Common use of Representations, Warranties and Covenants of the Fund Clause in Contracts

Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following: 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) such Instruction will have been, duly authorized, executed and delivered by the Fund and the General Partner. This Agreement does not violate any Applicable Law (as defined in Section 13) or conflict with or constitute a default under the Fund’s prospectus or other organic document, agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it or its Investments is bound. 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund has (a) made all determinations required to be made by the Fund under Applicable Law, and (b) appropriately and adequately disclosed to its unitholders and all persons who have rights in or to such Investments, all material investment risks, including those relating to the custody and settlement infrastructure or the servicing of securities in such jurisdiction. 2.3 The Fund and the General Partner shall safeguard and shall be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides them. In furtherance and not limitation of the foregoing, in the event the Fund and/or the General Partner utilizes any on-line service offered by the Custodian, the Fund, the General Partner and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner shall be solely responsible for ensuring the security of their access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General Partner, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund and the General Partner.

Appears in 12 contracts

Samples: Custodian Agreement (United States 12 Month Natural Gas Fund, LP), Custodian Agreement (United States Short Oil Fund, LP), Custodian Agreement (United States Heating Oil Fund, LP)

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Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following: With respect to BBH&Co’s appointment as Custodian and TA: 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) Instruction, such Instruction will have been, duly authorized, executed and delivered by the Fund and the General PartnerFund. This Agreement does not violate Neither this Agreement, nor any Instruction issued hereunder violates any Applicable Law (as defined in Section 13) or conflict conflicts with or constitute constitutes a default under the applicable Portfolio’s prospectus, the Fund’s prospectus articles of organization or other organic document, constitutive documents or any agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it the Fund or its Investments is bound.. With respect to BBH&Co’s appointment as Custodian: 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund has (a) assessed and accepted all material Country, Sanctions or Sovereign Risks and accepted responsibility for their occurrence, (b) made all determinations required to be made by the Fund under Applicable Lawthe 1940 Act, and (biii) appropriately and adequately disclosed to its unitholders the respective Portfolio’s shareholders, other investors and all persons who have rights in or to such Investments, all material investment risks, including those relating to the custody and settlement infrastructure or the servicing of securities in such jurisdiction. 2.3 The Fund and the General Partner shall safeguard and shall solely be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides themit. In furtherance and not limitation of the foregoing, in the event If the Fund and/or the General Partner utilizes any on-line service offered by the Custodian, the Fund, the General Partner and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner shall be solely responsible for ensuring the security of their its access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General PartnerFund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund. 2.4 Notwithstanding anything in this Agreement to contrary effect, the Fund specifically represents and warrants to the Custodian that it shall at all times be principally liable for the repayment of any Advance made by the Custodian under this Agreement. 2.5 By providing an Instruction in respect of an Investment (which Instruction may relate to among other things, the processing of orders and/or settlement of transactions in funds), the Fund hereby (i) authorizes BBH&Co. to complete such documentation as may be required or appropriate to carry out the Instruction, and agrees to be contractually bound to the terms of such documentation “as is” without recourse against BBH&Co.; (ii) represents, warrants and covenants that it has accepted and agreed to comply with all Applicable Law, terms and conditions to which it and/or its Investment may be bound, including without limitation, requirements imposed by the Investment prospectus or offering circular, subscription agreement, any application or other documentation relating to an Investment (e.g., compliance with suitability requirements and eligibility restrictions and requirements that all such documentation relating to the investment has been received, read and understood by the Fund (for itself and its Portfolio)); (iii) acknowledges and agrees that BBH&Co. will not be responsible for the accuracy of any information provided to it by or on behalf of the Fund, or for any underlying commitment or obligation inherent to an Investment; (iv) represents, warrants and covenants that it will not effect any sale, transfer or disposition of Investment(s) held in BBH&Co.’s name by any means other than the issuance of an Instruction by the Fund to BBH&Co.; (v) acknowledges that collective investment schemes (and/or their agent(s)) in which the Fund invests may pay to BBH&Co. certain fees (including without limitation, shareholder servicing and/or trailer fees) in respect of the Fund’s investments in such schemes; (vi) agrees that BBH&Co. shall have no obligation or responsibility whatsoever to respond to, or provide capital in connection with any capital calls, letters of intent or other requirements as set out in the prospectus or offering circular of an Investment; (vii) represents, warrants and covenants that it will provide BBH&Co. with such information as is necessary or appropriate to enable BBH&Co.’s performance pursuant to an Instruction or under this Agreement; (viii) undertakes to inform BBH&Co. and to keep the same updated as to any tax withholding or benefit to which an Investment may be subject; (ix) authorizes BBH&Co. to furnish the customer due diligence records maintained by BBH&Co. on the Fund and its beneficial owners upon request of the General Partnertransfer agent or other agent of an issuer of an Investment; (x) represents and warrants that to the extent the Fund provides BBH&Co. with any personal data or personally identifiable information in connection with an Investment, the Fund will have obtained the consent of the applicable individuals to provide such data and information to BBH&Co. and the fund and to the use of such data and information as described in the applicable account opening, subscription and related fund documentation; (xi) acknowledges that BBH&Co. shall have no obligation to fund any order placed by the Fund for which the Fund does not have sufficient cash on deposit with BBH&Co.; and (xii) agrees that BBH&Co. shall be held harmless for the acts, omissions or any unlawful activity of any agent of the Fund, or any transfer agent or other agent of an Investment in which the Fund may invest. 2.6 The Fund represents and warrants that it is not resident in or organized under the laws of any country with which transactions or dealings are prohibited under a Sanctions Regime. The Fund further warrants that it is not owned or controlled by: (i) the government of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) a person or entity resident in or organized under the laws of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; or (iii) any person or entity on the List of Specially Designated Nationals and Blocked Persons published by OFAC or any comparable Sanctions Regime lists. 2.6.1 The Fund represents and warrants that it conducts ongoing screening of its holdings, relevant transactional activity, and service providers engaged by the Fund, including but not limited to Authorized Participants and distributors, against lists promulgated by a Sanctions Regime, as such lists are amended from time to time. 2.6.2 The Fund represents and warrants that it has implemented adequate risk management, control and compliance procedures and systems to ensure that it will not instruct or otherwise cause Custodian to hold any assets in custody that would violate a Sanctions Regime. The Fund further represents it will not instruct Custodian to invest in any asset, nor engage in or facilitate any transaction that would cause Custodian to violate any Sanctions Regime, including any transaction or dealing involving: (i) any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) any person or entity subject to any Sanctions Regime; or (iii) any assets owned or controlled by a person or entity that is subject to any Sanctions Regime (collectively, “Sanctioned Property”). The Fund further represents and warrants that it has confirmed that relevant service providers engaged by the Fund, including but not limited to Authorized Participants and distributors, have implemented equivalent controls as stated above. The Fund further represents and warrants that it will promptly notify the Custodian in writing if either it or any of the above relevant service providers becomes subject to a Sanctions Regime or if any of the assets custodied by BBH subsequently becomes Sanctioned Property. 2.7 The Fund represents and warrants that it has developed and implemented an anti-money laundering (“AML”) program (“AML Program”) that is designed to comply with all applicable AML and terrorist financing laws and regulations, including but not limited to: the United States Bank Secrecy Act, as amended by the USA PATRIOT Act of 2001, and the regulations promulgated thereunder; the 4th European Union Anti-Money Laundering Directive; or Financial Action Task Force (“FATF”) standards against money laundering and terrorist financing (collectively, “applicable AML laws”). The Fund represents and warrants that its AML Program includes proper due diligence on relevant service providers, including but not limited to Authorized Participants and distributors, and confirmation that such service providers have implemented their own policies and procedures designed to comply with applicable AML Laws. The Fund further represents and warrants that it creates and maintains all records and documentation required by applicable AML laws, including identification and verification records of the Fund’s customers. 2.7.1 The Fund acknowledges that the Custodian is obligated under applicable US AML Laws to obtain, verify and record identifying information about its customers prior to opening an account. 2.7.2 The Fund represents and warrants that upon request, it will provide the Custodian with information that the Custodian requires to comply with applicable AML Laws and Sanctions Regimes, including but not limited to, verification regarding the AML and Sanctions Regime controls implemented by the above relevant service providers. 2.7.3 The Fund further represents and warrants that it will not instruct or otherwise cause Custodian to hold any assets in custody or engage in or facilitate any transaction that would cause Custodian to violate any applicable AML laws. 2.8 The Fund represents and warrants that neither it nor any Portfolio is a “Plan” (which term includes (1) employee benefit plans that are subject to the United States (“US”) Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the US Internal Revenue Code of 1986, as amended (the “Code”), (2) plans, individual retirement accounts and other arrangements that are subject to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, and (3) entities the underlying assets of which are considered to include “plan assets” of such plans, accounts and arrangements), or an entity purchasing shares on behalf of, or with the “plan assets” of, a Plan, and further undertakes to inform BBH&Co. and to keep the same updated as to the status under ERISA or Section 4975 of the Code, each as amended, of the Fund, including its Portfolios, or (4) the assets of any plan or other retirement arrangement or account that is not subject to Section 4975 of the Code or Title I of ERISA but is subject to any U.S. federal, state or local law or regulation or any non-U.S. or other law or regulation that contains one or more provisions that are similar to any of the fiduciary responsibility or prohibited transaction provisions under Title I of ERISA or Section 4975 of the Code. 2.9 The Fund represents and warrants that it will promptly notify the Custodian in writing if any of the above representations cease to be true.

