Common use of Representations and Covenants of the Manager; Manager Indemnification Obligations Clause in Contracts

Representations and Covenants of the Manager; Manager Indemnification Obligations. (a) The Manager represents and warrants to the Sub-Adviser that (i) it is registered as an investment adviser pursuant to Section 203 of the Advisers Act, (ii) the terms of this Agreement do not violate any obligation by which the Manager is bound, whether arising by contract, operation of law or otherwise, and that the Manager has the power, capacity and authority to enter into this Agreement and to perform in accordance herewith, (iii) it has the power, capacity and authority to cause the Trust to perform such actions as described herein, and (iv) true and complete copies of the Governing Documents and the Offering Documents, including the stated objectives, policies and restrictions of the Fund, have been delivered to the Sub-Adviser. The Manager shall notify the Sub-Adviser promptly if at any time this Agreement is in effect any of these representations and warranties no longer is true and correct in any material respect. (b) The Manager covenants that it will deliver to the Sub-Adviser true and complete copies of every amendment to the Governing Documents applicable to the Fund as promptly as practicable after the adoption thereof. Notwithstanding any other provision of this Agreement to the contrary, the Sub-Adviser will not be bound by any such amendment until the Sub-Adviser has received a copy thereof and has had a reasonable opportunity to review it. The Manager further covenants on behalf of itself and the Trust that no public reference to, or description of, the Sub-Adviser or its methodology or work shall be made by the Manager or the Trust, whether in the Offering Documents or otherwise, unless the Manager provides the Sub-Adviser with a reasonable opportunity to review any such reference or description prior to the first use of such reference or description. (c) The Manager shall indemnify and hold harmless the Sub-Adviser, its partners, officers, employees and agents and each person, if any, who controls the Sub-Adviser within the meaning of any applicable law (each, a “Sub-Adviser Indemnified Party”) from and against all losses, claims, damages, liabilities and expenses (including reasonable fees and other expenses of the Sub-Adviser Indemnified Party’s counsel, other than attorneys’ fees and costs in relation to the preparation of this Agreement; each party bearing responsibility for its own such costs and fees), joint or several, (other than liabilities, losses, expenses, attorneys’ fees and costs or damages arising from the Sub-Adviser’s willful misfeasance, bad faith or gross negligence in performing Sub-Adviser’s responsibilities under this Agreement) arising out of or from the Manager’s (or Manager’s Affiliates): (i) failure to perform its duties and assume its obligations hereunder; (ii) material breach by the Manager or the Manager’s Affiliates of any representation, warranty, covenant or agreement contained in this Agreement; or (iii) failure to disclose a material fact, or any omission by the Manager or the Manager’s Affiliate, or, failure to disclose a material fact, in any document relating to the Trust or the Fund; except to the extent caused by (i) the incorporation in any such document of information relating to the Sub-Adviser which is furnished to the Manager in writing by the Sub-Adviser expressly for inclusion in such document; or (ii) the willful misfeasance, bad faith, gross negligence or material breach of this Agreement by one or more of the Sub-Adviser, its partners, officers, directors, employees or agents. With respect to any claim for which a Sub-Adviser Indemnified Party is entitled to indemnity hereunder, the Manager shall assume the reasonable expenses and costs (including any reasonable attorneys’ fees and costs) of the Sub-Adviser Indemnified Party or investigating and/or defending any claim asserted or threatened by any party, subject always to the Manager first receiving a written undertaking from the Sub-Adviser Indemnified Party to repay any amounts paid on its behalf in the event and to the extent of any subsequent determination by a court with appropriate jurisdiction that the Sub-Adviser Indemnified Party was not entitled to indemnification hereunder with respect of such claim.