assets of the Fund, whether or not in this Agreementthe Adviser’s immediate possession or control. The Adviser accepts shall not employ, or permit another to employ, such appointment and agrees to render the services herein set forth, funds or assets except for the compensation herein specified in Schedule A.exclusive benefit of the Fund. The Adviser shall not contract away any fiduciary obligation owed by the Adviser to the Fund’s shareholders under common law.
(ai) Subject to the supervision of the Board of Trustees, the Adviser shall have the power and consistent with authority on behalf of the Fund to effectuate its fiduciary duties investment decisions for the Fund, including the execution and delivery of all documents relating to each the Fund’s investments, the placing of orders for other purchase or sale transactions on behalf of the Fund and causing the Fund to pay investment-related expenses. In the event that the Fund determines to acquire debt financing, the Adviser will manage arrange for such financing on the investment operations and determine Fund’s behalf. If it is necessary or appropriate for the composition Adviser to make investments on behalf of the portfolio Fund through a special purpose vehicle, the Adviser shall have authority to create or arrange for the creation of each Fund, including the purchase, retention such special purpose vehicle and disposition of the securities and other instruments held by the Funds, to make such investments through such special purpose vehicle (in accordance with the terms of this Agreement, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA (the “Prospectus and SAI”1940 Act), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:.
(ij) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value prior approval of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent majority of the Adviser for each security or other investment/asset in each Fund for which market prices Board of Trustees, including a majority of the Board of Trustees who are not readily available;
(vii) provide any and all material performance information“interested persons” of the Fund and, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed extent required by the Adviser in managing 1940 Act and the Funds that may be reasonably necessaryrules and regulations thereunder, under subject to any applicable laws, to allow the Funds guidance or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives interpretation of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to or its staff, by the Advisershareholders of the Fund, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Actapplicable, the Advisers ActAdviser may, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board time, delegate to a sub-adviser or other service provider any of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its ’s duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and the management of all equipment necessary for the efficient conduct or a portion of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth hereinassets being managed. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures acknowledges that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In makes no instance will Fund securities be purchased from or sold to the Adviser, or warranty that any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be investments made by the Adviser hereunder will not depreciate in the manner which the Adviser considers value or at any time not be affected by adverse tax consequences, nor does it give any warranty as to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance or profitability of their duties with respect to any of their other clients that may differ from advice given, the assets or the timing success of any investment strategy recommended or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed used by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 5 contracts
Samples: Investment Advisory Agreement (HPS Corporate Capital Solutions BDC), Investment Advisory Agreement (HPS Corporate Capital Solutions BDC), Investment Advisory Agreement (HPS Corporate Capital Solutions Fund)
APPOINTMENT OF ADVISER. The Company Adviser hereby appoints undertakes and agrees, upon the Adviser terms and conditions herein set forth, to act provide overall investment advisory services for the Fund and in connection therewith to, in accordance with the Fund’s investment objective, policies and restrictions as an investment adviser in effect from time to time:
(a) determining the composition of the Fund’s portfolio, the nature and timing of the changes to the FundsFund’s portfolio and the manner of implementing such changes in accordance with the Fund’s investment objective, subject policies and restrictions;
(b) identifying investment opportunities and making investment decisions for the Fund, including negotiating the terms of investments in, and dispositions of, portfolio securities and other instruments on the Fund’s behalf;
(c) monitoring the Fund’s investments;
(d) performing due diligence on prospective portfolio companies;
(e) exercising voting rights in respect of portfolio securities and other investments for the Fund;
(f) serving on, and exercising observer rights for, boards of directors and similar committees of the Fund’s portfolio companies;
(g) negotiating, obtaining and managing financing facilities and other forms of leverage; and
(h) providing the Fund with such other investment advisory and related services as the Fund may, from time to time, reasonably require for the supervision and oversight investment of capital, which may include, without limitation:
(i) making, in consultation with the Fund’s board of trustees (the “Board of Trustees”), investment strategy decisions for the Fund;
(ii) reasonably assisting the Board of Trustees (and the “Board”) Fund’s other service providers with the valuation of the CompanyFund’s assets;
(iii) directing investment professionals of the Adviser or non-investment professionals of the Administrator (as defined below) to provide managerial assistance to portfolio companies of the Fund as requested by the Fund, from time to time; and
(iv) exercising voting rights in respect of the Fund’s portfolio securities and other investments.
(v) The Adviser shall, upon request by an official or agency administering the securities laws of a state (a “State Administrator”), submit to such State Administrator the reports and statements required to be distributed to the Fund’s shareholders pursuant to this Agreement, any registration statement filed with the SEC and applicable federal and state law.
(vi) The Adviser has a fiduciary responsibility and duty to the Fund for the period safekeeping and on use of all the terms set forth funds and assets of the Fund, whether or not in this Agreementthe Adviser’s immediate possession or control. The Adviser accepts shall not employ, or permit another to employ, such appointment and agrees to render the services herein set forth, funds or assets except for the compensation herein specified in Schedule A.
(a) exclusive benefit of the Fund. The Adviser shall not contract away any fiduciary obligation owed by the Adviser to the Fund’s shareholders under common law. Subject to the supervision of the Board of Trustees, the Adviser shall have the power and consistent with authority on behalf of the Fund to effectuate its fiduciary duties investment decisions for the Fund, including the execution and delivery of all documents relating to each the Fund’s investments, the placing of orders for other purchase or sale transactions on behalf of the Fund and causing the Fund to pay investment-related expenses. In the event that the Fund determines to acquire debt financing, the Adviser will manage arrange for such financing on the investment operations and determine Fund’s behalf. If it is necessary or appropriate for the composition Adviser to make investments on behalf of the portfolio Fund through a special purpose vehicle, the Adviser shall have authority to create or arrange for the creation of each Fund, including the purchase, retention such special purpose vehicle and disposition of the securities and other instruments held by the Funds, to make such investments through such special purpose vehicle (in accordance with the terms Investment Company Act of this Agreement1940, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA as amended (the “Prospectus and SAI1940 Act”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures). Subject to the foregoing, the Adviser will determine the fair value prior approval of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent majority of the Adviser for each security or other investment/asset in each Fund for which market prices Board of Trustees, including a majority of the Board of Trustees who are not readily available;
(vii) provide any and all material performance information“interested persons” of the Fund and, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed extent required by the Adviser in managing 1940 Act and the Funds that may be reasonably necessaryrules and regulations thereunder, under subject to any applicable laws, to allow the Funds guidance or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives interpretation of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to or its staff, by the Advisershareholders of the Fund, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Actapplicable, the Advisers ActAdviser may, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board time, delegate to a sub-adviser or other service provider any of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its ’s duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and the management of all equipment necessary for the efficient conduct or a portion of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth hereinassets being managed. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures acknowledges that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In makes no instance will Fund securities be purchased from or sold to the Adviser, or warranty that any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be investments made by the Adviser hereunder will not depreciate in the manner which the Adviser considers value or at any time not be affected by adverse tax consequences, nor does it give any warranty as to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance or profitability of their duties with respect to any of their other clients that may differ from advice given, the assets or the timing success of any investment strategy recommended or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed used by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 4 contracts
Samples: Investment Advisory Agreement (Blackstone Private Credit Fund), Investment Advisory Agreement (Bain Capital Private Credit), Investment Advisory Agreement (Blackstone Private Credit Fund)
APPOINTMENT OF ADVISER. The Company Adviser hereby appoints undertakes and agrees, upon the Adviser terms and conditions herein set forth, to act provide overall investment advisory services for the Fund and in connection therewith to, in accordance with the Fund’s investment objective, policies and restrictions as an investment adviser in effect from time to time:
(i) determining the composition of the Fund’s portfolio, the nature and timing of the changes to the FundsFund’s portfolio and the manner of implementing such changes in accordance with the Fund’s investment objective, subject policies and restrictions;
(ii) identifying investment opportunities and making investment decisions for the Fund, including negotiating the terms of investments in, and dispositions of, portfolio securities and other instruments on the Fund’s behalf;
(iii) monitoring the Fund’s investments;
(iv) performing due diligence on prospective portfolio companies;
(v) exercising voting rights in respect of portfolio securities and other investments for the Fund;
(vi) serving on, and exercising observer rights for, boards of directors and similar committees of the Fund’s portfolio companies;
(vii) negotiating, obtaining and managing financing facilities and other forms of leverage; and
(viii) providing the Fund with such other investment advisory and related services as the Fund may, from time to time, reasonably require for the supervision and oversight investment of capital, which may include, without limitation:
a. making, in consultation with the Fund’s board of trustees (the “Board of Trustees”), investment strategy decisions for the Fund;
b. reasonably assisting the Board of Trustees (and the “Board”) Fund’s other service providers with the valuation of the CompanyFund’s assets;
c. directing investment professionals of the Adviser or non-investment professionals of the Administrator (as defined below) to provide managerial assistance to portfolio companies of the Fund as requested by the Fund, for from time to time; and
d. exercising voting rights in respect of the period Fund’s portfolio securities and on the terms set forth in this Agreementother investments. The Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein specified in Schedule A.
(a) Subject to the supervision of the Board of Trustees, the Adviser shall have the power and consistent with authority on behalf of the Fund to effectuate its fiduciary duties investment decisions for the Fund, including the execution and delivery of all documents relating to each the Fund’s investments, the placing of orders for other purchase or sale transactions on behalf of the Fund and causing the Fund to pay investment-related expenses. In the event that the Fund determines to acquire debt financing, the Adviser will manage arrange for such financing on the investment operations and determine Fund’s behalf. If it is necessary or appropriate for the composition Adviser to make investments on behalf of the portfolio Fund through a special purpose vehicle, the Adviser shall have authority to create or arrange for the creation of each Fund, including the purchase, retention such special purpose vehicle and disposition of the securities and other instruments held by the Funds, to make such investments through such special purpose vehicle (in accordance with the terms Investment Company Act of this Agreement1940, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA as amended (the “Prospectus and SAI1940 Act”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures). Subject to the foregoing, the Adviser will determine the fair value prior approval of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent majority of the Adviser for each security or other investment/asset in each Fund for which market prices Board of Trustees, including a majority of the Board of Trustees who are not readily available;
(vii) provide any and all material performance information“interested persons” of the Fund and, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed extent required by the Adviser in managing 1940 Act and the Funds that may be reasonably necessaryrules and regulations thereunder, under subject to any applicable laws, to allow the Funds guidance or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives interpretation of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to or its staff, by the Advisershareholders of the Fund, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Actapplicable, the Advisers ActAdviser may, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board time, delegate to a sub-adviser or other service provider any of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its ’s duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and the management of all equipment necessary for the efficient conduct or a portion of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth hereinassets being managed. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures acknowledges that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In makes no instance will Fund securities be purchased from or sold to the Adviser, or warranty that any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be investments made by the Adviser hereunder will not depreciate in the manner which the Adviser considers value or at any time not be affected by adverse tax consequences, nor does it give any warranty as to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance or profitability of their duties with respect to any of their other clients that may differ from advice given, the assets or the timing success of any investment strategy recommended or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed used by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 4 contracts
Samples: Investment Advisory Agreement, Investment Advisory Agreement (Blackstone Secured Lending Fund), Investment Advisory Agreement (Blackstone / GSO Secured Lending Fund)
APPOINTMENT OF ADVISER. (a) The Company Adviser hereby appoints undertakes and agrees, upon the Adviser terms and conditions herein set forth, to act provide overall investment advisory services for the Fund and in connection therewith to, in accordance with the Fund’s investment objectives, policies and restrictions as an investment adviser in effect from time to time:
(1) determining the composition of the Fund’s portfolio, the nature and timing of the changes to the FundsFund’s portfolio and the manner of implementing such changes in accordance with the Fund’s investment objective, subject policies and restrictions;
(2) identifying investment opportunities and making investment decisions for the Fund, including negotiating the terms of investments in, and dispositions of, portfolio securities and other instruments on the Fund’s behalf;
(3) monitoring the Fund’s investments;
(4) performing due diligence on prospective portfolio companies;
(5) exercising voting rights in respect of portfolio securities and other investments for the Fund;
(6) serving on, and exercising observer rights for, boards of directors and similar committees of the Fund’s portfolio companies;
(7) negotiating, obtaining and managing financing facilities and other forms of leverage; and
(8) providing the Fund with such other investment advisory and related services as the Fund may, from time to time, reasonably require for the supervision and oversight investment of capital, which may include, without limitation:
(A) making, in consultation with the Fund’s board of trustees (the “Board of Trustees”), investment strategy decisions for the Fund;
(B) reasonably assisting the Board of Trustees (and the “Board”) Fund’s other service providers with the valuation of the Company, for the period and on the terms set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein specified in Schedule A.Fund’s assets;
(aC) directing investment professionals or non-investment professionals of the Adviser to provide managerial assistance to portfolio companies of the Fund as requested by the Fund, from time to time; and
(D) exercising voting rights in respect of the Fund’s portfolio securities and other investments.
(b) Subject to the supervision of the Board of Trustees, the Adviser shall have the power and consistent with authority on behalf of the Fund to effectuate its fiduciary duties investment decisions for the Fund, including the execution and delivery of all documents relating to each the Fund’s investments, the placing of orders for other purchase or sale transactions on behalf of the Fund and causing the Fund to pay investment-related expenses. In the event that the Fund determines to acquire debt financing, the Adviser will manage arrange for such financing on the investment operations and determine Fund’s behalf. If it is necessary or appropriate for the composition Adviser to make investments on behalf of the portfolio Fund through a special purpose vehicle, the Adviser shall have authority to create or arrange for the creation of each Fund, including the purchase, retention such special purpose vehicle and disposition of the securities and other instruments held by the Funds, to make such investments through such special purpose vehicle (in accordance with the terms of this Agreement, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA (the “Prospectus and SAI”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Investment Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Adviser for each security or other investment/asset in each Fund for which market prices are not readily available;
(vii) provide any and all material performance information, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed by the Adviser in managing the Funds that may be reasonably necessary, under applicable laws, to allow the Funds or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to the Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth herein. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In no instance will Fund securities be purchased from or sold to the Adviser, or any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 19341940, as amended (the “Exchange 1940 Act”), without the express written approval of the Board).