Appears in 10 contracts

Samples: Custodian and Transfer Agent Agreement (Investment Managers Series Trust III), Custodian and Transfer Agent Agreement (Fpa Funds Trust), Custodian and Transfer Agent Agreement (Advisors' Inner Circle Fund)

Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following: 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) such Instruction will have been, duly authorized, executed and delivered by the Fund and the General PartnerFund. This Neither this Agreement does not violate nor any Instruction issued thereunder violates any Applicable Law (as defined in Section 13) or conflict conflicts with or constitute constitutes a default under the Fund’s prospectus prospectus, articles of organization or other organic document, constitutive document or any agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it or its Investments is bound. The Fund also represents and warrants that it will comply in all material respects with all laws and regulations applicable to it in its performance of this Agreement. 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund has (a) assessed and accepted all material Country, Sanctions or Sovereign Risks and accepted responsibility for their occurrence, (b) made all determinations required to be made by the Fund under Applicable Lawthe 1940 Act, and (biii) appropriately and adequately disclosed to its unitholders shareholders, other investors and all persons who have rights in or to such Investments, all material investment risks, including those relating to the custody and settlement infrastructure or the servicing of securities in such jurisdiction. 2.3 The Fund and the General Partner shall safeguard and shall solely be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides themit. In furtherance and not limitation of the foregoing, in the event If the Fund and/or the General Partner utilizes any on-line service offered by the Custodian, the Fund, the General Partner and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner shall be solely responsible for ensuring the security of their its access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General PartnerFund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund and the General PartnerFund.

Appears in 4 contracts

Samples: Custodian Agreement (Mutual of America Investment Corp), Custodian Agreement (Mutual of America Variable Insurance Portfolios, Inc.), Custodian Agreement (Mutual of America Institutional Funds Inc)

Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following: 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) such Instruction will have been, duly authorized, executed and delivered by the Fund and the General PartnerFund. This Neither this Agreement does not violate nor any Instruction issued thereunder violates any Applicable Law (as defined in Section 13) any material respect or conflict conflicts with or constitute constitutes a default under the Fund’s prospectus 's prospectus, articles of organization or other organic document, constitutive document or any agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it or its Investments is bound. 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund has (a) assessed and accepted all material Country, Sanctions or Sovereign Risks (as defined in Section 9.1.3) and accepted responsibility for their occurrence, (b) made all determinations required to be made by the Fund under Applicable Lawthe 1940 Act, and (biii) appropriately and adequately disclosed to its unitholders shareholders, other investors and all persons who have rights in or to such Investments, all material investment risksrisks that are required to be disclosed under Applicable Law, including those relating to the custody and settlement infrastructure or the servicing of securities in such jurisdiction. 2.3 The Fund and the General Partner shall safeguard and shall solely be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides them. In furtherance and not limitation of the foregoing, in the event the Fund and/or the General Partner utilizes any on-line service offered provided to it by the Custodian, the Fund, the General Partner and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if If the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner shall be solely responsible for ensuring the security of their its access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General PartnerFund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund. 2.4 By providing an Instruction in respect of an Investment (which Instruction may relate to among other things, the processing of orders and/or settlement of transactions in funds), the Fund hereby (i) authorizes BBH&Co. to complete such documentation as may be required or appropriate to carry out the Instruction, and, except as expressly set forth in Section 9 of this Agreement, agrees to be contractually bound to the terms of such documentation “as is” without recourse against BBH&Co. (ii) represents, warrants and covenants that, in respect of any Investment in a fund, it has accepted and agreed to comply with all Applicable Law, terms and conditions to which it and/or its Investment may be bound, including without limitation, requirements imposed by the Investment prospectus or offering circular, subscription agreement, any application or other documentation relating to an Investment (e.g., compliance with suitability requirements and eligibility restrictions and requirements that all such documentation relating to the investment has been received, read and understood by the Fund (for itself and/or its customer); (iii) acknowledges and agrees that BBH&Co. will not be responsible for the accuracy of any information provided to it by or on behalf of the Fund, or for any underlying commitment or obligation inherent to an Investment; (iv) except as otherwise provided for in Section 2.4.1, represents, warrants and covenants that it will not effect any sale, transfer or disposition of Investment(s) held in BBH&Co.’s name by any means other than the issuance of an Instruction by the Fund to BBH&Co.; (v) acknowledges that collective investment schemes (and/or their agent(s)) in which the Fund invests may pay to BBH&Co. certain fees (including without limitation, shareholder servicing and/or trailer fees) in respect of the Fund’s investments in such schemes; (vi) agrees that BBH&Co. shall have no obligation or responsibility whatsoever to respond to, or provide capital in connection with any capital calls, letters of intent or other requirements as set out in the prospectus or offering circular of an Investment; (vii) represents, warrants and covenants that it will provide BBH&Co. with such information as is necessary or appropriate to enable BBH&Co.’s performance pursuant to an Instruction or under this Agreement; (viii) undertakes to inform BBH&Co. and to keep the same updated as to any tax withholding or benefit to which an Investment may be subject; (ix) in respect of any Investment in a fund, authorizes BBH&Co. to furnish the customer due diligence records maintained by BBH&Co. on the Fund and its beneficial owners to the General Partnertransfer agent or other agent of the issuer of the Investment to satisfy regulatory obligations or as otherwise required by such agent in order to permit BBH&Co. to process an order or perform its obligations hereunder, subject to such applicable obligations as the receiving party assumes under the relevant account application or subscription documentation to safeguard and to maintain the confidentiality of such information; (x) represents and warrants that to the extent the Fund provides BBH&Co. with any personal data or personally identifiable information in connection with an Investment, the Fund will have obtained the consent of the applicable individuals to provide such data and information to BBH&Co. and the Fund and to the use of such data and information as described in the applicable account opening, subscription and related Fund documentation; (xi) acknowledges that BBH&Co. shall have no obligation to fund any order placed by the Fund for which the Fund does not have sufficient cash on deposit with BBH&Co.; and (xii) except as expressly set forth in Section 9 of this Agreement, agrees that BBH&Co. shall be held harmless for the acts, omissions or any unlawful activity of any agent of the Fund, or any transfer agent or other agent of an Investment in which the Fund may invest. 2.4.1 To the extent that the Fund holds Investments in an account opened in the name of BBH&Co. as custodian for and at the direction of the Fund, and the Fund requests that BBH&Co. provide the Fund with the capability to place orders in fund shares directly with such fund companies and/or their transfer agents which shall be settled in an account established with each such fund company or its transfer agent, the Fund hereby acknowledges that BBH&Co. is under no obligation to agree to such arrangement but if BBH&Co. so agrees, the Fund (i) acknowledges that all relevant terms under Section 2.4 above apply thereto, (ii) authorizes BBH&Co. as custodian, to grant a limited power of attorney to the Fund or its designated agent to enable the Fund to place orders in fund shares directly with the fund companies and/or their transfer agents, (iii) agrees to ensure that any instructions issued by the Fund or its designated agent shall also be concurrently submitted to BBH&Co., and (iv) shall adhere to any BBH&Co. procedures established with each such fund or its transfer agent with respect thereto including, but not limited to, the terms of the limited power of attorney. The Fund also acknowledges and agrees that (1) BBH&Co. is acting solely in its capacity as custodian and is not acting as a broker or introducing broker on behalf of the Fund, (2) BBH&Co. is not receiving compensation in connection with the Fund’s own execution hereunder of trades with each such fund other than its usual and customary custody fees and transaction charges, (3) it will provide such account opening information to each such fund and/or transfer agent as and when requested by such fund and/or transfer agent, and (4) BBH&Co. is not responsible for (a) providing information published by the relevant distributor of each such fund including, but not limited to, the prospectus for each such Investment in a fund or for resolving execution queries or complaints relative to any such Investment, and (b) assessing the suitability of any such Investment placed directly by the Fund. 2.5 The Fund represents and warrants that it is not resident in or organized under the laws of any country with which transactions or dealings are prohibited under a Sanctions Regime. The Fund further warrants that it is not owned or controlled by: (i) the government of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) a person or entity resident in or organized under the laws of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; or (iii) any person or entity on the List of Specially Designated Nationals and Blocked Persons published by OFAC or any comparable Sanctions Regime lists. 2.5.1 The Fund represents and warrants that either the Fund or its service providers conduct ongoing screening of the Fund’s investors and their transactional activity against lists promulgated by a Sanctions Regime, as such lists are amended from time to time. 2.5.2 The Fund represents and warrants that it has implemented adequate risk management, control and compliance procedures and systems to ensure that it will not instruct or otherwise cause Custodian to hold any assets in custody that would violate a Sanctions Regime. The Fund further represents it will not invest in, engage in, or facilitate any transaction that would cause Custodian to violate any Sanctions Regime, including any transaction or dealing involving: (i) any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) any person or entity subject to any Sanctions Regime; or (iii) any assets owned or controlled by a person or entity that is subject to any Sanctions Regime (collectively, “Sanctioned Property”). The Fund further represents and warrants that it will promptly notify the Custodian in writing if either it or any of its underlying investors whose assets are held by the Custodian becomes subject to a Sanctions Regime or holds assets that subsequently became Sanctioned Property. 2.6 The Fund represents and warrants that it has developed and implemented an anti-money laundering (“AML”) program (“AML Program”) that is designed to comply with all applicable AML and terrorist financing laws and regulations, including but not limited to: the United States Bank Secrecy Act, as amended by the USA PATRIOT Act of 2001, and the rules and guidance of any applicable self-regulatory organization (collectively, “applicable AML laws”). The Fund represents and warrants that its AML Program, or the AML Programs of its service providers, include a written Customer Identification Program (“CIP”) that identifies and verifies the Fund’s investors, including beneficial owners, as required by applicable AML laws. The Fund further represents and warrants that its AML Program, or the AML Programs of its service providers, include policies, procedures and controls designed to ensure that: (i) none of the Fund’s investors are prohibited banks that fail to maintain a physical presence in any country (a “Shell Bank”); (ii) enhanced due diligence is conducted on investors identified as Politically Exposed Persons, which includes ascertaining source of wealth for such investors; (iii) ongoing monitoring is conducted to identify and report suspicious activity; and (iv) the Fund or its service provides create and maintain all records and documentation required by applicable AML laws, including identification and verification records of the Fund’s investors. 2.6.1 The Fund acknowledges that the Custodian is obligated under applicable US AML Laws to obtain, verify and record identifying information about its customers prior to opening an account. 2.6.2 The Fund represents and warrants that upon reasonable request of the Custodian, it will provide the Custodian with information that is necessary for the Custodian to comply with applicable AML Laws and Sanctions Regimes. 2.6.3 The Fund further represents and warrants that it will not instruct or otherwise cause Custodian to hold any assets in custody or engage in or facilitate any transaction that would cause Custodian to violate any applicable AML laws. 2.6.2 The Fund further represents and warrants that it will not instruct or otherwise cause Custodian to hold any assets in custody or engage in or facilitate any transaction that would cause Custodian to violate any applicable AML laws. 2.7 The Fund represents and warrants that it is not a “Plan” (which term includes (1) employee benefit plans that are subject to the United States (“US”) Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the US Internal Revenue Code of 1986, as amended (the “Code”), (2) plans, individual retirement accounts and other arrangements that are subject to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, and (3) entities the underlying assets of which are considered to include “plan assets” of such plans, accounts and arrangements), or an entity purchasing shares on behalf of, or with the “plan assets” of, a Plan, and further undertakes to inform BBH&Co. and to keep the same updated as to the status under ERISA or Section 4975 of the Code, each as amended, of the Fund. 2.8 The Fund represents and warrants that it will promptly notify the Custodian in writing if any of the above representations cease to be true.