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Adviser in the manner which the Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 3 contracts
Samples: Investment Advisory Agreement (BIP Ventures Evergreen BDC), Investment Advisory Agreement (BIP Ventures Evergreen BDC), Investment Advisory Agreement (BIP Evergreen Venture Fund)
APPOINTMENT OF ADVISER. The Company Adviser hereby appoints undertakes and agrees, upon the Adviser terms and conditions herein set forth, to act provide overall investment advisory services for the Fund and in connection therewith to, in accordance with the Fund’s investment objective, policies and restrictions as an investment adviser in effect from time to time:
(a) determining the composition of the Fund’s portfolio, the nature and timing of the changes to the FundsFund’s portfolio and the manner of implementing such changes in accordance with the Fund’s investment objective, subject policies and restrictions;
(b) identifying investment opportunities and making investment decisions for the Fund, including negotiating the terms of investments in, and dispositions of, portfolio securities and other instruments on the Fund’s behalf;
(c) monitoring the Fund’s investments;
(d) performing due diligence on prospective portfolio companies;
(e) exercising voting rights in respect of portfolio securities and other investments for the Fund;
(f) serving on, and exercising observer rights for, boards of directors and similar committees of the Fund’s portfolio companies;
(g) negotiating, obtaining and managing financing facilities and other forms of leverage; and
(h) providing the Fund with such other investment advisory and related services as the Fund may, from time to time, reasonably require for the supervision and oversight investment of capital, which may include, without limitation:
(i) making, in consultation with the Fund’s board of trustees (the “Board of Trustees”), investment strategy decisions for the Fund;
(ii) reasonably assisting the Board of Trustees (and the “Board”) Fund’s other service providers with the valuation of the Company, for the period and on the terms set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein specified in Schedule A.Fund’s assets;
(aiii) directing investment professionals of the Adviser or non-investment professionals of the Administrator (as defined below) to provide managerial assistance to portfolio companies of the Fund as requested by the Fund, from time to time; and
(iv) exercising voting rights in respect of the Fund’s portfolio securities and other investments. Subject to the supervision of the Board of Trustees, the Adviser shall have the power and consistent with authority on behalf of the Fund to effectuate its fiduciary duties investment decisions for the Fund, including the execution and delivery of all documents relating to each the Fund’s investments, the placing of orders for other purchase or sale transactions on behalf of the Fund and causing the Fund to pay investment-related expenses. In the event that the Fund determines to acquire debt financing, the Adviser will manage arrange for such financing on the investment operations and determine Fund’s behalf. If it is necessary or appropriate for the composition Adviser to make investments on behalf of the portfolio Fund through a special purpose vehicle, the Adviser shall have authority to create or arrange for the creation of each Fund, including the purchase, retention such special purpose vehicle and disposition of the securities and other instruments held by the Funds, to make such investments through such special purpose vehicle (in accordance with the terms Investment Company Act of this Agreement1940, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA as amended (the “Prospectus and SAI1940 Act”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures). Subject to the foregoing, the Adviser will determine the fair value prior approval of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent majority of the Adviser for each security or other investment/asset in each Fund for which market prices Board of Trustees, including a majority of the Board of Trustees who are not readily available;
(vii) provide any and all material performance information“interested persons” of the Fund and, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed extent required by the Adviser in managing 1940 Act and the Funds that may be reasonably necessaryrules and regulations thereunder, under subject to any applicable laws, to allow the Funds guidance or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives interpretation of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to or its staff, by the Advisershareholders of the Fund, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Actapplicable, the Advisers ActAdviser may, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board time, delegate to a sub-adviser or other service provider any of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its ’s duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and the management of all equipment necessary for the efficient conduct or a portion of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth hereinassets being managed. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures acknowledges that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In makes no instance will Fund securities be purchased from or sold to the Adviser, or warranty that any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be investments made by the Adviser hereunder will not depreciate in the manner which the Adviser considers value or at any time not be affected by adverse tax consequences, nor does it give any warranty as to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance or profitability of their duties with respect to any of their other clients that may differ from advice given, the assets or the timing success of any investment strategy recommended or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed used by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 3 contracts
Samples: Investment Advisory Agreement (Onex Falcon Direct Lending BDC Fund), Investment Advisory Agreement (Onex Direct Lending BDC Fund), Investment Advisory Agreement (Onex Falcon Direct Lending BDC Fund)
APPOINTMENT OF ADVISER. The Company Adviser hereby appoints undertakes and agrees, upon the Adviser terms and conditions herein set forth, to act provide overall investment advisory services for the Fund and in connection therewith to, in accordance with the Fund’s investment objective, policies and restrictions as an investment adviser in effect from time to time:
(a) determining the composition of the Fund’s portfolio, the nature and timing of the changes to the FundsFund’s portfolio and the manner of implementing such changes in accordance with the Fund’s investment objective, subject policies and restrictions;
(b) identifying investment opportunities and making investment decisions for the Fund, including negotiating the terms of investments in, and dispositions of, portfolio securities and other instruments on the Fund’s behalf;
(c) monitoring the Fund’s investments;
(d) performing due diligence on prospective portfolio companies;
(e) exercising voting rights in respect of portfolio securities and other investments for the Fund;
(f) serving on, and exercising observer rights for, boards of directors and similar committees of the Fund’s portfolio companies;
(g) negotiating, obtaining and managing financing facilities and other forms of leverage; and
(h) providing the Fund with such other investment advisory and related services as the Fund may, from time to time, reasonably require for the supervision and oversight investment of capital, which may include, without limitation:
(i) making, in consultation with the Fund’s board of trustees (the “Board of Trustees”), investment strategy decisions for the Fund;
(ii) reasonably assisting the Board of Trustees and the Fund’s other service providers, as Valuation Designee, with the valuation of the Fund’s investments;
(iii) directing investment professionals of the Adviser or non-investment professionals of the Administrator (as defined below) to provide managerial assistance to portfolio companies of the Fund as requested by the Fund, from time to time; and
(iv) exercising voting rights in respect of the Fund’s portfolio securities and other investments. The Board of Trustees has designated the Adviser as the “Board”) Valuation Designee” to determine the valuation of the Company, for the period and on the terms set forth in this AgreementFund’s investments. The Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein specified in Schedule A.
(a) Subject to the supervision of the Board of Trustees, the Adviser shall have the power and consistent with authority on behalf of the Fund to effectuate its fiduciary duties investment decisions for the Fund, including the execution and delivery of all documents relating to each the Fund’s investments, the placing of orders for other purchase or sale transactions on behalf of the Fund and causing the Fund to pay investment-related expenses. In the event that the Fund determines to acquire debt financing, the Adviser will manage arrange for such financing on the investment operations and determine Fund’s behalf. If it is necessary or appropriate for the composition Adviser to make investments on behalf of the portfolio Fund through a special purpose vehicle, the Adviser shall have authority to create or arrange for the creation of each Fund, including the purchase, retention such special purpose vehicle and disposition of the securities and other instruments held by the Funds, to make such investments through such special purpose vehicle (in accordance with the terms Investment Company Act of this Agreement1940, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA as amended (the “Prospectus and SAI1940 Act”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures). Subject to the foregoing, the Adviser will determine the fair value prior approval of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent majority of the Adviser for each security or other investment/asset in each Fund for which market prices Board of Trustees, including a majority of the Board of Trustees who are not readily available;
(vii) provide any and all material performance information“interested persons” of the Fund and, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed extent required by the Adviser in managing 1940 Act and the Funds that may be reasonably necessaryrules and regulations thereunder, under subject to any applicable laws, to allow the Funds guidance or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives interpretation of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to or its staff, by the Advisershareholders of the Fund, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Actapplicable, the Advisers ActAdviser may, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board time, delegate to a sub-adviser or other service provider any of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its ’s duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and the management of all equipment necessary for the efficient conduct or a portion of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth hereinassets being managed. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures acknowledges that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In makes no instance will Fund securities be purchased from or sold to the Adviser, or warranty that any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be investments made by the Adviser hereunder will not depreciate in the manner which the Adviser considers value or at any time not be affected by adverse tax consequences, nor does it give any warranty as to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance or profitability of their duties with respect to any of their other clients that may differ from advice given, the assets or the timing success of any investment strategy recommended or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed used by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 3 contracts
Samples: Investment Advisory Agreement (Gemcorp Commodities Alternative Products Fund), Investment Advisory Agreement (T. Rowe Price OHA Flexible Credit Income Fund), Investment Advisory Agreement (T. Rowe Price OHA Flexible Credit Income Fund)
APPOINTMENT OF ADVISER. The Company hereby appoints the Adviser to act as an investment adviser to the Funds, subject to the supervision and oversight the Board of Trustees (the “Board”) of the Company, for the period and on the terms set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein specified in Schedule A.
(a) Subject to the supervision of the Board and consistent with its fiduciary duties to each Fund, the Adviser will manage the investment operations and determine the composition of the portfolio of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Funds, in accordance with the terms of this Agreement, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA (the “Prospectus and SAI”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Adviser for each security or other investment/asset in each Fund for which market prices are not readily available;
(vii) provide any and all material performance information, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed by the Adviser in managing the Funds that may be reasonably necessary, under applicable laws, to allow the Funds or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt 2 responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to the Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth herein. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In no instance will Fund securities be purchased from or sold to the Adviser, or any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Adviser in the manner which the Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 3 contracts
Samples: Investment Advisory Agreement (DBX Etf Trust), Investment Advisory Agreement (DBX Etf Trust), Investment Advisory Agreement (DBX ETF Trust)
APPOINTMENT OF ADVISER. (a) The Company Trust hereby appoints the Adviser to act as an investment adviser to the Funds, subject to the supervision Trust and oversight the Board of Trustees (the “Board”) of the Company, its Current Portfolio for the period periods and on the terms herein set forth in this Agreementforth. The Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein specified in Schedule A.provided.
(ab) Subject to In the supervision of event that the Board and consistent with its fiduciary duties to each Fund, Trust establishes one or more portfolios other than the Adviser will manage the investment operations and determine the composition of the portfolio of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Funds, in accordance with the terms of this Agreement, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA (the “Prospectus and SAI”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records Current Portfolio with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by which it desires to retain the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same act as may reasonably be requested from time to time by the Board; and attend meetings with the Boardinvestment adviser hereunder, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly it shall notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Adviser for each security or other investment/asset in each Fund for which market prices are not readily available;
(vii) provide any and all material performance information, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed by the Adviser in managing the Funds that may be reasonably necessary, under applicable laws, to allow the Funds or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of informationwriting. To carry out the duties and responsibilities provided hereunder, If the Adviser is hereby authorized, as agent willing to render such services under this Agreement it shall notify the Trust in writing whereupon such portfolio shall become a Portfolio hereunder and attorney-in-fact for shall be subject to the Company, for the account of, at the risk provisions of and in the name of the Funds, this Agreement to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect extent as the Funds might or could do Current Portfolio except to the extent that said provisions (including those relating to the compensation payable by the Trust to the Adviser) are modified with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to Portfolio in writing by the furtherance or conduct of such purchases, sales or other transactionsTrust and the Adviser at the time.
(c) In furnishing services hereunderAt its discretion, the Adviser will be subject tomay provide advisory services under this Agreement through its own employees or the employees of one or more affiliated companies that are qualified to act as investment adviser to the Trust under applicable law and either control, and will perform its responsibilities in accordance, are controlled by or are under control with the followingAdviser, provided that: (i) the Company' s Agreement all persons, when providing services hereunder, are functioning as part of an organized group of persons; and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) such organized group of persons is managed at all times by the ByAdviser's authorized officers. In addition, the Adviser may engage one or more investment advisers that are either registered as such or specifically exempt from registration under the Investment Advisers Act of 1940, as amended, to act as sub-Laws advisers or co-advisers to provide with respect to any Portfolio any or all of the Companyservices set forth in this Agreement, all as shall be set forth in a written contract approved to the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) extent and in the currently effective Prospectus manner required by the 1940 Act and SAI of the Company filed with interpretations thereof by the Securities and Exchange Commission (“SEC”the "Commission") and delivered to the Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board of the Companyits staff.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth herein. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In no instance will Fund securities be purchased from or sold to the Adviser, or any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Adviser in the manner which the Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 3 contracts
Samples: Investment Advisory Agreement (Northern Institutional Funds), Investment Advisory Agreement (Northern Institutional Funds), Investment Advisory Agreement (Northern Institutional Funds)
APPOINTMENT OF ADVISER. The Company hereby appoints the Adviser to act as an investment adviser to the Funds, subject to the supervision and oversight the Board of Trustees (the “Board”) of the Company, for the period and on the terms set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein specified in Schedule A.B.