Appears in 2 contracts

Samples: Custodian Agreement (Cullen Funds Trust), Custodian Agreement (Cullen Funds Trust)

Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following: 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) Instruction, such Instruction will have been, duly authorized, executed and delivered by the Fund and the General PartnerFund. This Agreement does not violate Neither this Agreement, nor any Instruction issued hereunder violates any Applicable Law (as defined in Section 13) or conflict conflicts with or constitute constitutes a default under the applicable Portfolio’s prospectus, the Fund’s prospectus organizational documents or other organic document, any agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it Portfolio or its Investments is bound. 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund has (a) assessed and accepted all material Country, Sanctions or Sovereign Risks and accepted responsibility for their occurrence, (b) made all determinations required to be made by the Fund under Applicable Lawthe 1940 Act, except those appropriately delegated to the Custodian in the Delegation Schedule, and (biii) appropriately and if appropriate, adequately disclosed to its unitholders and all persons who have rights in or to such Investments, all the material investment risksrisks of such Investment, including those relating to Country Risks. Nothing in this Section 2.2 shall relieve the custody and settlement infrastructure or the servicing Custodian of securities in such jurisdictionits responsibilities under Section 8.2 of this Agreement. 2.3 The Fund and the General Partner shall safeguard and shall solely be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides themit. In furtherance and not limitation of the foregoing, in the event If the Fund and/or the General Partner utilizes any on-line service offered by the Custodian, the Fund, the General Partner and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner Custodian each shall be solely responsible for ensuring the security of their its access to the service and for the authorized use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General PartnerFund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund. 2.4 By providing an Instruction in respect of an Investment (which Instruction may relate to among other things, the processing of orders and/or settlement of transactions in funds), the Fund hereby (i) authorizes BBH&Co. to complete such documentation as may be required or appropriate to carry out the Instruction, and agrees to be contractually bound to the terms of such documentation “as is” without recourse against BBH&Co.; (ii) represents, warrants and covenants that it has accepted and agreed to comply with all Applicable Law, terms and conditions to which it and/or its Investment may be bound, including without limitation, requirements imposed by the Investment prospectus or offering circular, subscription agreement, any application or other documentation relating to an Investment (e.g., compliance with suitability requirements and eligibility restrictions and requirements that all such documentation relating to the investment has been received, read and understood by the Fund (for itself and/or its customer); (iii) acknowledges and agrees that BBH&Co. will not be responsible for the accuracy of any information provided to BBH&Co. by or on behalf of the Fund, or for any underlying commitment or obligation inherent to an Investment; (iv) except as otherwise provided for in Section 2.4.1, represents, warrants and covenants that it will not effect any sale, transfer or disposition of Investment(s) held in BBH&Co.’s name by any means other than the issuance of an Instruction by the Fund to BBH&Co.; (v) acknowledges that collective investment pools (and/or their agent(s)) in which the Fund invests may pay to BBH&Co. certain fees (including without limitation, shareholder servicing and/or trailer fees) in respect of the Fund’s investments in such pools; (vi) agrees that BBH&Co. shall have no obligation or responsibility whatsoever to respond to, or provide capital in connection with any capital calls, letters of intent of other requirements as set out in the prospectus or offering circular of an Investment; (vii) represents, warrants and covenants that it will provide BBH&Co. with such information as is necessary or appropriate to enable BBH&Co.’s performance pursuant to an Instruction or under this Agreement; (viii) undertakes to inform BBH&Co. and to keep the same updated as any tax withholding or benefit to which an Investment may be subject; (ix) authorizes BBH&Co. to furnish the customer due diligence records maintained by BBH&Co. on the Fund and its beneficial owners to the General Partnertransfer agent or other agent of an issuer of an Investment to satisfy regulatory obligations; (x) represents and warrants that to the extent the Fund provides BBH&Co. with any personal data or personally identifiable information in connection with an Investment, the Fund will have obtained the consent of the applicable individuals to provide such data and information to BBH&Co. and the Fund and to the use of such data and information as described in the applicable account opening, subscription and related Fund documentation; (xi) acknowledges that BBH&Co. shall have no obligation to fund any order placed by the Fund for which the Fund does not have sufficient cash on deposit with BBH&Co.; and (xii) agrees that BBH&Co. shall be held harmless for the acts, omissions or any unlawful activity of any agent of the Fund, or any transfer agent or other agent of an Investment in which the Fund may invest. 2.4.1 To the extent that the Fund holds Investments in an account opened in the name of BBH&Co. as custodian for and at the direction of the Fund, and the Fund requests that BBH&Co. provide the Fund with the capability to place orders in fund shares directly with such fund companies and/or their transfer agents which shall be settled in an account established with each such fund company or its transfer agent, the Fund hereby acknowledges that BBH&Co. is under no obligation to agree to such arrangement but if BBH&Co. so agrees, the Fund (i) acknowledges that all relevant terms under Section 2.4 above apply thereto, (ii) authorizes BBH&Co. as custodian, to grant a limited power of attorney to the Fund or its designated agent to enable the Fund to place orders in fund shares directly with the fund companies and/or their transfer agents, (iii) agrees to ensure that any instructions issued by the Fund or its designated agent shall also be concurrently submitted to BBH&Co., and (iv) shall adhere to any BBH&Co. procedures established with each such fund or its transfer agent with respect thereto including, but not limited to, the terms of the limited power of attorney. The Fund also acknowledges and agrees that (1) BBH&Co. is acting solely in its capacity as custodian and is not acting as a broker or introducing broker on behalf of the Fund, (2) BBH&Co. is not receiving compensation in connection with the Fund’s own execution hereunder of trades with each such fund other than its usual and customary custody fees and transaction charges, (3) it will provide such account opening information to each such fund and/or transfer agent as and when requested by such fund and/or transfer agent, and (4) BBH&Co. is not responsible for (a) providing information published by the relevant distributor of each such fund including, but not limited to, the prospectus for each such Investment in a fund or for resolving execution queries or complaints relative to any such Investment, and (b) assessing the suitability of any such Investment placed directly by the Fund. 2.5 The Fund represents and warrants that it is not resident in or organized under the laws of any country with which transactions or dealings are prohibited under a Sanctions Regime. The Fund further warrants that it is not controlled by: (i) the government of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) a person or entity resident in or organized under the laws of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; or (iii) any person or entity on the List of Specially Designated Nationals and Blocked Persons published by OFAC or any comparable Sanctions Regime lists. 2.5.1 The Fund represents and warrants that it conducts ongoing screening of relevant parties engaged by the Fund, including, but not limited to, Authorized Participants and distributors, against lists promulgated by a Sanctions Regime, as such lists are amended from time to time. 2.5.2 The Fund represents and warrants that it has implemented adequate risk management, control and compliance procedures and systems to ensure that it will not instruct or otherwise cause Custodian to hold any assets in custody that would violate a Sanctions Regime. The Fund further represents it will not instruct Custodian to invest in a collective investment vehicle on its behalf, nor engage in or facilitate any transaction that would cause Custodian to violate any Sanctions Regime, including any transaction or dealing involving: (i) any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) any person or entity subject to any Sanctions Regime; or (iii) any assets owned or controlled by a person or entity that is subject to any Sanctions Regime (collectively, “Sanctioned Property”). The Fund further represents and warrants that it will promptly notify the Custodian in writing if either it or any of the above relevant parties becomes subject to a Sanctions Regime or if any of the assets custodied by the Custodian become Sanctioned Property. 2.6 The Fund represents and warrants that it has developed and implemented an anti-money laundering (“AML”) program (“AML Program”) that is designed to comply with all applicable AML and terrorist financing laws and regulations, including but not limited to: the United States Bank Secrecy Act, as amended by the USA PATRIOT Act of 2001, and the regulations promulgated thereunder; the 4th European Union Anti-Money Laundering Directive; or Financial Action Task Force (“FATF”) standards against money laundering and terrorist financing (collectively, “applicable AML laws”). The Fund represents and warrants that its AML Program includes proper due diligence on relevant parties, including but not limited to, Authorized Participants and distributors, and confirmation that such parties have implemented their own policies and procedures designed to comply with applicable AML laws. The Fund further represents and warrants that it creates and maintains all records and documentation required by applicable AML laws. 2.6.1 The Fund acknowledges that the Custodian is obligated under applicable US AML Laws to obtain, verify and record identifying information about its customers prior to opening an account. 2.6.2 The Fund represents and warrants that upon request, it will provide the Custodian with information that the Custodian requires to comply with applicable AML Laws and Sanctions Regimes. 2.6.3 The Fund further represents and warrants that it will not instruct or otherwise cause Custodian to hold any assets in custody or engage in or facilitate any transaction that would cause Custodian to violate any applicable AML laws. 2.7 The Fund represents and warrants that it is not a “Plan” (which term includes (1) employee benefit plans that are subject to the United States (“US”) Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the US Internal Revenue Code of 1986, as amended (the “Code”), (2) plans, individual retirement accounts and other arrangements that are subject to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, and (3) entities the underlying assets of which are considered to include “plan assets” of such plans, accounts and arrangements), or an entity purchasing shares on behalf of, or with the “plan assets” of, a Plan, and further undertakes to inform BBH&Co. and to keep the same updated as to the status under ERISA or Section 4975 of the Code, each as amended, of the Fund. 2.8 Notwithstanding anything in this Agreement to contrary effect, the Fund specifically represents and warrants to the Custodian that it shall at all times be principally liable for the repayment of any Advance made by the Custodian under this Agreement. 2.9 The Fund represents and warrants that it will promptly notify the Custodian in writing if any of the above representations cease to be true.