(a) Subject to the supervision of the Board and consistent with its fiduciary duties to each Fund, the Adviser will manage the investment operations and determine the composition of the portfolio of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Funds, in accordance with the terms of this Agreement, each Fund' s ’s investment objective and policies and each Fund' s ’s then-current prospectus and statement of additional information contained in the Company's ’s Registration Statement on Form N-lA N-1A (the “Prospectus and SAI”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's ’s investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's ’s securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's ’s key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's ’s fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's ’s Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Adviser for each security or other investment/asset in each Fund for which market prices are not readily available;
(vii) provide any and all material performance information, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed by the Adviser in managing the Funds that may be reasonably necessary, under applicable laws, to allow the Funds or their agent to present information concerning the Adviser's ’s prior performance in the Company's ’s Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's ’s administrator, the Company's ’s custodian and foreign custodians, the Company's ’s transfer agent and pricing agents, the Company's ’s officers and all other agents and representatives of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s ’s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to the Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's ’s policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Adviser's ’s duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth herein. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's ’s Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In no instance will Fund securities be purchased from or sold to the Adviser, or any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Adviser in the manner which the Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's ’s then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's ’s proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' ’ operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's ’s service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's ’s business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 3 contracts
Samples: Investment Advisory Agreement (DBX ETF Trust), Investment Advisory Agreement (DBX ETF Trust), Investment Advisory Agreement (DBX ETF Trust)
APPOINTMENT OF ADVISER. (a) The Company Trust hereby appoints the Adviser to act as an investment adviser to the FundsFund, subject to the supervision and oversight the Board of Trustees (the “Board”) of the Company, Trust for the period and on the terms set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein specified in Schedule A.
(ab) Subject to the supervision oversight of the Board and consistent with its fiduciary duties to each Fund, the Adviser will manage the investment operations and determine the composition of the portfolio of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Funds, in accordance with the terms of this Agreement, each Fund' s ’s investment objective and policies and policies, each Fund' s ’s then-current prospectus Prospectus and statement Statement of additional information Additional Information contained in the Company's Trust’s Registration Statement on Form N-lA N-1A (the “Prospectus and SAIRegistration Statement”), as they may be such prospectus and SAI are amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Adviser for each security or other investment/asset in each Fund for which market prices are not readily available;
(vii) provide any and all material performance information, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed by the Adviser in managing the Funds that may be reasonably necessary, under applicable laws, to allow the Funds or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, accordance with the following: (i) the Company' s Trust’s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the CompanyTrust, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI Statement of Additional Information of the Company Trust filed with the Securities and Exchange Commission (“SEC”) and delivered to the Adviser, as the same may be hereafter modified, amended and/or supplementedsupplemented (“Prospectus and SAI”); (iv) the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company Trust and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the CompanyTrust; and (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's Trust’s policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); ) and (viii) other policies, policies and procedures and directives adopted from time to time by the Board of the CompanyTrust.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Adviser's ’s duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth herein. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In no instance will Fund securities be purchased from or sold to the Adviser, or any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Adviser in the manner which the Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 2 contracts
Samples: Investment Advisory Agreement (SP Funds Trust), Investment Advisory Agreement (SP Funds Trust)
APPOINTMENT OF ADVISER. The Company hereby appoints the Adviser to act as an investment adviser to the Funds, subject to the supervision and oversight the Board of Trustees (the “Board”) of the Company, for the period and on the terms set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein specified in Schedule A.
(a) Subject to the supervision of the Board and consistent with its fiduciary duties to each Fund, the Adviser will manage the investment operations and determine the composition of the portfolio of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Funds, in accordance with the terms of this Agreement, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA (the “Prospectus and SAI”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Adviser for each security or other investment/asset in each Fund for which market prices are not readily available;
(vii) provide any and all material performance information, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed by the Adviser in managing the Funds that may be reasonably necessary, under applicable laws, to allow the Funds or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives of the Company, keep all such persons fully personsfully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to the Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth herein. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In no instance will Fund securities be purchased from or sold to the Adviser, or any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Adviser in the manner which the Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 2 contracts
Samples: Investment Advisory Agreement (DBX Etf Trust), Investment Advisory Agreement (DBX Etf Trust)
APPOINTMENT OF ADVISER. The Company Adviser hereby appoints the Adviser to act as an investment adviser to the Fundsundertakes and agrees, subject to the supervision and oversight the Board of Trustees (the “Board”) of the Company, for the period and on upon the terms set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services conditions herein set forth, to provide overall investment advisory services for the compensation herein specified Fund and in Schedule A.
(a) Subject to the supervision of the Board and consistent with its fiduciary duties to each Fund, the Adviser will manage the investment operations and determine the composition of the portfolio of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Fundsconnection therewith to, in accordance with the terms of this AgreementFund’s investment objective, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained restrictions as in the Company's Registration Statement on Form N-lA (the “Prospectus and SAI”), as they may be amended or supplemented effect from time to time. As part :
(a) determining the composition of the services it will provide hereunderFund’s portfolio, the Adviser willnature and timing of the changes to the Fund’s portfolio and the manner of implementing such changes in accordance with the Fund’s investment objective, policies and restrictions;
(b) identifying investment opportunities and making investment decisions for the Fund, including negotiating the terms of investments in, and dispositions of, portfolio securities and other instruments on the Fund’s behalf;
(c) monitoring the Fund’s investments;
(d) performing due diligence on prospective portfolio companies;
(e) exercising voting rights in respect of portfolio securities and other investments for the Fund;
(f) serving on, and exercising observer rights for, boards of directors and similar committees of the Fund’s portfolio companies;
(g) negotiating, obtaining and managing financing facilities and other forms of leverage; and
(h) providing the Fund with such other investment advisory and related services as the Fund may, from time to time, reasonably require for the investment of capital, which may include, without limitation:
(i) furnish continuously an making, in consultation with the Fund’s board of trustees (the “Board of Trustees”), investment program strategy decisions for each the Fund;
(ii) designate reasonably assisting the identity Board of Trustees and weighting the Fund’s other service providers with the valuation of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund’s assets;
(iii) directing investment professionals of the Adviser or non-investment professionals of the Administrator (as defined below) to provide supervision managerial assistance to portfolio companies of each the Fund as requested by the Fund's investments and determine , from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;time; and
(iv) make changes on behalf exercising voting rights in respect of the Company in the investments for each Fund;’s portfolio securities and other investments.
(v) maintain books The Adviser shall, upon request by an official or agency administering the securities laws of a state (a “State Administrator”), submit to such State Administrator the reports and records with respect statements required to each be distributed to the Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser ’s shareholders pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the BoardAgreement, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Adviser for each security or other investment/asset in each Fund for which market prices are not readily available;
(vii) provide any and all material performance information, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed by the Adviser in managing the Funds that may be reasonably necessary, under applicable laws, to allow the Funds or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company registration statement filed with the Securities and Exchange Commission (“SEC”) and delivered to the Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other applicable federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; law.
(vi) The Adviser has a fiduciary responsibility and duty to the rules Fund for the safekeeping and use of all the funds and assets of the Fund, whether or not in the Adviser’s immediate possession or control. The Adviser shall not employ, or permit another to employ, such funds or assets except for the exclusive benefit of the Fund. The Adviser shall not contract away any securities exchange applicable fiduciary obligation owed by the Adviser to a the Fund; (vii) ’s shareholders under common law. Subject to the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by supervision of the Board of Trustees, the Company.
(d) The Adviser, at Adviser shall have the power and authority on behalf of the Fund to effectuate its expense, will furnish (i) all necessary facilities and personnelinvestment decisions for the Fund, including salariesthe execution and delivery of all documents relating to the Fund’s investments, expenses the placing of orders for other purchase or sale transactions on behalf of the Fund and fees of any personnel required causing the Fund to pay investment-related expenses. In the event that the Fund determines to acquire debt financing, the Adviser will arrange for such financing on the Fund’s behalf. If it is necessary or appropriate for the Adviser to faithfully perform make investments on behalf of the Fund through a special purpose vehicle, the Adviser shall have authority to create or arrange for the creation of such special purpose vehicle and to make such investments through such special purpose vehicle (in accordance with the Investment Company Act of 1940, as amended (the “1940 Act”)). Subject to the prior approval of a majority of the Board of Trustees, including a majority of the Board of Trustees who are not “interested persons” of the Fund and, to the extent required by the 1940 Act and the rules and regulations thereunder, subject to any applicable guidance or interpretation of the SEC or its staff, by the shareholders of the Fund, as applicable, the Adviser may, from time to time, delegate to a sub-adviser or other service provider (each, a “Sub-Adviser”) any of the Adviser’s duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and the management of all equipment necessary for the efficient conduct or a portion of the assets being managed. The Adviser and not the Fund shall be responsible for any compensation payable to any Sub-Adviser's duties ; provided, however, that the Adviser shall have the right to direct the Fund to pay directly to any Sub-Adviser the amounts due and payable to such Sub-Adviser from the fees and expenses payable to the Adviser under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth herein. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures acknowledges that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In makes no instance will Fund securities be purchased from or sold to the Adviser, or warranty that any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be investments made by the Adviser hereunder will not depreciate in the manner which the Adviser considers value or at any time not be affected by adverse tax consequences, nor does it give any warranty as to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance or profitability of their duties with respect to any of their other clients that may differ from advice given, the assets or the timing success of any investment strategy recommended or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed used by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 2 contracts
Samples: Investment Advisory Agreement (AB Private Lending Fund), Investment Advisory Agreement (AB Private Lending Fund)
APPOINTMENT OF ADVISER. The Company hereby appoints the Adviser to act as an investment adviser to the Funds, subject to the supervision and oversight the Board of Trustees (the “Board”) of the Company, for the period and on the terms set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein specified in Schedule A.
(a) Subject to the supervision of the Board and consistent with its fiduciary duties to each Fund, the Adviser will manage the investment operations and determine the composition of the portfolio of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Funds, in accordance with the terms of this Agreement, each Fund' s ’s investment objective and policies and each Fund' s ’s then-current prospectus and statement of additional information contained in the Company's ’s Registration Statement on Form N-lA N-1A (the “Prospectus and SAI”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's ’s investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's ’s securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's ’s key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's ’s fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's ’s Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Adviser for each security or other investment/asset in each Fund for which market prices are not readily available;
(vii) provide any and all material performance information, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed by the Adviser in managing the Funds that may be reasonably necessary, under applicable laws, to allow the Funds or their agent to present information concerning the Adviser's ’s prior performance in the Company's ’s Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's ’s administrator, the Company's ’s custodian and foreign custodians, the Company's ’s transfer agent and pricing agents, the Company's ’s officers and all other agents and representatives of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s ’s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to the Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's ’s policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Adviser's ’s duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth herein. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's ’s Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In no instance will Fund securities be purchased from or sold to the Adviser, or any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Adviser in the manner which the Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's ’s then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's ’s proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' ’ operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's ’s service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's ’s business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 2 contracts
Samples: Investment Advisory Agreement (DBX ETF Trust), Investment Advisory Agreement (DBX ETF Trust)
APPOINTMENT OF ADVISER. The Company Adviser hereby appoints the Adviser to act as an investment adviser to the Fundsundertakes and agrees, subject to the supervision and oversight the Board of Trustees (the “Board”) of the Company, for the period and on upon the terms set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services conditions herein set forth, to provide overall investment management services for the compensation herein specified Fund and in Schedule A.
connection therewith to: (ai) Subject to supervise the supervision of the Board and consistent with its fiduciary duties to each Fund, the Adviser will manage the ’s investment operations and determine the composition of the portfolio of each Fundprogram, including the purchase, retention advising and disposition of the securities and other instruments held by the Funds, in accordance consulting with the terms Fund’s board of this Agreement, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA trustees (the “Prospectus and SAIBoard of Trustees”), as they may be amended or supplemented from time to time. As part of ) regarding the services it will provide hereunder, the Adviser will:
(i) furnish continuously an Fund’s overall investment program for each Fund;
strategy; (ii) designate make, in consultation with the identity and weighting Fund’s Board of Trustees, investment strategy decisions for the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
; (iii) provide supervision of each Fund's investments manage the investing and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, reinvesting of the assets of each Fund will be held uninvested;
Fund’s assets; (iv) make changes place purchase and sale orders on behalf of the Company in the investments for each Fund;
; (v) maintain books and records with respect to each Fund's securities transactions and keep advise the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Adviser for each security or other investment/asset in each Fund for which market prices are not readily available;
(vii) provide any and all material performance information, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed by the Adviser in managing the Funds that may be reasonably necessary, under applicable laws, to allow the Funds or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental matters relating to the furtherance or conduct Fund’s use of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to the Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Companyleveraging techniques; (vi) provide or procure the rules provision of any securities exchange applicable research and statistical data to a the Fund in relation to investing and other matters within the scope of the investment objective and limitations of the Fund; (vii) monitor the Company's policies performance of the Fund’s outside service providers, including the Fund’s administrator, transfer agent and procedures adopted pursuant to custodian; (viii) be responsible for compliance by the Fund with U.S. federal, state and other applicable laws and regulations, including Rule 38a-1 23c-3 under the 1940 Investment Company Act of 1940, as amended (the “Compliance Manual1940 Act”); and (viiiix) other policiespay the salaries, procedures fees and directives adopted from time to time by the Board expenses of such of the Company.