Appears in 2 contracts

Samples: Custodian Agreement (Investment Managers Series Trust), Custodian Agreement (Investment Managers Series Trust)

Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following: 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) such Instruction will have been, duly authorized, executed and delivered by the Fund and the General PartnerFund. This Agreement does not violate any Applicable Law (as defined in Section 13) or conflict with or constitute a default under the Fund’s prospectus or other organic document, agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it or its Investments is bound. 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund Fund, or its delegate or agent, has (a) made assessed and accepted all determinations required to be made by the Fund under Applicable Lawmaterial Country or Sovereign Risks and accepted responsibility for their occurrence and will, and (b) appropriately and adequately where appropriate, ensure that such risks are disclosed to its unitholders and all persons who have rights in or to such Investments, all material investment risks, including those relating to the custody and settlement infrastructure or the servicing of securities in such jurisdictionFund’s shareholders. 2.3 The Fund and the General Partner shall safeguard and shall solely be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides themit, except that the Fund shall not be responsible where the Custodian has been negligent in the safekeeping of such devices or statements of account. In furtherance and not limitation of the foregoing, in the event the Fund and/or the General Partner utilizes any on-line service offered by the Custodian, the Fund, the General Partner Fund and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof thereof, and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner shall be solely responsible for ensuring the security of their access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General Partner, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund and the General Partner.

Appears in 2 contracts

Samples: Custodian Agreement (Schwab Capital Trust), Custodian Agreement (Schwab Annuity Portfolios)

Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following: 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) such Instruction will have been, duly authorized, executed and delivered by the Fund and the General PartnerFund. This Agreement does not violate any Applicable Law (as defined in Section 13) or conflict with or constitute a default under the Fund’s 's prospectus or other organic document, agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it or its Investments is bound. 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund has (a) assessed and accepted all material country or sovereign risks and accepted responsibility for their occurrence, (b) made all determinations required to be made by the Fund under Applicable Lawthe 1940 Act, and (biii) appropriately and adequately disclosed to its unitholders shareholders, other investors and all persons who have rights in or to such Investments, all material investment risks, including those relating to the custody and settlement infrastructure or the servicing of securities in such jurisdiction. 2.3 The Fund and the General Partner shall safeguard and shall solely be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides themit. In furtherance and not limitation of the foregoing, in the event the Fund and/or the General Partner utilizes any on-line service offered by the Custodian, the Fund, the General Partner Fund and the Custodian shall be fully responsible for the security of each party’s respective 's connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner shall be solely responsible for ensuring the security of their its access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s 's computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General PartnerFund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund and the General PartnerFund.

Appears in 2 contracts

Samples: Custodian Agreement (Nicholas Applegate Convertible & Income Fund), Custodian Agreement (Nicholas Applegate Convertible & Income Fund Ii)

Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following:warrants 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) such Instruction will have been, duly authorized, executed and delivered by the Fund and the General PartnerFund. This Agreement does not violate any Applicable Law (as defined in Section 13) or conflict with or constitute a default under the Fund’s 's prospectus or other organic document, agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it or its Investments is bound. 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund Fund, or its delegate or agent, has (a) made assessed and accepted all determinations required to be made by the Fund under Applicable Lawmaterial Country or Sovereign Risks and accepted responsibility for their occurrence and will, and (b) appropriately and adequately where appropriate, ensure that such risks are disclosed to its unitholders and all persons who have rights in or to such Investments, all material investment risks, including those relating to the custody and settlement infrastructure or the servicing of securities in such jurisdictionFund's shareholders. 2.3 The Fund and the General Partner shall safeguard and shall solely be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides themit, except that the Fund shall not be responsible where the Custodian has been negligent in the safekeeping of such devices or statements of account. In furtherance and not limitation of the foregoing, in the event the Fund and/or the General Partner utilizes any on-line service offered by the Custodian, the Fund, the General Partner Fund and the Custodian shall be fully responsible for the security of each party’s respective 's connecting terminal, access thereto and the proper and authorized use thereof thereof, and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner shall be solely responsible for ensuring the security of their access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General Partner, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund and the General Partner.

Appears in 2 contracts

Samples: Custodian Agreement (Schwab Annuity Portfolios), Custodian Agreement (Schwab Capital Trust)

Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following: 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) Instruction, such Instruction will have been, duly authorized, executed and delivered by the Fund and the General PartnerFund. This Agreement does not violate Neither this Agreement, nor any Instruction issued hereunder violates any Applicable Law (as defined in Section 13) or conflict conflicts with or constitute constitutes a default under the applicable Portfolio’s prospectus, the Fund’s prospectus organizational documents or other organic document, any agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it Portfolio or its Investments is bound. 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund has (a) assessed and accepted all material Country, Sanctions or Sovereign Risks and accepted responsibility for their occurrence, (b) made all determinations required to be made by the Fund under Applicable Lawthe 1940 Act, except those appropriately delegated to the Custodian in the Delegation Schedule, and (biii) appropriately and if appropriate, adequately disclosed to its unitholders and all persons who have rights in or to such Investments, all the material investment risksrisks of such Investment, including those relating to Country Risks. Nothing in this Section 2.2 shall relieve the custody and settlement infrastructure or the servicing Custodian of securities in such jurisdictionits responsibilities under Section 8.2 of this Agreement. 2.3 The Fund and the General Partner shall safeguard and shall solely be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides themit. In furtherance and not limitation of the foregoing, in the event If the Fund and/or the General Partner utilizes any on-line service offered by the Custodian, the Fund, the General Partner and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner Custodian each shall be solely responsible for ensuring the security of their its access to the service and for the authorized use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General PartnerFund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund. 2.4 By providing an Instruction in respect of an Investment (which Instruction may relate to among other things, the processing of orders and/or settlement of transactions in funds), the Fund hereby (i) authorizes BBH&Co. to complete such documentation as may be required or appropriate to carry out the Instruction, and agrees to be contractually bound to the terms of such documentation “as is” without recourse against BBH&Co.; (ii) represents, warrants and covenants that it has accepted and agreed to comply with all Applicable Law, terms and conditions to which it and/or its Investment may be bound, including without limitation, requirements imposed by the Investment prospectus or offering circular, subscription agreement, any application or other documentation relating to an Investment (e.g., compliance with suitability requirements and eligibility restrictions and requirements that all such documentation relating to the investment has been received, read and understood by the Fund (for itself and/or its customer); (iii) acknowledges and agrees that BBH&Co. will not be responsible for the accuracy of any information provided to BBH&Co. by or on behalf of the Fund, or for any underlying commitment or obligation inherent to an Investment; (iv) except as otherwise provided for in Section 2.4.1, represents, warrants and covenants that it will not effect any sale, transfer or disposition of Investment(s) held in BBH&Co.’s name by any means other than the issuance of an Instruction by the Fund to BBH&Co.; (v) acknowledges that collective investment pools (and/or their agent(s)) in which the Fund invests may pay to BBH&Co. certain fees (including without limitation, shareholder servicing and/or trailer fees) in respect of the Fund’s investments in such pools; (vi) agrees that BBH&Co. shall have no obligation or responsibility whatsoever to respond to, or provide capital in connection with any capital calls, letters of intent of other requirements as set out in the prospectus or offering circular of an Investment; (vii) represents, warrants and covenants that it will provide BBH&Co. with such information as is necessary or appropriate to enable BBH&Co.’s performance pursuant to an Instruction or under this Agreement; (viii) undertakes to inform BBH&Co. and to keep the same updated as any tax withholding or benefit to which an Investment may be subject; (ix) authorizes BBH&Co. to furnish the customer due diligence records maintained by BBH&Co. on the Fund and its beneficial owners to the General Partnertransfer agent or other agent of an issuer of an Investment to satisfy regulatory obligations; (x) represents and warrants that to the extent the Fund provides BBH&Co. with any personal data or personally identifiable information in connection with an Investment, the Fund will have obtained the consent of the applicable individuals to provide such data and information to BBH&Co. and the Fund and to the use of such data and information as described in the applicable account opening, subscription and related Fund documentation; (xi) acknowledges that BBH&Co. shall have no obligation to fund any order placed by the Fund for which the Fund does not have sufficient cash on deposit with BBH&Co.; and (xii) agrees that BBH&Co. shall be held harmless for the acts, omissions or any unlawful activity of any agent of the Fund, or any transfer agent or other agent of an Investment in which the Fund may invest. 2.4.1 To the extent that the Fund holds Investments in an account opened in the name of BBH&Co. as custodian for and at the direction of the Fund, and the Fund requests that BBH&Co. provide the Fund with the capability to place orders in fund shares directly with such fund companies and/or their transfer agents which shall be settled in an account established with each such fund company or its transfer agent, the Fund hereby acknowledges that BBH&Co. is under no obligation to agree to such arrangement but if BBH&Co. so agrees, the Fund (i) acknowledges that all relevant terms under Section 2.4 above apply thereto, (ii) authorizes BBH&Co. as custodian, to grant a limited power of attorney to the Fund or its designated agent to enable the Fund to place orders in fund shares directly with the fund companies and/or their transfer agents, (iii) agrees to ensure that any instructions issued by the Fund or its designated agent shall also be concurrently submitted to BBH&Co., and (iv) shall adhere to any BBH&Co. procedures established with each such fund or its transfer agent with respect thereto including, but not limited to, the terms of the limited power of attorney. The Fund also acknowledges and agrees that (1) BBH&Co. is acting solely in its capacity as custodian and is not acting as a broker or introducing broker on behalf of the Fund, (2) BBH&Co. is not receiving compensation in connection with the Fund’s own execution hereunder of trades with each such fund other than its usual and customary custody fees and transaction charges, (3) it will provide such account opening information to each such fund and/or transfer agent as and when requested by such fund and/or transfer agent, and (4) BBH&Co. is not responsible for (a) providing information published by the relevant distributor of each such fund including, but not limited to, the prospectus for each such Investment in a fund or for resolving execution queries or complaints relative to any such Investment, and (b) assessing the suitability of any such Investment placed directly by the Fund. 2.5 The Fund represents and warrants that it is not resident in or organized under the laws of any country with which transactions or dealings are prohibited under a Sanctions Regime. The Fund further warrants that it is not owned or controlled by: (i) the government of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) a person or entity resident in or organized under the laws of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; or (iii) any person or entity on the List of Specially Designated Nationals and Blocked Persons published by OFAC or any comparable Sanctions Regime lists. 2.5.1 The Fund represents and warrants that it conducts ongoing screening of its holdings, relevant transactional activity, and service providers engaged by the Fund, including but not limited to Authorized Participants and distributors, against lists promulgated by a Sanctions Regime, as such lists are amended from time to time. 2.5.2 The Fund represents and warrants that it has implemented adequate risk management, control and compliance procedures and systems to ensure that it will not instruct or otherwise cause Custodian to hold any assets in custody that would violate a Sanctions Regime. The Fund further represents it will not instruct Custodian to invest in any asset, nor engage in or facilitate any transaction that would cause Custodian to violate any Sanctions Regime, including any transaction or dealing involving: (i) any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) any person or entity subject to any Sanctions Regime; or (iii) any assets owned or controlled by a person or entity that is subject to any Sanctions Regime (collectively, “Sanctioned Property”). The Fund further represents and warrants that it has confirmed that relevant service providers engaged by the Fund, including but not limited to Authorized Participants and distributors, have implemented equivalent controls as stated above. The Fund further represents and warrants that it will promptly notify the Custodian in writing if either it or any of the above relevant service providers becomes subject to a Sanctions Regime or if any of the assets custodied by BBH subsequently becomes Sanctioned Property. 2.6 The Fund represents and warrants that it has developed and implemented an anti-money laundering (“AML”) program (“AML Program”) that is designed to comply with all applicable AML and terrorist financing laws and regulations, including but not limited to: the United States Bank Secrecy Act, as amended by the USA PATRIOT Act of 2001, and the regulations promulgated thereunder; the 4th European Union Anti-Money Laundering Directive; or Financial Action Task Force (“FATF”) standards against money laundering and terrorist financing (collectively, “applicable AML laws”). The Fund represents and warrants that its AML Program includes proper due diligence on relevant service providers, including but not limited to Authorized Participants and distributors, and confirmation that such service providers have implemented their own policies and procedures designed to comply with applicable AML laws. The Fund further represents and warrants that it creates and maintains all records and documentation required by applicable AML laws, including identification and verification records of the Fund’s customers. 2.6.1 The Fund acknowledges that the Custodian is obligated under applicable US AML Laws to obtain, verify and record identifying information about its customers prior to opening an account. 2.6.2 The Fund represents and warrants that upon request, it will provide the Custodian with information that the Custodian requires to comply with applicable AML Laws and Sanctions Regimes, including but not limited to, verification regarding the AML and Sanctions Regime controls implemented by the above relevant service providers. 2.6.3 The Fund further represents and warrants that it will not instruct or otherwise cause Custodian to hold any assets in custody or engage in or facilitate any transaction that would cause Custodian to violate any applicable AML laws. 2.7 The Fund represents and warrants that it is not a “Plan” (which term includes (1) employee benefit plans that are subject to the United States (“US”) Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the US Internal Revenue Code of 1986, as amended (the “Code”), (2) plans, individual retirement accounts and other arrangements that are subject to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, and (3) entities the underlying assets of which are considered to include “plan assets” of such plans, accounts and arrangements), or an entity purchasing shares on behalf of, or with the “plan assets” of, a Plan, and further undertakes to inform BBH&Co. and to keep the same updated as to the status under ERISA or Section 4975 of the Code, each as amended, of the Fund. 2.8 Notwithstanding anything in this Agreement to contrary effect, the Fund specifically represents and warrants to the Custodian that it shall at all times be principally liable for the repayment of any Advance made by the Custodian under this Agreement. 2.9 The Fund represents and warrants that it will promptly notify the Custodian in writing if any of the above representations cease to be true.

Appears in 2 contracts

Samples: Custodian Agreement (Investment Managers Series Trust II), Custodian Agreement (Investment Managers Series Trust II)