(d) The AdviserFund’s trustees, at its expenseofficers or employees who are trustees, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees officers or employees of any personnel required for the Adviser to faithfully perform or any of its duties under this Agreement; affiliates, except that the Fund will bear travel expenses or an appropriate portion thereof of trustees and (ii) furnish administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth herein. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name officers of the Fund who are trustees, officers or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all employees of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In no instance will Fund securities be purchased from or sold to the Adviser, or any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities that such expenses relate to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation attendance at meetings of the securities so purchased Board of Trustees or sold, as well as any committees thereof. The Adviser may delegate any of the expenses incurred in foregoing responsibilities to a third party with the transaction, will be consent of the Fund. The Fund acknowledges that the Adviser makes no warranty that any investments made by the Adviser hereunder will not depreciate in the manner which the Adviser considers value or at any time not be affected by adverse tax consequences, nor does it give any warranty as to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance or profitability of their duties with respect to any of their other clients that may differ from advice given, the assets or the timing success of any investment strategy recommended or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed used by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 2 contracts
Samples: Investment Advisory Agreement (Blackstone / GSO Floating Rate Enhanced Income Fund), Investment Advisory Agreement (Blackstone / GSO Floating Rate Enhanced Income Fund)
APPOINTMENT OF ADVISER. The Company Adviser hereby appoints undertakes and agrees, upon the Adviser terms and conditions herein set forth, to act provide overall investment advisory services for the Fund and in connection therewith to, in accordance with the Fund’s investment objective, policies and restrictions as an investment adviser in effect from time to time:
(a) determining the composition of the Fund’s portfolio, the nature and timing of the changes to the FundsFund’s portfolio and the manner of implementing such changes in accordance with the Fund’s investment objective, subject policies and restrictions;
(b) identifying investment opportunities and making investment decisions for the Fund, including negotiating the terms of investments in, and dispositions of, portfolio securities and other instruments on the Fund’s behalf;
(c) monitoring the Fund’s investments;
(d) performing due diligence on prospective portfolio companies;
(e) exercising voting rights in respect of portfolio securities and other investments for the Fund;
(f) serving on, and exercising observer rights for, boards of directors and similar committees of the Fund’s portfolio companies;
(g) negotiating, obtaining and managing financing facilities and other forms of leverage; and
(h) providing the Fund with such other investment advisory and related services as the Fund may, from time to time, reasonably require for the supervision and oversight investment of capital, which may include, without limitation:
(i) making, in consultation with the Fund’s board of trustees (the “Board of Trustees”), investment strategy decisions for the Fund;
(ii) reasonably assisting the Board of Trustees (and the “Board”) Fund’s other service providers, as Valuation Designee, with the valuation of the CompanyFund’s investments;
(iii) directing investment professionals of the Adviser or non-investment professionals of the Administrator (as defined below) to provide managerial assistance to portfolio companies of the Fund as requested by the Fund, from time to time; and
(iv) exercising voting rights in respect of the Fund’s portfolio securities and other investments.
(v) The Adviser shall, upon request by an official or agency administering the securities laws of a state (a “State Administrator”), submit to such State Administrator the reports and statements required to be distributed to the Fund’s shareholders pursuant to this Agreement, any registration statement filed with the SEC and applicable federal and state law.
(vi) The Adviser has a fiduciary responsibility and duty to the Fund for the period safekeeping and on use of all the terms set forth funds and assets of the Fund, whether or not in this Agreementthe Adviser’s immediate possession or control. The Adviser accepts shall not employ, or permit another to employ, such appointment and agrees to render the services herein set forth, funds or assets except for the compensation herein specified in Schedule A.
(a) exclusive benefit of the Fund. The Adviser shall not contract away any fiduciary obligation owed by the Adviser to the Fund’s shareholders under common law. The Board of Trustees has designated the Adviser as the “Valuation Designee” to determine the valuation of the Fund’s investments. Subject to the supervision of the Board of Trustees, the Adviser shall have the power and consistent with authority on behalf of the Fund to effectuate its fiduciary duties investment decisions for the Fund, including the execution and delivery of all documents relating to each the Fund’s investments, the placing of orders for other purchase or sale transactions on behalf of the Fund and causing the Fund to pay investment-related expenses. In the event that the Fund determines to acquire debt financing, the Adviser will manage arrange for such financing on the investment operations and determine Fund’s behalf. If it is necessary or appropriate for the composition Adviser to make investments on behalf of the portfolio Fund through a special purpose vehicle, the Adviser shall have authority to create or arrange for the creation of each Fund, including the purchase, retention such special purpose vehicle and disposition of the securities and other instruments held by the Funds, to make such investments through such special purpose vehicle (in accordance with the terms Investment Company Act of this Agreement1940, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA as amended (the “Prospectus and SAI1940 Act”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures). Subject to the foregoing, the Adviser will determine the fair value prior approval of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent majority of the Adviser for each security or other investment/asset in each Fund for which market prices Board of Trustees, including a majority of the Board of Trustees who are not readily available;
(vii) provide any and all material performance information“interested persons” of the Fund and, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed extent required by the Adviser in managing 1940 Act and the Funds that may be reasonably necessaryrules and regulations thereunder, under subject to any applicable laws, to allow the Funds guidance or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives interpretation of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to or its staff, by the Advisershareholders of the Fund, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Actapplicable, the Advisers ActAdviser may, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board time, delegate to a sub-adviser or other service provider any of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its ’s duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and the management of all equipment necessary for the efficient conduct or a portion of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth hereinassets being managed. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures acknowledges that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In makes no instance will Fund securities be purchased from or sold to the Adviser, or warranty that any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be investments made by the Adviser hereunder will not depreciate in the manner which the Adviser considers value or at any time not be affected by adverse tax consequences, nor does it give any warranty as to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance or profitability of their duties with respect to any of their other clients that may differ from advice given, the assets or the timing success of any investment strategy recommended or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed used by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 2 contracts
Samples: Investment Advisory Agreement (T. Rowe Price OHA Select Private Credit Fund), Investment Advisory Agreement (T. Rowe Price OHA Select Private Credit Fund)
APPOINTMENT OF ADVISER. The Company Adviser hereby appoints undertakes and agrees, upon the Adviser terms and conditions herein set forth, to act provide overall investment advisory services for the Fund and in connection therewith to, in accordance with the Fund’s investment objectives, policies and restrictions as an investment adviser in effect from time to time:
(i) determining the composition of the Fund’s portfolio, the nature and timing of the changes to the FundsFund’s portfolio and the manner of implementing such changes in accordance with the Fund’s investment objective, subject policies and restrictions;
(ii) identifying investment opportunities and making investment decisions for the Fund, including negotiating the terms of investments in, and dispositions of, portfolio securities and other instruments on the Fund’s behalf;
(iii) monitoring the Fund’s investments;
(iv) performing due diligence on prospective portfolio companies;
(v) exercising voting rights in respect of portfolio securities and other investments for the Fund;
(vi) serving on, and exercising observer rights for, boards of directors and similar committees of the Fund’s portfolio companies;
(vii) negotiating, obtaining and managing financing facilities and other forms of leverage; and
(viii) providing the Fund with such other investment advisory and related services as the Fund may, from time to time, reasonably require for the supervision and oversight investment of capital, which may include, without limitation:
a. making, in consultation with the Fund’s board of trustees (the “Board of Trustees”), investment strategy decisions for the Fund;
b. reasonably assisting the Board of Trustees (and the “Board”) Fund’s other service providers with the valuation of the CompanyFund’s assets;
c. directing investment professionals of the Adviser or non-investment professionals of the Administrator (as defined below) to provide managerial assistance to portfolio companies of the Fund as requested by the Fund, for from time to time; and
d. exercising voting rights in respect of the period Fund’s portfolio securities and on the terms set forth in this Agreementother investments. The Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein specified in Schedule A.
(a) Subject to the supervision of the Board of Trustees, the Adviser shall have the power and consistent with authority on behalf of the Fund to effectuate its fiduciary duties investment decisions for the Fund, including the execution and delivery of all documents relating to each the Fund’s investments, the placing of orders for other purchase or sale transactions on behalf of the Fund and causing the Fund to pay investment-related expenses. In the event that the Fund determines to acquire debt financing, the Adviser will manage arrange for such financing on the investment operations and determine Fund’s behalf. If it is necessary or appropriate for the composition Adviser to make investments on behalf of the portfolio Fund through a special purpose vehicle, the Adviser shall have authority to create or arrange for the creation of each Fund, including the purchase, retention such special purpose vehicle and disposition of the securities and other instruments held by the Funds, to make such investments through such special purpose vehicle (in accordance with the terms Investment Company Act of this Agreement1940, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA as amended (the “Prospectus and SAI1940 Act”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures). Subject to the foregoing, the Adviser will determine the fair value prior approval of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent majority of the Adviser for each security or other investment/asset in each Fund for which market prices Board of Trustees, including a majority of the Board of Trustees who are not readily available;
(vii) provide any and all material performance information“interested persons” of the Fund and, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed extent required by the Adviser in managing 1940 Act and the Funds that may be reasonably necessaryrules and regulations thereunder, under subject to any applicable laws, to allow the Funds guidance or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives interpretation of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to or its staff, by the Advisershareholders of the Fund, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Actapplicable, the Advisers ActAdviser may, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board time, delegate to a sub-adviser or other service provider any of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its ’s duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and the management of all equipment necessary for the efficient conduct or a portion of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth hereinassets being managed. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures acknowledges that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In makes no instance will Fund securities be purchased from or sold to the Adviser, or warranty that any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be investments made by the Adviser hereunder will not depreciate in the manner which the Adviser considers value or at any time not be affected by adverse tax consequences, nor does it give any warranty as to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance or profitability of their duties with respect to any of their other clients that may differ from advice given, the assets or the timing success of any investment strategy recommended or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed used by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 2 contracts
Samples: Investment Advisory Agreement (Wellings Real Estate Income Fund), Investment Advisory Agreement (Wellings Real Estate Income Fund)
APPOINTMENT OF ADVISER. The Company Adviser hereby appoints undertakes and agrees, upon the Adviser terms and conditions herein set forth, to act provide overall investment advisory services for the Fund and in connection therewith to, in accordance with the Fund’s investment objective, policies and restrictions as an investment adviser in effect from time to time:
(a) determining the composition of the Fund’s portfolio, the nature and timing of the changes to the FundsFund’s portfolio and the manner of implementing such changes in accordance with the Fund’s investment objective, subject policies and restrictions;
(b) identifying investment opportunities and making investment decisions for the Fund, including negotiating the terms of investments in, and dispositions of, portfolio securities and other instruments on the Fund’s behalf;
(c) monitoring the Fund’s investments;
(d) performing due diligence on prospective portfolio companies;
(e) exercising voting rights in respect of portfolio securities and other investments for the Fund;
(f) serving on, and exercising observer rights for, boards of directors and similar committees of the Fund’s portfolio companies;
(g) negotiating, obtaining and managing financing facilities and other forms of leverage; and
(h) providing the Fund with such other investment advisory and related services as the Fund may, from time to time, reasonably require for the supervision and oversight investment of capital, which may include, without limitation:
(i) making, in consultation with the Fund’s board of trustees (the “Board of Trustees”), investment strategy decisions for the Fund;
(ii) reasonably assisting the Board of Trustees (and the “Board”) Fund’s other service providers with the valuation of the CompanyFund’s assets or, if so designated by the Board of Trustees, performing fair value determinations subject to the oversight of the Board of Trustees; and
(iii) directing investment professionals of the Adviser or non-investment professionals of the Administrator (as defined below) to provide, or arranging for the period provision of, managerial assistance to portfolio companies of the Fund as requested by the Fund, from time to time.
(iv) The Adviser shall, upon request by an official or agency administering the securities laws of a state (a “State Administrator”), submit to such State Administrator the reports and on statements required to be distributed to the terms set forth in Fund’s shareholders pursuant to this Agreement, any registration statement filed with the SEC and applicable federal and state law.
(v) The Adviser has a fiduciary responsibility and duty to the Fund for the safekeeping and use of all the funds and assets of the Fund, whether or not in the Adviser’s immediate possession or control. The Adviser accepts shall not employ, or permit another to employ, such appointment and agrees to render the services herein set forth, funds or assets except for the compensation herein specified in Schedule A.
(a) exclusive benefit of the Fund. The Adviser shall not contract away any fiduciary obligation owed by the Adviser to the Fund’s shareholders under common law. Subject to the supervision of the Board of Trustees, the Adviser shall have the power and consistent with authority on behalf of the Fund to effectuate its fiduciary duties investment decisions for the Fund, including the execution and delivery of all documents relating to each the Fund’s investments, the placing of orders for other purchase or sale transactions on behalf of the Fund and causing the Fund to pay investment-related expenses. In the event that the Fund determines to acquire debt financing, the Adviser will manage arrange for such financing on the investment operations and determine Fund’s behalf. If it is necessary or appropriate for the composition Adviser to make investments on behalf of the portfolio Fund through a special purpose vehicle, the Adviser shall have authority to create or arrange for the creation of each Fund, including the purchase, retention such special purpose vehicle and disposition of the securities and other instruments held by the Funds, to make such investments through such special purpose vehicle (in accordance with the terms Investment Company Act of this Agreement1940, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA as amended (the “Prospectus and SAI1940 Act”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures). Subject to the foregoing, the Adviser will determine the fair value prior approval of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent majority of the Adviser for each security or other investment/asset in each Fund for which market prices Board of Trustees, including a majority of the Board of Trustees who are not readily available;
(vii) provide any and all material performance information“interested persons” of the Fund and, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed extent required by the Adviser in managing 1940 Act and the Funds that may be reasonably necessaryrules and regulations thereunder, under subject to any applicable laws, to allow the Funds guidance or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives interpretation of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to or its staff, by the Advisershareholders of the Fund, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Actapplicable, the Advisers ActAdviser may, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board time, delegate to a sub-adviser or other service provider any of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its ’s duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and the management of all equipment necessary for the efficient conduct or a portion of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth hereinassets being managed. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures acknowledges that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In makes no instance will Fund securities be purchased from or sold to the Adviser, or warranty that any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be investments made by the Adviser hereunder will not depreciate in the manner which the Adviser considers value or at any time not be affected by adverse tax consequences, nor does it give any warranty as to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance or profitability of their duties with respect to any of their other clients that may differ from advice given, the assets or the timing success of any investment strategy recommended or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed used by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 2 contracts
Samples: Investment Advisory Agreement (Fidelity Private Credit Fund), Investment Advisory Agreement (Fidelity Private Credit Fund)
APPOINTMENT OF ADVISER. The Company Adviser hereby appoints the Adviser to act as an investment adviser to the Fundsundertakes and agrees, subject to the supervision and oversight the Board of Trustees (the “Board”) of the Company, for the period and on upon the terms set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services conditions herein set forth, to provide overall investment advisory services for the compensation herein specified Fund and in Schedule A.connection therewith to, in accordance with the Fund’s investment objective, policies and restrictions as in effect from time to time:
(a) determining the composition of the Fund’s portfolio, the nature and timing of the changes to the Fund’s portfolio and the manner of implementing such changes in accordance with the Fund’s investment objective, policies and restrictions;
(b) identifying investment opportunities and making investment decisions for the Fund, including negotiating the terms of investments in, and dispositions of, portfolio securities and other instruments on the Fund’s behalf;
(c) monitoring the Fund’s investments;
(d) performing due diligence on prospective portfolio companies;
(e) exercising voting rights in respect of portfolio securities and other investments for the Fund;
(f) serving on, and exercising observer rights for, boards of directors and similar committees of the Fund’s portfolio companies;
(g) negotiating, obtaining and managing financing facilities and other forms of leverage; and
(h) providing the Fund with such other investment advisory and related services as the Fund may, from time to time, reasonably require for the investment of capital, which may include, without limitation:
(i) making, in consultation with the Fund’s board of trustees (the “Board of Trustees”), investment strategy decisions for the Fund;
(ii) serving as the Fund’s valuation designee pursuant to Rule 2a-5 under the Investment Company Act of 1940, as amended (the “1940 Act”) and reasonably assisting the Fund’s other service providers with the valuation of the Fund’s assets;
(iii) directing investment professionals of the Adviser or non-investment professionals of HPS Investment Partners, LLC (“HPS”), in its capacity as the Fund’s administrator (in such capacity, the “Administrator”), to provide managerial assistance to portfolio companies of the Fund as requested by the Fund, from time to time; and
(iv) exercising voting rights in respect of the Fund’s portfolio securities and other investments. Subject to the supervision of the Board of Trustees, the Adviser shall have the power and consistent with authority on behalf of the Fund to effectuate its fiduciary duties investment decisions for the Fund, including the execution and delivery of all documents relating to each the Fund’s investments, the placing of orders for other purchase or sale transactions on behalf of the Fund and causing the Fund to pay investment-related expenses. In the event that the Fund determines to acquire debt financing, the Adviser will manage arrange for such financing on the investment operations and determine Fund’s behalf. If it is necessary or appropriate for the composition Adviser to make investments on behalf of the portfolio Fund through a special purpose vehicle, the Adviser shall have authority to create or arrange for the creation of each Fund, including the purchase, retention such special purpose vehicle and disposition of the securities and other instruments held by the Funds, to make such investments through such special purpose vehicle (in accordance with the terms of this Agreement, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA (the “Prospectus and SAI”1940 Act), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value prior approval of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent majority of the Adviser for each security or other investment/asset in each Fund for which market prices Board of Trustees, including a majority of the Board of Trustees who are not readily available;
(vii) provide any and all material performance information“interested persons” of the Fund and, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed extent required by the Adviser in managing 1940 Act and the Funds that may be reasonably necessaryrules and regulations thereunder, under subject to any applicable laws, to allow the Funds guidance or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives interpretation of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to or its staff, by the Advisershareholders of the Fund, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Actapplicable, the Advisers ActAdviser may, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board time, delegate to a sub-adviser or other service provider any of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its ’s duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and the management of all equipment necessary for the efficient conduct or a portion of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth hereinassets being managed. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures acknowledges that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In makes no instance will Fund securities be purchased from or sold to the Adviser, or warranty that any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be investments made by the Adviser hereunder will not depreciate in the manner which the Adviser considers value or at any time not be affected by adverse tax consequences, nor does it give any warranty as to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance or profitability of their duties with respect to any of their other clients that may differ from advice given, the assets or the timing success of any investment strategy recommended or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed used by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 2 contracts
Samples: Investment Advisory Agreement (HCX Series SLF Fund), Investment Advisory Agreement (HCX Series Direct Lending Fund)
APPOINTMENT OF ADVISER. The Company Adviser hereby appoints undertakes and agrees, upon the Adviser terms and conditions herein set forth, to act provide overall investment advisory services for the Fund and in connection therewith to, in accordance with the Fund’s investment objective, policies and restrictions as an investment adviser in effect from time to time:
(a) determining the composition of the Fund’s portfolio, the nature and timing of the changes to the FundsFund’s portfolio and the manner of implementing such changes in accordance with the Fund’s investment objective, subject policies and restrictions;
(b) identifying investment opportunities and making investment decisions for the Fund, including negotiating the terms of investments in, and dispositions of, portfolio securities and other instruments on the Fund’s behalf;
(c) monitoring the Fund’s investments;
(d) performing due diligence on prospective portfolio companies;
(e) exercising voting rights in respect of portfolio securities and other investments for the Fund;
(f) serving on, and exercising observer rights for, boards of directors and similar committees of the Fund’s portfolio companies;
(g) negotiating, obtaining and managing financing facilities and other forms of leverage; and
(h) providing the Fund with such other investment advisory and related services as the Fund may, from time to time, reasonably require for the supervision and oversight investment of capital, which may include, without limitation:
(i) making, in consultation with the Fund’s board of trustees (the “Board of Trustees”), investment strategy decisions for the Fund;
(ii) reasonably assisting the Board of Trustees (and the “Board”) Fund’s other service providers with the valuation of the CompanyFund’s assets or, if so designated by the Board of Trustees, performing fair value determinations subject to the oversight of the Board of Trustees; and
(iii) directing investment professionals of the Adviser or non-investment professionals of the Administrator (as defined below) to provide, or arranging for the period provision of, managerial assistance to portfolio companies of the Fund as requested by the Fund, from time to time.
(vi) shall apply.
(iv) The Adviser shall, upon request by an official or agency administering the securities laws of a state (a “State Administrator”), submit to such State Administrator the reports and on statements required to be distributed to the terms set forth in Fund’s shareholders pursuant to this Agreement, any registration statement filed with the SEC and applicable federal and state law.
(v) The Adviser has a fiduciary responsibility and duty to the Fund for the safekeeping and use of all the funds and assets of the Fund, whether or not in the Adviser’s immediate possession or control. The Adviser accepts shall not employ, or permit another to employ, such appointment and agrees to render the services herein set forth, funds or assets except for the compensation herein specified in Schedule A.
(a) exclusive benefit of the Fund. The Adviser shall not contract away any fiduciary obligation owed by the Adviser to the Fund’s shareholders under common law. Subject to the supervision of the Board of Trustees, the Adviser shall have the power and consistent with authority on behalf of the Fund to effectuate its fiduciary duties investment decisions for the Fund, including the execution and delivery of all documents relating to each the Fund’s investments, the placing of orders for other purchase or sale transactions on behalf of the Fund and causing the Fund to pay investment-related expenses. In the event that the Fund determines to acquire debt financing, the Adviser will manage arrange for such financing on the investment operations and determine Fund’s behalf. If it is necessary or appropriate for the composition Adviser to make investments on behalf of the portfolio Fund through a special purpose vehicle, the Adviser shall have authority to create or arrange for the creation of each Fund, including the purchase, retention such special purpose vehicle and disposition of the securities and other instruments held by the Funds, to make such investments through such special purpose vehicle (in accordance with the terms Investment Company Act of this Agreement1940, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA as amended (the “Prospectus and SAI1940 Act”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures). Subject to the foregoing, the Adviser will determine the fair value prior approval of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent majority of the Adviser for each security or other investment/asset in each Fund for which market prices Board of Trustees, including a majority of the Board of Trustees who are not readily available;
(vii) provide any and all material performance information“interested persons” of the Fund and, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed extent required by the Adviser in managing 1940 Act and the Funds that may be reasonably necessaryrules and regulations thereunder, under subject to any applicable laws, to allow the Funds guidance or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives interpretation of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to or its staff, by the Advisershareholders of the Fund, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Actapplicable, the Advisers ActAdviser may, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board time, delegate to a sub-adviser or other service provider any of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its ’s duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and the management of all equipment necessary for the efficient conduct or a portion of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth hereinassets being managed. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures acknowledges that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In makes no instance will Fund securities be purchased from or sold to the Adviser, or warranty that any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be investments made by the Adviser hereunder will not depreciate in the manner which the Adviser considers value or at any time not be affected by adverse tax consequences, nor does it give any warranty as to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance or profitability of their duties with respect to any of their other clients that may differ from advice given, the assets or the timing success of any investment strategy recommended or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed used by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 1 contract
Samples: Investment Advisory Agreement (Fidelity Private Credit Fund)
APPOINTMENT OF ADVISER. The Company Adviser hereby appoints the Adviser to act as an investment adviser to the Fundsundertakes and agrees, subject to the supervision and oversight the Board of Trustees (the “Board”) of the Company, for the period and on upon the terms set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services conditions herein set forth, to provide overall investment advisory services for the compensation herein specified Fund and in Schedule A.
(a) Subject to the supervision of the Board and consistent with its fiduciary duties to each Fund, the Adviser will manage the investment operations and determine the composition of the portfolio of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Fundsconnection therewith to, in accordance with the terms of this AgreementFund’s investment objective, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained restrictions as in the Company's Registration Statement on Form N-lA (the “Prospectus and SAI”), as they may be amended or supplemented effect from time to time. As part of the services it will provide hereunder, the Adviser will:
(ia) furnish continuously an determining the composition of the Fund’s portfolio, the nature and timing of the changes to the Fund’s portfolio and the manner of implementing such changes in accordance with the Fund’s investment program objective, policies and restrictions;
(b) identifying investment opportunities and making investment decisions for each the Fund, including negotiating the terms of investments in, and dispositions of, portfolio securities and other instruments on the Fund’s behalf;
(c) monitoring the Fund’s investments;
(d) performing due diligence on prospective portfolio companies;
(e) exercising voting rights in respect of portfolio securities and other investments for the Fund;
(iif) designate the identity serving on, and weighting exercising observer rights for, boards of directors and similar committees of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund’s portfolio companies;
(iiig) provide supervision negotiating, obtaining and managing financing facilities and other forms of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;leverage; and
(ivh) make changes on behalf of providing the Company in Fund with such other investment advisory and related services as the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the BoardFund may, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, reasonably require for the Adviser will promptly notify investment of capital. In the Company's fund accounting agent of securities and instruments in a event that the Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject determines to the foregoingacquire debt financing, the Adviser will determine the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for such financing on the provision of valuation information or a price(s) from a party(ies) independent of the Adviser for each security or other investment/asset in each Fund for which market prices are not readily available;
(vii) provide any and all material performance information, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed by the Adviser in managing the Funds that may be reasonably necessary, under applicable laws, to allow the Funds or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of informationFund’s behalf. To carry out the duties and responsibilities provided hereunder, the Adviser If it is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to the Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required appropriate for the Adviser to faithfully perform its make investments on behalf of the Fund through a special purpose vehicle, the Adviser shall have authority to create or arrange for the creation of such special purpose vehicle and to make such investments through such special purpose vehicle. Subject to applicable law, the Adviser may, from time to time, delegate to a sub-adviser or other service provider any of the Adviser’s duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and the management of all equipment necessary for the efficient conduct or a portion of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth hereinassets being managed. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures acknowledges that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In makes no instance will Fund securities be purchased from or sold to the Adviser, or warranty that any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be investments made by the Adviser hereunder will not depreciate in the manner which the Adviser considers value or at any time not be affected by adverse tax consequences, nor does it give any warranty as to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance or profitability of their duties with respect to any of their other clients that may differ from advice given, the assets or the timing success of any investment strategy recommended or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed used by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 1 contract
Samples: Investment Advisory Agreement (T. Rowe Price OHA Flexible Credit Income Fund)
APPOINTMENT OF ADVISER. The Company Adviser hereby appoints undertakes and agrees, upon the Adviser terms and conditions herein set forth, to act provide overall investment advisory services for the Fund and in connection therewith to, in accordance with the Fund’s investment objective, policies and restrictions as an investment adviser in effect from time to time:
(a) determining the composition of the Fund’s portfolio, the nature and timing of the changes to the FundsFund’s portfolio and the manner of implementing such changes in accordance with the Fund’s investment objective, subject policies and restrictions;
(b) identifying investment opportunities and making investment decisions for the Fund, including negotiating the terms of investments in, and dispositions of, portfolio securities and other instruments on the Fund’s behalf;
(c) monitoring the Fund’s investments;
(d) performing due diligence on prospective portfolio companies;
(e) exercising voting rights in respect of portfolio securities and other investments for the Fund;
(f) serving on, and exercising observer rights for, boards of directors and similar committees of the Fund’s portfolio companies;
(g) negotiating, obtaining and managing financing facilities and other forms of leverage; and
(h) providing the Fund with such other investment advisory and related services as the Fund may, from time to time, reasonably require for the supervision and oversight investment of capital, which may include, without limitation:
(i) making, in consultation with the Board Fund’s board of Trustees directors (the “Board”), investment strategy decisions for the Fund;
(ii) reasonably assisting the Board and the Fund’s other service providers with the valuation of the CompanyFund’s assets or, if so designated by the Board, performing fair value determinations subject to the oversight of the Board; and
(iii) directing investment professionals of the Adviser or non-investment professionals of the Administrator (as defined below) to provide, or arranging for the period and on provision of, managerial assistance to portfolio companies of the terms set forth in this AgreementFund as requested by the Fund, from time to time. The Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein specified in Schedule A.