Representations, Warranties and Covenants of the Fund. The Trust and each Fund and the General Partner each hereby represents, warrants and covenants each of the following: 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) such Instruction will have been, duly authorized, executed and delivered by the Fund and the General PartnerTrust. This Neither this Agreement does not violate nor any Instruction issued thereunder violates any Applicable Law (as defined in Section 13) or conflict conflicts with or constitute constitutes a default under the Fund’s prospectus 's prospectus, declaration of trust or other organic document, constitutive document or any agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it or its Investments is bound. 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund has (a) understands and accepts all material Country, Sanctions or Sovereign Risks and accepts responsibility for their occurrence, (b) made all determinations required to be made by the Fund under Applicable Lawthe 1940 Act, and (biii) appropriately and adequately disclosed to its unitholders shareholders, other investors and all persons who have rights in or to such Investments, all material investment risks, including those relating to the custody and settlement infrastructure or the servicing of securities in such jurisdiction. 2.3 The Fund and the General Partner shall safeguard and shall solely be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides themit. In furtherance and not limitation of the foregoing, in the event If the Fund and/or the General Partner utilizes any on-line service offered by the Custodian, the Fund, the General Partner and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner shall be solely responsible for ensuring the security of their its access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General PartnerFund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund. 2.4 Notwithstanding anything in this Agreement to contrary effect, the Fund specifically represents and warrants to the Custodian that it shall at all times be principally liable for the repayment of any Advance made by the Custodian under this Agreement. 2.5 By providing an Instruction in respect of an Investment (which Instruction may relate to among other things, the processing of orders and/or settlement of transactions in funds), the Fund hereby (i) authorizes BBH&Co. to complete such documentation as may be required or appropriate to carry out the Instruction, and agrees to be contractually bound to the terms of such documentation “as is” without recourse against BBH&Co. subject to BBH&Co. complying with the standard of care set forth in Section 9 herein in regard to completing such documentation; (ii) represents, warrants and covenants that the Fund (for itself and/or its customers) has accepted and agreed to comply with all Applicable Law, terms and conditions to which it and/or its Investment may be bound, including without limitation, requirements imposed by the Investment prospectus or offering circular, subscription agreement, any application or other documentation relating to an Investment (e.g., compliance with suitability requirements and eligibility restrictions and requirements that all such documentation relating to the investment has been received, read and understood); (iii) acknowledges and agrees that BBH&Co. will not be responsible for the accuracy of any information provided to it by or on behalf of the Fund, or for any underlying commitment or obligation inherent to an Investment; (iv) except as otherwise provided for in Section 2.5.1, represents, warrants and covenants that it will not effect any sale, transfer or disposition of Investment(s) held in BBH&Co.’s name by any means other than the issuance of an Instruction by the Fund to BBH&Co.; (v) acknowledges that collective investment schemes (and/or their agent(s)) in which the Fund invests may pay to BBH&Co. certain fees (including without limitation, shareholder servicing and/or trailer fees) in respect of the Fund’s investments in such schemes; (vi) agrees that BBH&Co. shall have no obligation or responsibility whatsoever to respond to, or provide capital in connection with any capital calls, letters of intent or other requirements as set out in the prospectus or offering circular of an Investment, unless instructed to do so by the Fund and the General PartnerFund has sufficient cash on deposit with BBH&Co. to fund such requirements; (vii) represents, warrants and covenants that it will provide BBH&Co. with such information as is necessary or appropriate to enable BBH&Co.’s performance pursuant to an Instruction or under this Agreement; (viii) undertakes to inform BBH&Co. and to keep the same updated as to any tax withholding or benefit to which an Investment may be subject; (ix) authorizes BBH&Co. to furnish the customer due diligence records maintained by BBH&Co. on the Fund (for itself and/or its customers) and their beneficial owners upon request of the transfer agent or other agent of an issuer of an Investment; (x) represents and warrants that to the extent the Fund provides BBH&Co. with any personal data or personally identifiable information in connection with an Investment, the Fund will have obtained the consent of the applicable individuals, to the extent required under Applicable Law, to provide such data and information to BBH&Co. and the fund and to the use of such data and information only to the extent such use is necessary to process an Instruction with respect to the Investment; and (xi) acknowledges that BBH&Co. shall have no obligation to fund any order placed by the Fund for which the Fund does not have sufficient cash on deposit with BBH&Co. 2.5.1 To the extent that the Fund holds Investments in an account opened in the name of BBH&Co. as custodian for and at the direction of the Fund, and the Fund requests that BBH&Co. provide the Fund with the capability to place orders in fund shares directly with such fund companies and/or their transfer agents which shall be settled in an account established with each such fund company or its transfer agent, the Fund hereby acknowledges that BBH&Co. is under no obligation to agree to such arrangement but if BBH&Co. so agrees, the Fund (i) acknowledges that all relevant terms under Section 2.4 above apply thereto, (ii) authorizes BBH&Co. as custodian, to grant a limited power of attorney to the Fund or its designated agent to enable the Fund to place orders in fund shares directly with the fund companies and/or their transfer agents, (iii) agrees to ensure that any instructions issued by the Fund or its designated agent shall also be concurrently submitted to BBH&Co., and (iv) shall adhere to any BBH&Co. procedures established with each such fund or its transfer agent with respect thereto including, but not limited to, the terms of the limited power of attorney. The Fund also acknowledges and agrees that (1) BBH&Co. is acting solely in its capacity as custodian and is not acting as a broker or introducing broker on behalf of the Fund, (2) BBH&Co. is not receiving compensation in connection with the Fund’s own execution hereunder of trades with each such fund other than its usual and customary custody fees and transaction charges, (3) it will provide such account opening information to each such fund and/or transfer agent as and when requested by such fund and/or transfer agent, and (4) BBH&Co. is not responsible for (a) providing information published by the relevant distributor of each such fund including, but not limited to, the prospectus for each such Investment in a fund or for resolving execution queries or complaints relative to any such Investment, and (b) assessing the suitability of any such Investment placed directly by the Fund. 2.6 The Fund represents and warrants that it is not resident in or organized under the laws of any country with which transactions or dealings are prohibited under a Sanctions Regime. The Fund further warrants that it is not owned or controlled by: (i) the government of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) a person or entity resident in or organized under the laws of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; or (iii) any person or entity on the List of Specially Designated Nationals and Blocked Persons published by OFAC or any comparable Sanctions Regime lists. 2.6.1 The Fund represents and warrants that either the Fund or its service providers conduct ongoing screening of the Fund’s investors and their transactional activity against lists promulgated by a Sanctions Regime, as such lists are amended from time to time. 2.6.2 The Fund represents and warrants that it has implemented adequate risk management, control and compliance procedures and systems to ensure that it will not instruct or otherwise cause Custodian to hold any assets in custody that would violate a Sanctions Regime. The Fund further represents it will not invest in, engage in, or facilitate any transaction that would cause Custodian to violate any Sanctions Regime, including any transaction or dealing involving: (i) any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) any person or entity subject to any Sanctions Regime; or (iii) any assets owned or controlled by a person or entity that is subject to any Sanctions Regime (collectively, “Sanctioned Property”). The Fund further represents and warrants that it will promptly notify the Custodian in writing if either it or any of its underlying investors whose assets are held by the Custodian becomes subject to a Sanctions Regime or holds assets that subsequently became Sanctioned Property. 2.7 The Fund represents and warrants that it has developed and implemented an anti-money laundering (“AML”) program (“AML Program”) that is designed to comply with all applicable AML and terrorist financing laws and regulations, including but not limited to: the United States Bank Secrecy Act, as amended by the USA PATRIOT Act of 2001, and the rules and guidance of any applicable self-regulatory organization (collectively, “applicable AML laws”). The Fund represents and warrants that its AML Program, or the AML Programs of its service providers, include a written Customer Identification Program (“CIP”) that identifies and verifies the Fund’s investors, including beneficial owners, as required by applicable AML laws. The Fund further represents and warrants that its AML Program, or the AML Programs of its service providers, include policies, procedures and controls designed to ensure that: (i) none of the Fund’s investors are prohibited banks that fail to maintain a physical presence in any country (a “Shell Bank”); (ii) enhanced due diligence is conducted on investors identified as Politically Exposed Persons, which includes ascertaining source of wealth for such investors; (iii) ongoing monitoring is conducted to identify and report suspicious activity; and (iv) the Fund or its service providers create and maintain all records and documentation required by applicable AML laws, including identification and verification records of the Fund’s investors. 2.7.1 The Fund acknowledges that the Custodian is obligated under applicable US AML Laws to obtain, verify and record identifying information about its customers prior to opening an account. 2.7.2 The Fund represents and warrants that upon request, it will provide the Custodian with information that the Custodian requires to comply with applicable AML Laws and Sanctions Regimes. 2.7.3 The Fund further represents and warrants that it will not instruct or otherwise cause Custodian to hold any assets in custody or engage in or facilitate any transaction that would cause Custodian to violate any applicable AML laws. 2.8 The Fund represents and warrants that it is not a “Plan” (which term includes (1) employee benefit plans that are subject to the United States (“US”) Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the US Internal Revenue Code of 1986, as amended (the “Code”), (2) plans, individual retirement accounts and other arrangements that are subject to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, and (3) entities the underlying assets of which are considered to include “plan assets” of such plans, accounts and arrangements), or an entity purchasing shares on behalf of, or with the “plan assets” of, a Plan, and further undertakes to inform BBH&Co. and to keep the same updated as to the status under ERISA or Section 4975 of the Code, each as amended, of the Fund, or (4) the assets of any plan or other retirement arrangement or account that is not subject to Section 4975 of the Code or Title I of ERISA but is subject to any U.S. federal, state or local law or regulation or any non-U.S. or other law or regulation that contains one or more provisions that are similar to any of the fiduciary responsibility or prohibited transaction provisions under Title I of ERISA or Section 4975 of the Code. 2.9 The Fund represents and warrants that it will promptly notify the Custodian in writing if any of the above representations cease to be true.

Appears in 2 contracts

Samples: Custodian Agreement (Catholic Responsible Investments Funds), Custodian Agreement (Frost Family of Funds)

Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following: 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) such Instruction will have been, duly authorized, executed and delivered by the Fund and the General PartnerFund. This Agreement does not violate any Applicable Law (as defined in Section 13) or conflict with or constitute a default under the Fund’s prospectus or other organic document, agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it or its Investments is bound. 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund Fund, or its delegate or agent, has (a) made assessed and accepted all determinations required to be made by the Fund under Applicable Lawmaterial Country or Sovereign Risks and accepted responsibility for their occurrence and will, and (b) appropriately and adequately where appropriate, ensure that such risks are disclosed to its unitholders and all persons who have rights in or to such Investments, all material investment risks, including those relating to the custody and settlement infrastructure or the servicing of securities in such jurisdictionFund’s shareholders. 2.3 The Fund and the General Partner shall safeguard and shall solely be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides themit, except that the Fund shall not be responsible where the Custodian has been negligent in the safekeeping of such devices or statements of account. In furtherance and not limitation of the foregoing, in the event the Fund and/or the General Partner utilizes any on-line service offered by the Custodian, the Fund, the General Partner Fund and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof thereof, and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner shall be solely responsible for ensuring the security of their access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General Partner, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund and the General Partner.