(a) Subject to the supervision of the Board Board, the Adviser shall have the power and consistent with authority on behalf of the Fund to effectuate its fiduciary duties investment decisions for the Fund, including the execution and delivery of all documents relating to each the Fund’s investments, the placing of orders for other purchase or sale transactions on behalf of the Fund and causing the Fund to pay investment-related expenses. In the event that the Fund determines to acquire debt financing, the Adviser will manage arrange for such financing on the investment operations and determine Fund’s behalf. If it is necessary or appropriate for the composition Adviser to make investments on behalf of the portfolio Fund through a special purpose vehicle, the Adviser shall have authority to create or arrange for the creation of each Fund, including the purchase, retention such special purpose vehicle and disposition of the securities and other instruments held by the Funds, to make such investments through such special purpose vehicle (in accordance with the terms Investment Company Act of this Agreement1940, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA as amended (the “Prospectus and SAI1940 Act”)). Subject to the prior approval of a majority of the Board, including a majority of the Board who are not “interested persons” of the Fund (“Independent Directors”) and, to the extent required by the 1940 Act and the rules and regulations thereunder, subject to any applicable guidance or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or its staff, by the shareholders of the Fund, as they may be amended or supplemented from time to time. As part of the services it will provide hereunderapplicable, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cashmay, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in delegate to a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value of all securities and sub-adviser or other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent service provider any of the Adviser for each security or other investment/asset in each Fund for which market prices are not readily available;
(vii) provide any and all material performance information, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed by the Adviser in managing the Funds that may be reasonably necessary, under applicable laws, to allow the Funds or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to the Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its ’s duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and the management of all equipment necessary for the efficient conduct or a portion of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth hereinassets being managed. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures acknowledges that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In makes no instance will Fund securities be purchased from or sold to the Adviser, or warranty that any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be investments made by the Adviser hereunder will not depreciate in the manner which the Adviser considers value or at any time not be affected by adverse tax consequences, nor does it give any warranty as to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance or profitability of their duties with respect to any of their other clients that may differ from advice given, the assets or the timing success of any investment strategy recommended or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed used by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 1 contract
Samples: Investment Advisory Agreement (Fidelity Private Credit Central Fund LLC)
APPOINTMENT OF ADVISER. The Company hereby appoints the Adviser to act as an investment adviser to the Funds, subject to the supervision and oversight the Board of Trustees (the “Board”) of the Company, for the period and on the terms set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein specified in Schedule A.
(a) Subject to the supervision of the Board and consistent with its fiduciary duties to each Fund, the Adviser will manage the investment operations and determine the composition of the portfolio of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Funds, in accordance with the terms of this Agreement, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA (the “Prospectus and SAI”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Adviser for each security or other investment/asset in each Fund for which market prices are not readily available;
(vii) provide any and all material performance information, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed by the Adviser in managing the Funds that may be reasonably necessary, under applicable laws, to allow the Funds or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives of the Company, keep all such persons fully personsfully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s 's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to the Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth herein. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In no instance will Fund securities be purchased from or sold to the Adviser, or any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Adviser in the manner which the Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 1 contract
APPOINTMENT OF ADVISER. The Company Adviser hereby appoints the Adviser to act as an investment adviser to the Fundsundertakes and agrees, subject to the supervision and oversight the Board of Trustees (the “Board”) of the Company, for the period and on upon the terms set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services conditions herein set forth, to provide overall investment advisory services for the compensation herein specified Fund and in Schedule A.connection therewith to, in accordance with the Fund’s investment objective, policies and restrictions as in effect from time to time:
(a) determining the composition of the Fund’s portfolio, the nature and timing of the changes to the Fund’s portfolio and the manner of implementing such changes in accordance with the Fund’s investment objective, policies and restrictions;
(b) identifying investment opportunities and making investment decisions for the Fund, including negotiating the terms of investments in, and dispositions of, portfolio securities and other instruments on the Fund’s behalf;
(c) monitoring the Fund’s investments;
(d) performing due diligence on prospective portfolio companies;
(e) exercising voting rights in respect of portfolio securities and other investments for the Fund;
(f) serving on, and exercising observer rights for, boards of directors and similar committees of the Fund’s portfolio companies;
(g) negotiating, obtaining and managing financing facilities and other forms of leverage; and
(h) providing the Fund with such other investment advisory and related services as the Fund may, from time to time, reasonably require for the investment of capital, which may include, without limitation:
(i) making, in consultation with the Fund’s board of trustees (the “Board of Trustees”), investment strategy decisions for the Fund;
(ii) serving as the Fund’s valuation designee pursuant to Rule 2a-5 under the Investment Company Act of 1940, as amended (the “1940 Act”) and reasonably assisting the Fund’s other service providers with the valuation of the Fund’s assets;
(iii) directing investment professionals of the Adviser or non-investment professionals of the Administrator (as defined below) to provide managerial assistance to portfolio companies of the Fund as requested by the Fund, from time to time; and
(iv) exercising voting rights in respect of the Fund’s portfolio securities and other investments.
(v) The Adviser shall, upon request by an official or agency administering the securities laws of a state (a “State Administrator”), submit to such State Administrator the reports and statements required to be distributed to the Fund’s shareholders pursuant to this Agreement, any registration statement filed with the SEC and applicable federal and state law.
(vi) The Adviser has a fiduciary responsibility and duty to the Fund for the safekeeping and use of all the funds and assets of the Fund, whether or not in the Adviser’s immediate possession or control. The Adviser shall not employ, or permit another to employ, such funds or assets except for the exclusive benefit of the Fund. The Adviser shall not contract away any fiduciary obligation owed by the Adviser to the Fund’s shareholders under common law. Subject to the supervision of the Board of Trustees, the Adviser shall have the power and consistent with authority on behalf of the Fund to effectuate its fiduciary duties investment decisions for the Fund, including the execution and delivery of all documents relating to each the Fund’s investments, the placing of orders for other purchase or sale transactions on behalf of the Fund and causing the Fund to pay investment-related expenses. In the event that the Fund determines to acquire debt financing, the Adviser will manage arrange for such financing on the investment operations and determine the composition of the portfolio of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Funds, in accordance with the terms of this Agreement, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA (the “Prospectus and SAI”), as they may be amended ’s behalf. If it is necessary or supplemented from time to time. As part of the services it will provide hereunder, appropriate for the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's make investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by Fund through a special purpose vehicle, the Adviser pursuant shall have authority to this Agreement and create or arrange for the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports creation of such additional information concerning the same as may reasonably be requested from time special purpose vehicle and to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
make such investments through such special purpose vehicle (vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures1940 Act). Subject to the foregoing, the Adviser will determine the fair value prior approval of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent majority of the Adviser for each security or other investment/asset in each Fund for which market prices Board of Trustees, including a majority of the Board of Trustees who are not readily available;
(vii) provide any and all material performance information“interested persons” of the Fund and, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed extent required by the Adviser in managing 1940 Act and the Funds that may be reasonably necessaryrules and regulations thereunder, under subject to any applicable laws, to allow the Funds guidance or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives interpretation of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to or its staff, by the Advisershareholders of the Fund, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Actapplicable, the Advisers ActAdviser may, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board time, delegate to a sub-adviser or other service provider any of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its ’s duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and the management of all equipment necessary for the efficient conduct or a portion of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth hereinassets being managed. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures acknowledges that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In makes no instance will Fund securities be purchased from or sold to the Adviser, or warranty that any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be investments made by the Adviser hereunder will not depreciate in the manner which the Adviser considers value or at any time not be affected by adverse tax consequences, nor does it give any warranty as to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance or profitability of their duties with respect to any of their other clients that may differ from advice given, the assets or the timing success of any investment strategy recommended or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed used by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 1 contract
Samples: Investment Advisory Agreement (Bain Capital Private Credit)
APPOINTMENT OF ADVISER. The Company hereby appoints the Adviser to act as an investment adviser to the Funds, subject to the supervision and oversight the Board of Trustees (the “"Board”") of the Company, for the period and on the terms set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein specified in Schedule A.B.
(a) Subject to the supervision of the Board and consistent with its fiduciary duties to each Fund, the Adviser will manage the investment operations and determine the composition of the portfolio of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Funds, in accordance with the terms of this Agreement, each Fund' s 's investment objective and policies and each Fund' s 's then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA I A (the “"Prospectus and SAI”"), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:.
(i) furnish continuously an investment program for each Fund;
(ii) ; designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) ; provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) ; make changes on behalf of the Company in the investments for each Fund;
(v) ; maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value of all securities and other investments/assets investments./assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Adviser for each security or other investment/asset in each Fund for which market prices are not readily available;
(vii) provide any and all material performance information, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed by the Adviser in managing the Funds that may be reasonably necessary, under applicable laws, to allow the Funds or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s 's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“"Declaration of Trust”"); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“"By-Laws”"); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“"SEC”") and delivered to the Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “"Compliance Manual”"); and (viii) other policies, procedures and directives adopted from time to time by the Board of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth herein. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “"best execution,” " considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In no instance will Fund securities be purchased from or sold to the Adviser, or any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “"soft-dollar” " transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“"Exchange Act”"), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Adviser in the manner which the Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-non- distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 1 contract
APPOINTMENT OF ADVISER. The Company Adviser hereby appoints the Adviser to act as an investment adviser to the Fundsundertakes and agrees, subject to the supervision and oversight the Board of Trustees (the “Board”) of the Company, for the period and on upon the terms set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services conditions herein set forth, to provide overall investment advisory services for the compensation herein specified Fund and in Schedule A.connection therewith to, in accordance with the Fund’s investment objective, policies and restrictions as in effect from time to time:
(a) determining the composition of the Fund’s portfolio, the nature and timing of the changes to the Fund’s portfolio and the manner of implementing such changes in accordance with the Fund’s investment objective, policies and restrictions;
(b) identifying investment opportunities and making investment decisions for the Fund, including negotiating the terms of investments in, and dispositions of, portfolio securities and other instruments on the Fund’s behalf;
(c) monitoring the Fund’s investments;
(d) performing due diligence on prospective portfolio companies;
(e) exercising voting rights in respect of portfolio securities and other investments for the Fund;
(f) serving on, and exercising observer rights for, boards of directors and similar committees of the Fund’s portfolio companies;
(g) negotiating, obtaining and managing financing facilities and other forms of leverage; and
(h) providing the Fund with such other investment advisory and related services as the Fund may, from time to time, reasonably require for the investment of capital, which may include, without limitation:
(i) making, in consultation with the Fund’s board of trustees (the “Board of Trustees”), investment strategy decisions for the Fund;
(ii) serving as the Fund’s valuation designee pursuant to Rule 2a-5 under the Investment Company Act of 1940, as amended (the “1940 Act”) and reasonably assisting the Fund’s other service providers with the valuation of the Fund’s assets;
(iii) directing investment professionals of the Adviser or non-investment professionals of HPS, in its capacity as the Fund’s administrator (in such capacity, the “Administrator”), to provide managerial assistance to portfolio companies of the Fund as requested by the Fund, from time to time; and
(iv) exercising voting rights in respect of the Fund’s portfolio securities and other investments.
(v) The Adviser shall, upon request by an official or agency administering the securities laws of a state (a “State Administrator”), submit to such State Administrator the reports and statements required to be distributed to the Fund’s shareholders pursuant to this Agreement, any registration statement filed with the SEC and applicable federal and state law. The Adviser has a fiduciary responsibility and duty to the Fund for the safekeeping and use of all the funds and assets of the Fund, whether or not in the Adviser’s immediate possession or control. The Adviser shall not employ, or permit another to employ, such funds or assets except for the exclusive benefit of the Fund. The Adviser shall not contract away any fiduciary obligation owed by the Adviser to the Fund’s shareholders under common law. Subject to the supervision of the Board of Trustees, the Adviser shall have the power and consistent with authority on behalf of the Fund to effectuate its fiduciary duties investment decisions for the Fund, including the execution and delivery of all documents relating to each the Fund’s investments, the placing of orders for other purchase or sale transactions on behalf of the Fund and causing the Fund to pay investment-related expenses. In the event that the Fund determines to acquire debt financing, the Adviser will manage arrange for such financing on the investment operations and determine Fund’s behalf. If it is necessary or appropriate for the composition Adviser to make investments on behalf of the portfolio Fund through a special purpose vehicle, the Adviser shall have authority to create or arrange for the creation of each Fund, including the purchase, retention such special purpose vehicle and disposition of the securities and other instruments held by the Funds, to make such investments through such special purpose vehicle (in accordance with the terms of this Agreement, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA (the “Prospectus and SAI”1940 Act), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value prior approval of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent majority of the Adviser for each security or other investment/asset in each Fund for which market prices Board of Trustees, including a majority of the Board of Trustees who are not readily available;
(vii) provide any and all material performance information“interested persons” of the Fund and, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed extent required by the Adviser in managing 1940 Act and the Funds that may be reasonably necessaryrules and regulations thereunder, under subject to any applicable laws, to allow the Funds guidance or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives interpretation of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to or its staff, by the Advisershareholders of the Fund, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Actapplicable, the Advisers ActAdviser may, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board time, delegate to a sub-adviser or other service provider any of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its ’s duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and the management of all equipment necessary for the efficient conduct or a portion of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth hereinassets being managed. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures acknowledges that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In makes no instance will Fund securities be purchased from or sold to the Adviser, or warranty that any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be investments made by the Adviser hereunder will not depreciate in the manner which the Adviser considers value or at any time not be affected by adverse tax consequences, nor does it give any warranty as to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance or profitability of their duties with respect to any of their other clients that may differ from advice given, the assets or the timing success of any investment strategy recommended or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed used by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 1 contract
Samples: Investment Advisory Agreement (HPS Corporate Lending Fund)
APPOINTMENT OF ADVISER. The Company hereby appoints the Adviser to act as an investment adviser to the Funds, subject to the supervision and oversight the Board of Trustees (the “Board”) of the Company, for the period and on the terms set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein specified in Schedule A.
(a) Subject to the supervision of the Board and consistent with its fiduciary duties to each Fund, the Adviser will manage the investment operations and determine the composition of the portfolio of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Funds, in accordance with the terms of this Agreement, each Fund' s 's investment objective and policies and each Fund' s 's then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA N-1A (the “Prospectus and SAI”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Adviser for each security or other investment/asset in each Fund for which market prices are not readily available;
(vii) provide any and all material performance information, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed by the Adviser in managing the Funds that may be reasonably necessary, under applicable laws, to allow the Funds or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to the Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth herein. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In no instance will Fund securities be purchased from or sold to the Adviser, or any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Adviser in the manner which the Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 1 contract
APPOINTMENT OF ADVISER. The Company hereby appoints the Adviser to act as an investment adviser to the Funds, subject to the supervision and oversight the Board of Trustees (the “"Board”") of the Company, for the period and on the terms set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein specified in Schedule A.
(a) Subject to the supervision of the Board and consistent with its fiduciary duties to each Fund, the Adviser will manage the investment operations and determine the composition of the portfolio of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Funds, in accordance with the terms of this Agreement, each Fund' s 's investment objective and policies and each Fund' s 's then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA N-1A (the “"Prospectus and SAI”"), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Adviser for each security or other investment/asset in each Fund for which market prices are not readily available;
(vii) provide any and all material performance information, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed by the Adviser in managing the Funds that may be reasonably necessary, under applicable laws, to allow the Funds or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s 's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“"Declaration of Trust”"); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“"By-Laws”"); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“"SEC”") and delivered to the Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “"Compliance Manual”"); and (viii) other policies, procedures and directives adopted from time to time by the Board of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth herein. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “"best execution,” " considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In no instance will Fund securities be purchased from or sold to the Adviser, or any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-"soft- dollar” " transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“"Exchange Act”"), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Adviser in the manner which the Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 1 contract
APPOINTMENT OF ADVISER. The Company hereby appoints the Adviser to act as an investment adviser to the Funds, subject to the supervision and oversight the Board of Trustees (the “Board”) of the Company, for the period and on the terms set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein specified in Schedule A.
(a) Subject to the supervision of the Board and consistent with its fiduciary duties to each Fund, the Adviser will manage the investment operations and determine the composition of the portfolio of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Funds, in accordance with the terms of this Agreement, each Fund' s 's investment objective and policies and each Fund' s 's then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA (the “Prospectus and SAI”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Adviser for each security or other investment/asset in each Fund for which market prices are not readily available;
(vii) provide any and all material performance information, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed by the Adviser in managing the Funds that may be reasonably necessary, under applicable laws, to allow the Funds or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to the Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth herein. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In no instance will Fund securities be purchased from or sold to the Adviser, or any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Adviser in the manner which the Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 1 contract
APPOINTMENT OF ADVISER. (a) The Company Fund hereby appoints employs the Adviser to act as an investment adviser to the Funds, subject to the supervision and oversight the Board of Trustees (the “Board”) of the Company, for the period and on the terms and conditions set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services herein set forthherein, for the compensation herein specified in Schedule A.
(a) Subject subject at all times to the supervision of the Board and consistent with its fiduciary duties to each of Directors of the Fund, the Adviser will manage the investment operations and determine the composition of the portfolio of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Funds, in accordance with the terms of this Agreement, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA (the “Prospectus and SAI”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser willto:
(i) furnish continuously an Act as the investment program for each Fund;
(ii) designate adviser and to manage the identity investment and weighting reinvestment of the securities assets of the Fund held outside of the Investment Plan (the “Non-Investment Plan Assets”) in accordance with the investment objectives and amount policies of cashthe Fund, if any) as set forth in the Fund’s Prospectus (as defined below). In acting as investment adviser for the Fund’s Non-Investment Plan Assets, the Adviser shall regularly provide the Fund with such investment research and advice as the Adviser may from time to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments time consider necessary and shall determine from time to time what investments or securities will shall be purchased, retained sold or sold by the Funds exchanged and what portion, if any, portion of the assets of each Fund will Fund’s Non-Investment Plan Assets shall be held uninvested;
(iv) make changes on behalf in the various securities in which it may invest, subject always to the restrictions of the Company in the investments for each Fund;
(v) maintain books ’s Articles of Incorporation and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the BoardBy-Laws, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent provisions of the Adviser for each security or other investment/asset in each Fund for which market prices are not readily available;
(vii) provide any 1940 Act and all material performance information, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have Fund’s investment objectives, policies, investment policies and strategies substantially similar to those employed by the Adviser in managing the Funds that may be reasonably necessary, under applicable laws, to allow the Funds or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trustinvestment limitations, as the same may be hereafter modified and/or amended from time to time are set forth in the prospectus (the “Declaration of TrustProspectus”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company Fund contained in its registration statement on Form N-2 filed with the Securities and Exchange Commission (“SEC”) and delivered to under the Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Act, the Advisers Act, the Internal Revenue Code Securities Act of 19861933, as amended, and the rules under each1940 Act. Should the Board of Directors of the Fund at any time make any definite determination as to investment policy and notify the Adviser thereof, and the Adviser shall be bound by such determination for the period, if any, specified in such notice or until similarly notified that such determination has been revoked. The Adviser shall take, on behalf of the Fund, all other federal and state laws or regulations actions which it deems necessary to implement the investment policies of the Fund applicable to the Company Fund’s Non-Investment Plan Assets and with respect to the Fund(s); (v) any order Fund’s Non-Investment Plan Assets to place all orders for the purchase or no-action letter sale of portfolio securities for the Fund with brokers or dealers selected by it, and in connection therewith, the Adviser is authorized as agent of the SEC governing Fund to give instructions to the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted custodian from time to time by the Board of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities Fund’s Non-Investment Plan Assets as to deliveries of securities and personnel, including salaries, expenses and fees payments of any personnel required cash for the Adviser to faithfully perform its duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct account of the Adviser's duties under this Agreement.
(e) The Adviser will select Fund. In connection with the selection of such brokers or dealers and dealers to effect all Fund transactions subject to the conditions set forth herein. The Adviser will place all necessary orders with brokersplacing of such orders, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The the Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all the most favorable net results as determined by the Board of Directors and set forth in the circumstances, Prospectus. Subject to this requirement and will maintain records adequate to demonstrate compliance with this requirement. In no instance will Fund securities be purchased from or sold to the Adviser, or any affiliated person thereof, except in accordance with provisions of the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, and any other applicable provisions of law, nothing shall prohibit the Adviser from selecting brokers or dealers with which it or the Fund is affiliated;
(ii) Furnish the Manager with factual information, research reports and investment recommendations relating to securities of Thai companies and the Fund’s investments held through the Investment Plan. The foregoing information shall include written and oral reports and analyses and statistical information as amended (“Exchange Act”)market trends and reports and advice concerning specific industries, without specific Thai companies and specific securities. The foregoing reports, information and advice shall be used by the express written approval Manager in such manner and for such purposes as the Manager deems appropriate for the purpose of managing the investments of the BoardFund held through the Investment Plan. In that regard, it is acknowledged that the Manager may review all information and advice it receives from the Adviser and decide on the basis of tie Manager’s own analysis, and on the basis of any other information and advice that the Manager may wish to consider, whether, when, and how to implement any of the investment advice and recommendations received from the Adviser;
(iii) Assist the Fund in the management and conduct of its business. In this connection, the Adviser agrees to (A) maintain or cause to be maintained for the Fund all books and records required under the 1940 Act to the extent that such books and records are not maintained or furnished by the administrator, custodians or other agents of the Fund, (B) furnish at its own expense for the use of the Fund such office space and facilities as the Fund may require for its reasonable needs to the extent that the same are not furnished by the Fund’s administrator, (C) provide to the Fund’s administrator, on a timely basis, such information as may be necessary or appropriate for the performance by the administrator of its duties, and (D) provide such other administrative services relating to the operation of the Fund, as the Fund may reasonably request;
(iv) Advise the Fund as to the operation of the Investment Plan, including advice as to the extent to which the Fund’s assets should be invested under the Investment Plan and when such investments should be made, advice regarding the extent to which distributions should be made from the Investment Plan and when such distributions should be made and advice regarding termination of the Investment Plan, if at the time appropriate; and
(v) Advise the Fund regarding services provided by the Fund’s administrator, custodians, transfer agent or dividend disbursing agent, any administrator for its dividend reinvestment plan, independent auditors, legal counsel and other persons providing services to the Fund.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Adviser in the manner which the Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(hb) The Adviser will maintain accepts such employment and preserve all accountsagrees during the term of this Agreement to render such services, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of furnish for the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides such office facilities and equipment and certain clericalfacilities, bookkeeping and other administrative services and will as may be required hereunder, to permit any of its officers and or employees to serve without compensation as officers, trustees directors or employees officers of the CompanyFund if elected to such positions and to assume the obligations herein set forth for the compensation herein provided. The Adviser shall for all purposes herein provided be deemed to be an independent contractor and, unless otherwise expressly provided or authorized, shall have no authority to act for or represent the Fund in any way or otherwise be deemed an agent of the Fund. All services to be rendered and facilities to be provided by the Adviser hereunder shall, at all times, be rendered or provided outside of the Kingdom of Thailand. Consistent with the foregoing and the provisions of Section 1(a)(ii), but without limiting the effect thereof, the Adviser shall in no event have discretion to invest or reinvest assets of the Fund held through the Investment Plan, nor to conclude contracts on behalf of the Manager or the Fund, including contracts for the purchase or sale of securities held or to be held under the Investment Plan. It is understood and agreed that the Adviser, by separate agreements with the Fund, may also serve the Fund in other capacities.
Appears in 1 contract
Samples: International Investment Advisory Agreement (Thai Capital Fund Inc)
APPOINTMENT OF ADVISER. The Company Adviser hereby appoints undertakes and agrees, upon the Adviser terms and conditions herein set forth, to act provide overall investment advisory services for the Fund and in connection therewith to, in accordance with the Fund’s investment objective, policies and restrictions as an investment adviser in effect from time to time:
(a) determining the composition of the Fund’s portfolio, the nature and timing of the changes to the FundsFund’s portfolio and the manner of implementing such changes in accordance with the Fund’s investment objective, subject policies and restrictions;
(b) identifying investment opportunities and making investment decisions for the Fund, including negotiating the terms of investments in, and dispositions of, portfolio securities and other instruments on the Fund’s behalf;
(c) monitoring the Fund’s investments;
(d) performing due diligence on prospective portfolio companies;
(e) exercising voting rights in respect of portfolio securities and other investments for the Fund;
(f) serving on, and exercising observer rights for, boards of directors and similar committees of the Fund’s portfolio companies;
(g) negotiating, obtaining and managing financing facilities and other forms of leverage; and
(h) providing the Fund with such other investment advisory and related services as the Fund may, from time to time, reasonably requi re for the supervision and oversight investment of capital, which may include, without limitation:
(i) making, in consultation with the Fund’s board of trustees (the “Board of Trustees”), investment strategy decisions for the Fund;
(ii) reasonably assisting the Board of Trustees (and the “Board”) Fund’s other service providers with the valuation of the CompanyFund’s assets;
(iii) directing investment professionals of the Adviser or non-investment professionals of the Administrator (as defined below) to provide managerial assistance to portfolio companies of the Fund as requested by the Fund, from time to time; and
(iv) exercising voting rights in respect of the Fund’s portfolio securities and other investments.
(vi) shall apply.
(v) The Adviser shall, upon request by an official or agency administering the securities laws of a state (a “State Administrator”), submit to such State Administrator the reports and statements required to be distributed to the Fund’s shareholders pursuant to this Agreement, any registration statement filed with the SEC and applicable federal and state law.
(vi) The Adviser has a fiduciary responsibility and duty to the Fund for the period safekeeping and on use of all the terms set forth funds and assets of the Fund, whether or not in this Agreementthe Adviser’s immediate possession or control. The Adviser accepts shall not employ, or permit another to employ, such appointment and agrees to render the services herein set forth, funds or assets except for the compensation herein specified in Schedule A.