Appears in 1 contract

Samples: Custodian Agreement (Schwab Investments)

Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following: 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) such Instruction will have been, duly authorized, executed and delivered by the Fund and the General Partner. This Agreement does not violate any Applicable Law (as defined in Section 13) or conflict with or constitute a default under the Fund’s 's prospectus or other organic document, agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it or its Investments is bound. 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund has (a) made all determinations required to be made by the Fund under Applicable Law, and (b) appropriately and adequately disclosed to its unitholders and all persons who have rights in or to such Investments, all material investment risks, including those relating to the custody and settlement infrastructure or the servicing of securities in such jurisdiction. 2.3 The Fund and the General Partner shall safeguard and shall solely be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides themit. In furtherance and not limitation of the foregoing, in the event the Fund and/or the General Partner utilizes any on-line service offered by the Custodian, the Fund, the General Partner and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner shall be solely responsible for ensuring the security of their its access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General Partner, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund and the General Partner.

Appears in 1 contract

Samples: Custodian Agreement (United States Oil Fund, LP)

Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following: 2.1 2.1. This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) such Instruction will have been, duly authorized, executed and delivered by the Fund and the General PartnerFund. This Agreement does not violate any Applicable Law (as defined in Section 13) or conflict with or constitute a default under the Fund’s 's prospectus or other organic document, agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it or its Investments is bound. 2.2 2.2. By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund has (a) assessed and accepted all material Country or Sovereign Risks (as defined in Section 9.1) and accepted responsibility for their occurrence, (b) made all determinations required to be made by the Fund under Applicable Lawthe 1940 Act, and (biii) appropriately and adequately disclosed to its unitholders shareholders, other investors and all persons who have rights in or to such Investments, all material investment risks, including those relating to the custody and settlement infrastructure or the servicing of securities in such jurisdiction. 2.3 2.3. The Fund and the General Partner shall safeguard and shall solely be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides themit. In furtherance and not limitation of the foregoing, in the event the Fund and/or the General Partner utilizes any on-line service offered by the Custodian, each of the Fund, the General Partner Fund and the Custodian shall be fully responsible for the security of each party’s respective its connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner shall be solely responsible for ensuring the security of their its access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s 's computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General PartnerFund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund and the General PartnerFund.

Appears in 1 contract

Samples: Custodian Agreement (Mackenzie Solutions)

Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following: 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) Instruction, such Instruction will have been, duly authorized, executed and delivered by the Fund and the General PartnerFund. This Neither this Agreement does not violate nor any Instruction issued thereunder violates any Applicable Law (as defined in Section 13) or conflict conflicts with or constitute constitutes a default under the Fund’s prospectus prospectus, articles of organization or any other organic constitutive document, agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it or its Investments is bound. 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund has (a) assessed and accepted all material Country Risk, Sovereign Risk, and AML and Sanctions Risk (each as defined in Section 9.1.2 of this Agreement) and accepted responsibility for their occurrence, (b) made all determinations required to be made by the Fund under Applicable Law, and (bc) appropriately and adequately disclosed to its unitholders shareholders, other investors and all persons who have rights in or to such Investments, all material investment risks, including those relating to the custody and settlement infrastructure or the servicing of securities in such jurisdiction. 2.3 The Fund and the General Partner shall safeguard and shall solely be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides themit. In furtherance and not limitation of the foregoing, in the event the Fund and/or the General Partner utilizes any on-line online service offered by the Custodian, the Fund, the General Partner Fund and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line online or similar communications service made available by the Custodian, the Fund and the General Partner shall be solely responsible for ensuring the security of their its access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General PartnerFund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund. 2.4 Notwithstanding anything in this Agreement to contrary effect, the Fund specifically represents and warrants to the Custodian that it shall at all times be principally liable for the repayment of any Advance made by the Custodian under this Agreement. 2.5 By providing an Instruction in respect of an Investment (which Instruction may relate to among other things, the processing of orders and/or settlement of transactions in funds), the Fund hereby: (i) authorizes BBH&Co. to complete such documentation as may be required or appropriate to carry out the Instruction, and agrees to be contractually bound to the terms of such required or appropriate documentation “as is” without recourse against BBH&Co. except in the case (and to the extent) of damages resulting solely and directly from the fraud, bad faith, willful malfeasance, or negligence of BBH&Co. in the performance of its duties and obligations under this Agreement; (ii) represents, warrants and covenants that the Fund (for itself and/or its customers) has accepted and agreed to comply with all Applicable Law, terms and conditions to which it and/or its Investment may be bound, including without limitation, requirements imposed by the Investment prospectus or offering circular, subscription agreement, any application or other documentation relating to an Investment (e.g., compliance with suitability requirements and eligibility restrictions and requirements that all such documentation relating to the investment has been received, read and understood); (iii) acknowledges and agrees that BBH&Co. will not be responsible for the accuracy of any information provided to it by or on behalf of the Fund, or for any underlying commitment or obligation inherent to an Investment; (iv) except as otherwise provided for in Section 2.5.1, represents, warrants and covenants that it will not effect any sale, transfer or disposition of Investment(s) held in BBH&Co.’s name by any means other than the issuance of an Instruction by the Fund to BBH&Co.; (v) acknowledges that collective investment schemes (and/or their agent(s)) in which the Fund invests may pay to BBH&Co. certain fees (including without limitation, shareholder servicing and/or trailer fees) in respect of the Fund’s investments in such schemes; (vi) agrees that BBH&Co. shall have no obligation or responsibility whatsoever to respond to, or provide capital in connection with any capital calls, letters of intent or other requirements as set out in the prospectus or offering circular of an Investment; (vii) represents, warrants and covenants that it will provide BBH&Co. with such information as is necessary or appropriate to enable BBH&Co.’s performance pursuant to an Instruction or under this Agreement; (viii) undertakes to inform BBH&Co. and to keep the same updated as to any tax withholding or benefit to which an Investment may be subject; (ix) authorizes BBH&Co. to furnish the customer due diligence records maintained by BBH&Co. on the Fund (for itself and/or its customers) and their beneficial owners upon request of the transfer agent or other agent of an issuer of an Investment; (x) represents and warrants that to the extent the Fund provides BBH&Co. with any personal data or personally identifiable information in connection with an Investment, the Fund will have obtained the consent of the applicable individuals to provide such data and information to BBH&Co. and the General Partnerfund and to the use of such data and information as described in the applicable account opening, subscription and related fund documentation; (xi) acknowledges that BBH&Co. shall have no obligation to fund any order placed by the Fund for which the Fund does not have sufficient cash on deposit with BBH&Co.; and (xii) agrees that BBH&Co. shall be held harmless for the acts, omissions or any unlawful activity of any agent of the Fund, or any transfer agent or other agent of an Investment in which the Fund may invest, except to the extent any such damages or losses result solely and directly from the fraud, bad faith, willful malfeasance, or negligence of BBH&Co. in the performance of its duties and obligations under this Agreement. 2.5.1 To the extent that the Fund holds Investments in an account opened in the name of BBH&Co. as custodian for and at the direction of the Fund, and the Fund requests that BBH&Co. provide the Fund with the capability to place orders in fund shares directly with such fund companies and/or their transfer agents which shall be settled in an account established with each such fund company or its transfer agent, the Fund hereby acknowledges that BBH&Co. is under no obligation to agree to such arrangement but if BBH&Co. so agrees, the Fund (i) acknowledges that all relevant terms under Section 2.5 above apply thereto, (ii) authorizes BBH&Co. as custodian, to grant a limited power of attorney to the Fund or its designated agent to enable the Fund to place orders in fund shares directly with the fund companies and/or their transfer agents, (iii) agrees to ensure that any instructions issued by the Fund or its designated agent shall also be concurrently submitted to BBH&Co., and (iv) shall adhere to any BBH&Co. procedures established with each such fund or its transfer agent with respect thereto including, but not limited to, the terms of the limited power of attorney. The Fund also acknowledges and agrees that (1) BBH&Co. is acting solely in its capacity as custodian and is not acting as a broker or introducing broker on behalf of the Fund, (2) BBH&Co. is not receiving compensation in connection with the Fund’s own execution hereunder of trades with each such fund other than its usual and customary custody fees and transaction charges, (3) it will provide such account opening information to each such fund and/or transfer agent as and when requested by such fund and/or transfer agent, and (4) BBH&Co. is not responsible for (a) providing information published by the relevant distributor of each such fund including, but not limited to, the prospectus for each such Investment in a fund or for resolving execution queries or complaints relative to any such Investment, and (b) assessing the suitability of any such Investment placed directly by the Fund. 2.6 The Fund represents and warrants that it is not resident in or organized under the laws of any country with which transactions or dealings are prohibited under a Sanctions Regime. The Fund further warrants that it is not 50% (or more) owned or controlled by: (i) the government of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) a person or entity resident in or organized under the laws of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; or (iii) any person or entity on the List of Specially Designated Nationals and Blocked Persons published by OFAC or any comparable Sanctions Regime lists. 2.6.1 The Fund represents and warrants that either the Fund or its service providers conduct ongoing screening of the Fund’s investors and their transactional activity against lists promulgated by a Sanctions Regime, as such lists are amended from time to time. 2.6.2 The Fund represents and warrants that it has implemented adequate risk management, control and compliance procedures and systems to ensure that it will not instruct or otherwise cause Custodian to hold any assets in custody that would violate a Sanctions Regime. The Fund further represents it will not invest in, engage in, or facilitate any transaction that would cause Custodian to violate any Sanctions Regime, including any transaction or dealing involving: (i) any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) any person or entity subject to any Sanctions Regime; or (iii) any assets owned or controlled by a person or entity that is subject to any Sanctions Regime (collectively, “Sanctioned Property”). The Fund further represents and warrants that it will promptly notify the Custodian in writing if either it or any of its underlying investors whose assets are held by the Custodian becomes subject to a Sanctions Regime or holds assets that subsequently became Sanctioned Property. 2.7 The Fund represents and warrants that it has developed and implemented an anti-money laundering (“AML”) program (“AML Program”) that is designed to comply with all applicable AML and terrorist financing laws and regulations, including but not limited to: the United States Bank Secrecy Act, as amended by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“USA PATRIOT Act of 2001”), and the rules and guidance of any applicable self-regulatory organization (collectively, “applicable AML laws”). The Fund represents and warrants that its AML Program, or the AML Programs of its service providers, include a written Customer Identification Program (“CIP”) that identifies and verifies the Fund’s investors, including beneficial owners, as required by applicable AML laws. The Fund further represents and warrants that its AML Program, or the AML Programs of its service providers, include policies, procedures and controls designed to ensure that: (i) none of the Fund’s investors are prohibited banks that fail to maintain a physical presence in any country (a “Shell Bank”); (ii) enhanced due diligence is conducted on investors identified as Politically Exposed Persons, as defined in the Fund’s AML Program, which includes ascertaining source of wealth for such investors; (iii) ongoing monitoring is conducted to identify and report suspicious activity; and (iv) the Fund or its service providers create and maintain all records and documentation required by applicable AML laws, including identification and verification records of the Fund’s investors. 2.7.1 The Fund acknowledges that the Custodian is obligated under applicable US AML Laws to obtain, verify and record identifying information about its customers prior to opening an account. 2.7.2 The Fund represents and warrants that upon request, it will provide the Custodian with information that the Custodian requires to comply with applicable AML Laws and Sanctions Regimes. 2.7.3 The Fund further represents and warrants that it will not instruct or otherwise cause Custodian to hold any assets in custody or engage in or facilitate any transaction that would cause Custodian to violate any applicable AML laws. 2.8 The Fund represents and warrants that it is not a “Plan” (which term includes (1) employee benefit plans that are subject to the United States (“US”) Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the US Internal Revenue Code of 1986, as amended (the “Code”); (2) plans, individual retirement accounts and other arrangements that are subject to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code; and (3) entities the underlying assets of which are considered to include “plan assets” of such plans, accounts and arrangements), or an entity purchasing shares on behalf of, or with the “plan assets” of, a Plan, and further undertakes to inform BBH&Co. and to keep the same updated as to the status under ERISA or Section 4975 of the Code of the Fund, or (4) the assets of any plan or other retirement arrangement or account that is not subject to Section 4975 of the Code or Title I of ERISA but is subject to any US federal, state or local law or regulation or any non-US or other law or regulation that contains one or more provisions that are similar to any of the fiduciary responsibility or prohibited transaction provisions under Title I of ERISA or Section 4975 of the Code. 2.9 The Fund further represents and warrants that it will promptly notify the Custodian in writing if any of the above representations and warranties cease to be true.