(a) exclusive benefit of the Fund. The Adviser shall not contract away any fiduciary obligation owed by the Adviser to the Fund’s shareholders under common law. Subject to the supervision of the Board of Trustees, the Adviser shall have the power and consistent with authority on behalf of the Fund to effectuate its fiduciary duties investment decisions for the Fund, including the execution and delivery of all documents relating to each the Fund’s investments, the placing of orders for other purchase or sale transactions on behalf of the Fund and causing the Fund to pay investment-related expenses. In the event that the Fund determines to acquire debt financing, the Adviser will manage arrange for such financing on the investment operations and determine Fund’s behalf. If it is necessary or appropriate for the composition Adviser to make investments on behalf of the portfolio Fund through a special purpose vehicle, the Adviser shall have authority to create or arrange for the creation of each Fund, including the purchase, retention such special purpose vehicle and disposition of the securities and other instruments held by the Funds, to make such investments through such special purpose vehicle (in accordance with the terms Investment Company Act of this Agreement1940, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA as amended (the “Prospectus and SAI1940 Act”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures). Subject to the foregoing, the Adviser will determine the fair value prior approval of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent majority of the Adviser for each security or other investment/asset in each Fund for which market prices Board of Trustees, including a majority of the Board of Trustees who are not readily available;
(vii) provide any and all material performance information“interested persons” of the Fund and, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed extent required by the Adviser in managing 1940 Act and the Funds that may be reasonably necessaryrules and regulations thereunder, under subject to any applicable laws, to allow the Funds guidance or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives interpretation of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to or its staff, by the Advisershareholders of the Fund, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Actapplicable, the Advisers ActAdviser may, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board time, delegate to a sub-adviser or other service provider any of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its ’s duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and the management of all equipment necessary for the efficient conduct or a portion of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth hereinassets being managed. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures acknowledges that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In makes no instance will Fund securities be purchased from or sold to the Adviser, or warranty that any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be investments made by the Adviser hereunder will not depreciate in the manner which the Adviser considers value or at any time not be affected by adverse tax consequences, nor does it give any warranty as to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance or profitability of their duties with respect to any of their other clients that may differ from advice given, the assets or the timing success of any investment strategy recommended or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed used by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 1 contract
Samples: Investment Advisory Agreement (T. Rowe Price OHA Private Credit Fund)
APPOINTMENT OF ADVISER. The Company Adviser hereby appoints the Adviser to act as an investment adviser to the Fundsundertakes and agrees, subject to the supervision and oversight the Board of Trustees (the “Board”) of the Company, for the period and on upon the terms set forth in this Agreement. The Adviser accepts such appointment and agrees to render the services conditions herein set forth, to provide overall investment advisory services for the compensation herein specified Fund and in Schedule A.connection therewith to, in accordance with the Fund’s investment objective, policies and restrictions as in effect from time to time:
(a) determining the composition of the Fund’s portfolio, the nature and timing of the changes to the Fund’s portfolio and the manner of implementing such changes in accordance with the Fund’s investment objective, policies and restrictions;
(b) identifying investment opportunities and making investment decisions for the Fund, including negotiating the terms of investments in, and dispositions of, portfolio securities and other instruments on the Fund’s behalf;
(c) monitoring the Fund’s investments;
(d) performing due diligence on prospective portfolio companies;
(e) exercising voting rights in respect of portfolio securities and other investments for the Fund;
(f) serving on, and exercising observer rights for, boards of directors and similar committees of the Fund’s portfolio companies;
(g) negotiating, obtaining and managing financing facilities and other forms of leverage; and
(h) providing the Fund with such other investment advisory and related services as the Fund may, from time to time, reasonably require for the investment of capital, which may include, without limitation:
(i) making, in consultation with the Fund’s board of trustees (the “Board of Trustees”), investment strategy decisions for the Fund;
(ii) serving as the Fund’s valuation designee pursuant to Rule 2a-5 under the Investment Company Act of 1940, as amended (the “1940 Act”) and reasonably assisting the Fund’s other service providers with the valuation of the Fund’s assets;
(iii) directing investment professionals of the Adviser or non-investment professionals of HPS, in its capacity as the Fund’s administrator (in such capacity, the “Administrator”), to provide managerial assistance to portfolio companies of the Fund as requested by the Fund, from time to time; and
(iv) exercising voting rights in respect of the Fund’s portfolio securities and other investments.
(v) The Adviser shall, upon request by an official or agency administering the securities laws of a state (a “State Administrator”), submit to such State Administrator the reports and statements required to be distributed to the Fund’s shareholders pursuant to this Agreement, any registration statement filed with the SEC and applicable federal and state law.
(vi) The Adviser has a fiduciary responsibility and duty to the Fund for the safekeeping and use of all the funds and assets of the Fund, whether or not in the Adviser’s immediate possession or control. The Adviser shall not employ, or permit another to employ, such funds or assets except for the exclusive benefit of the Fund. The Adviser shall not contract away any fiduciary obligation owed by the Adviser to the Fund’s shareholders under common law. Subject to the supervision of the Board of Trustees, the Adviser shall have the power and consistent with authority on behalf of the Fund to effectuate its fiduciary duties investment decisions for the Fund, including the execution and delivery of all documents relating to each the Fund’s investments, the placing of orders for other purchase or sale transactions on behalf of the Fund and causing the Fund to pay investment-related expenses. In the event that the Fund determines to acquire debt financing, the Adviser will manage arrange for such financing on the investment operations and determine Fund’s behalf. If it is necessary or appropriate for the composition Adviser to make investments on behalf of the portfolio Fund through a special purpose vehicle, the Adviser shall have authority to create or arrange for the creation of each Fund, including the purchase, retention such special purpose vehicle and disposition of the securities and other instruments held by the Funds, to make such investments through such special purpose vehicle (in accordance with the terms of this Agreement, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA (the “Prospectus and SAI”1940 Act), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same as may reasonably be requested from time to time by the Board; and attend meetings with the Board, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value prior approval of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent majority of the Adviser for each security or other investment/asset in each Fund for which market prices Board of Trustees, including a majority of the Board of Trustees who are not readily available;
(vii) provide any and all material performance information“interested persons” of the Fund and, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed extent required by the Adviser in managing 1940 Act and the Funds that may be reasonably necessaryrules and regulations thereunder, under subject to any applicable laws, to allow the Funds guidance or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives interpretation of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information. To carry out the duties and responsibilities provided hereunder, the Adviser is hereby authorized, as agent and attorney-in-fact for the Company, for the account of, at the risk of and in the name of the Funds, to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect as the Funds might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions.
(c) In furnishing services hereunder, the Adviser will be subject to, and will perform its responsibilities in accordance, with the following: (i) the Company' s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to or its staff, by the Advisershareholders of the Fund, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Actapplicable, the Advisers ActAdviser may, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board time, delegate to a sub-adviser or other service provider any of the Company.
(d) The Adviser, at its expense, will furnish (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Adviser to faithfully perform its ’s duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and the management of all equipment necessary for the efficient conduct or a portion of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth hereinassets being managed. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures acknowledges that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In makes no instance will Fund securities be purchased from or sold to the Adviser, or warranty that any affiliated person thereof, except in accordance with the 1940 Act, the Advisers Act and the rules under each, and all other federal and state laws and regulations applicable to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be investments made by the Adviser hereunder will not depreciate in the manner which the Adviser considers value or at any time not be affected by adverse tax consequences, nor does it give any warranty as to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance or profitability of their duties with respect to any of their other clients that may differ from advice given, the assets or the timing success of any investment strategy recommended or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act and the rules thereunder and will file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Adviser will, unless and until otherwise directed used by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 1 contract
Samples: Investment Advisory Agreement (HPS Corporate Lending Fund)
APPOINTMENT OF ADVISER. (a) The Company Trust hereby appoints the Adviser to act as an investment adviser to the Funds, Trust and each of its Current Funds for the periods and on the terms herein set forth and subject to the general supervision and oversight of the Board of Trustees of the Trust (the “Board”) of the Company, for the period and on the terms set forth in this Agreement). The Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein specified in Schedule A.provided.
(ab) Subject to In the supervision of event that the Board and consistent with its fiduciary duties to each Fund, Trust establishes one or more portfolios other than the Adviser will manage the investment operations and determine the composition of the portfolio of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Funds, in accordance with the terms of this Agreement, each Fund' s investment objective and policies and each Fund' s then-current prospectus and statement of additional information contained in the Company's Registration Statement on Form N-lA (the “Prospectus and SAI”), as they may be amended or supplemented from time to time. As part of the services it will provide hereunder, the Adviser will:
(i) furnish continuously an investment program for each Fund;
(ii) designate the identity and weighting of the securities (and amount of cash, if any) to be accepted in exchange for creation units of a Fund or that will be applicable that day to redemption requests received by a Fund;
(iii) provide supervision of each Fund's investments and determine from time to time what investments or securities will be purchased, retained or sold by the Current Funds and what portion, if any, of the assets of each Fund will be held uninvested;
(iv) make changes on behalf of the Company in the investments for each Fund;
(v) maintain books and records with respect to each Fund's securities transactions and keep the Board fully informed on an ongoing basis of all material facts concerning the services provided by which it desires to retain the Adviser pursuant to this Agreement and the Adviser's key personnel and operations providing services with respect to the Funds; make regular and periodic special reports of such additional information concerning the same act as may reasonably be requested from time to time by the Board; and attend meetings with the Boardinvestment adviser hereunder, as reasonably requested, to discuss the foregoing;
(vi) in accordance with procedures and methods established by the Board, which may be amended from time to time, the Adviser will promptly it shall notify the Company's fund accounting agent of securities and instruments in a Fund which the Adviser believes should be fair valued in accordance with the Company's Valuation Procedures. Subject to the foregoing, the Adviser will determine the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Adviser for each security or other investment/asset in each Fund for which market prices are not readily available;
(vii) provide any and all material performance information, records and supporting documentation about accounts the Adviser manages, if appropriate, which are relevant to the Funds and that have investment objectives, policies, and strategies substantially similar to those employed by the Adviser in managing the Funds that may be reasonably necessary, under applicable laws, to allow the Funds or their agent to present information concerning the Adviser's prior performance in the Company's Prospectus and SAI and any permissible reports and materials prepared by the Funds or their agent; and
(viii) cooperate with and provide reasonable assistance to the Company's administrator, the Company's custodian and foreign custodians, the Company's transfer agent and pricing agents, the Company's officers and all other agents and representatives of the Company, keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Company, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of informationwriting. To carry out the duties and responsibilities provided hereunder, If the Adviser is hereby authorized, as agent willing to render such services under this Agreement it shall notify the Trust in writing whereupon such portfolio shall become a Fund hereunder and attorney-in-fact for shall be subject to the Company, for the account of, at the risk provisions of and in the name of the Funds, this Agreement to place orders and issue instructions for the Funds. In all purchases, sales and other transactions in securities for the Funds, the Adviser is authorized to exercise full discretion and act for the Funds in the same manner and with the same force and effect extent as the Current Funds might or could do except to the extent that said provisions (including those relating to the compensation payable by the Trust to the Adviser) are modified with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to Fund in writing by the furtherance or conduct of such purchases, sales or other transactionsTrust and the Adviser at the time.
(c) In furnishing services hereunderAt its discretion, the Adviser will be subject tomay provide advisory services under this Agreement through its own employees or the employees of one or more affiliated companies that are qualified to act as investment adviser to the Trust under applicable law and either control, and will perform its responsibilities in accordance, are controlled by or are under control with the followingAdviser, provided that: (i) the Company' s Agreement all persons, when providing services hereunder, are functioning as part of an organized group of persons; and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (“Declaration of Trust”); (ii) the By-Laws such organized group of the Company, as the same may be hereafter modified and/or amended from time to time (“By-Laws”); (iii) the currently effective Prospectus and SAI of the Company filed with the Securities and Exchange Commission (“SEC”) and delivered to persons is managed at all times by the Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the 1940 Act, the Advisers Act, the Internal Revenue Code of 1986, as amended, and the rules under each, and all other federal and state laws or regulations applicable to the Company and the Fund(s); (v) any order or no-action letter of the SEC governing the operation of the Company; (vi) the rules of any securities exchange applicable to a Fund; (vii) the Company's policies and procedures adopted pursuant to Rule 38a-1 under the 1940 Act (the “Compliance Manual”); and (viii) other policies, procedures and directives adopted from time to time by the Board of the Company’s’ authorized officers.
(d) The Adviser, at Adviser may delegate some or all of its expense, will furnish (i) all necessary facilities duties and personnelobligations under this Agreement to one or more investment sub-advisers or co-advisers, including salaries, expenses and fees but not limited to delegating the voting of any personnel required for the Adviser proxies relating to faithfully perform its duties under this Agreement; and (ii) furnish administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Adviser's duties under this Agreement.
(e) The Adviser will select brokers and dealers to effect all Fund transactions subject to the conditions set forth herein. The Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board from time to time and which have been provided to the Adviser, (ii) as described in the applicable a Fund's Prospectus and SAI, and (iii) in accordance with applicable federal and state laws and regulations. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Adviser will use its best efforts to seek to obtain for the Fund “best execution,” considering all of the circumstances, and will maintain records adequate to demonstrate compliance with this requirement. In no instance will Fund ’s portfolio securities be purchased from or sold to the Adviser, or any affiliated person thereof, except in accordance with the 1940 Actproxy voting policies and procedures of such investment sub-adviser; provided, the Advisers Act and the rules under eachhowever, and all other federal and state laws and regulations applicable that any such delegation shall be pursuant to the Company and the Funds.
(f) The Adviser is not authorized to engage in “soft-dollar” transactions, permitted by Section 28(e) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), without the express written approval of the Board.
(g) On occasions when the Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Adviser and its affiliates, the Adviser to the extent permitted by applicable laws and regulations, may, but will be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made an agreement with terms agreed upon by the Adviser Trust and approved in the a manner which the Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Company agrees that the Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Funds. The Company acknowledges that Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Funds, and that the Adviser will carry out its duties hereunder together with its duties under such relationships.
(h) The Adviser will maintain and preserve all accounts, books and records with respect to each Fund as are required of the Funds and an investment adviser of a registered investment company pursuant to the 1940 Act and Advisers Act provided, further, that no such delegation shall relieve the Adviser from its duties and obligations of management and supervision of the rules thereunder and will file with the SEC all forms management of each Fund’s assets pursuant to Section 13 of the Exchange Act, with respect this Agreement and to its duties as are set forth hereinapplicable law.
(i) The Adviser will, unless and until otherwise directed by the Board and consistent with seeking the best interest of the Funds, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Company's then-current proxy voting policies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Board gives written instructions to the contrary, the Adviser will vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Adviser's proxy voting guidelines, a copy of which has been provided to the Company.
(j) The Adviser will provide, or arrange for the provision of, transfer agency, custody, fund administration and accounting and all other non-distribution related services necessary for the Funds' operations, subject in each case to the approval of the Board. The Adviser will also provide supervisory personnel who will be responsible for supervising and monitoring the performance of the Company's service providers in connection with their duties. Such personnel may be employees of the Adviser or employees of affiliates of the Adviser or of other organizations. The Adviser will also administer the Company's business affairs, provides office facilities and equipment and certain clerical, bookkeeping and administrative services and will permit its officers and employees to serve without compensation as officers, trustees or employees of the Company.
Appears in 1 contract
Samples: Investment Advisory and Ancillary Services Agreement (FlexShares Trust)