Appears in 1 contract

Samples: Custodian Agreement (HL Scope RIC LLC)

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Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following: 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) such Instruction will have been, duly authorized, executed and delivered by the Fund and the General Partner. This Agreement does not violate any Applicable Law (as defined in Section 13) or conflict with or constitute a default under the Fund’s prospectus or other organic document, agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it or its Investments is bound. 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund has (a) made all determinations required to be made by the Fund under Applicable Law, and (b) appropriately and adequately disclosed to its unitholders and all persons who have rights in or to such Investments, all material investment risks, including those relating to the custody and settlement infrastructure or the servicing of securities in such jurisdiction. 2.3 The Fund and the General Partner shall safeguard and shall solely be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides themit. In furtherance and not limitation of the foregoing, in the event the Fund and/or the General Partner utilizes any on-line service offered by the Custodian, the Fund, the General Partner and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner shall be solely responsible for ensuring the security of their its access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General Partner, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund and the General Partner.

Appears in 1 contract

Samples: Custodian Agreement (United States Oil Fund, LP)

Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following: 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) such Instruction will have been, duly authorized, executed and delivered by the Fund and the General PartnerFund. This Neither this Agreement does not violate nor any Instruction issued thereunder violates any Applicable Law (as defined in Section 13) or conflict conflicts with or constitute constitutes a default under the Fund’s prospectus prospectus, declaration of trust or other organic document, constitutive document or any agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it or its Investments is bound. 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund has (a) assessed and accepted all material Country, Sanctions or Sovereign Risks and accepted responsibility for their occurrence, (b) made all determinations required to be made by the Fund under Applicable Lawthe 1940 Act, and (biii) appropriately and adequately disclosed to its unitholders shareholders, other investors and all persons who have rights in or to such Investments, all material investment risks, including those relating to the custody and settlement infrastructure or the servicing of securities in such jurisdiction. 2.3 The Fund and the General Partner shall safeguard and shall solely be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides themit. In furtherance and not limitation of the foregoing, in the event If the Fund and/or the General Partner utilizes any on-line service offered by the Custodian, the Fund, the General Partner and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner shall be solely responsible for ensuring the security of their its access to the service and for the its use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General PartnerFund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund. 2.4 By providing an Instruction in respect of an Investment (which Instruction may relate to among other things, the execution and/or settlement of trades), the Fund hereby (i) authorizes BBH&Co. to complete such documentation as may be required or appropriate for the execution of the Instruction, and agrees to be contractually bound to the terms of such documentation “as is” without recourse against BBH&Co.; (ii) represents, warrants and covenants that it has accepted and agreed to comply with all Applicable Law, terms and conditions to which it and/or its Investment may be bound, including without limitation, requirements imposed by the Investment prospectus or offering circular, subscription agreement, any application or other documentation relating to an Investment (e.g., compliance with suitability requirements and eligibility restrictions); (iii) acknowledges and agrees that BBH&Co. will not be responsible for the accuracy of any information provided to it by or on behalf of the Fund, or for any underlying commitment or obligation inherent to an Investment; (iv) except as otherwise provided for in Section 2.4.1, represents, warrants and covenants that it will not effect any sale, transfer or disposition of Investment(s) held in BBH&Co.’s name by any means other than the issuance of an Instruction by the Fund to BBH&Co.; (v) acknowledges that collective investment schemes (and/or their agent(s)) in which the Fund invests may pay to BBH&Co. certain fees (including without limitation, shareholder servicing and/or trailer fees) in respect of the Fund’s investments in such schemes; (vi) agrees that BBH&Co. shall have no obligation or responsibility whatsoever to respond to, or provide capital in connection with any capital calls, letters of intent of other requirements as set out in the prospectus or offering circular of an Investment; (vii) represents, warrants and covenants that it will provide BBH&Co. with such information as is necessary or appropriate to enable BBH&Co.’s performance pursuant to an Instruction or under this Agreement; (viii) represents that it is not a “Plan” (which term includes (1) employee benefit plans that are subject to the United States (“US”) Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the US Internal Revenue Code of 1986, as amended (the “Code”), (2) plans, individual retirement accounts and other arrangements that are subject to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, and (3) entities the underlying assets of which are considered to include “plan assets” of such plans, accounts and arrangements), or an entity purchasing shares on behalf of, or with the “plan assets” of, a Plan; (ix) undertakes to inform BBH&Co. and to keep the same updated as to the status under ERISA or Section 4975 of the Code, each as amended, of the beneficial investor to the Investment, and as to any tax withholding or benefit to which an Investment may be subject; (x) acknowledges that BBH&Co. shall have no obligation to fund any order placed by the Fund for which the Fund does not have sufficient cash on deposit with BBH&Co.; and (xi) agrees that BBH&Co. shall be held harmless, for the acts, omissions or any unlawful activity of any agent of the Fund, or any transfer agent or other agent of an Investment in which the Fund may invest. 2.4.1 To the extent that the Fund holds Investments in an account opened in the name of BBH&Co. as custodian for and at the direction of the Fund, and the General PartnerFund requests that BBH&Co. provide the Fund with the capability to place orders and execute trades in fund shares directly with such fund companies and/or their transfer agents which shall be settled in an account established with each such fund company or its transfer agent, the Fund hereby acknowledges that BBH&Co. is under no obligation to agree to such arrangement but if BBH&Co. so agrees, the Fund (i) acknowledges that all relevant terms under Section 2.4 above apply thereto, (ii) authorizes BBH&Co. as custodian, to grant a limited power of attorney to the Fund or its designated agent to enable the Fund to so execute, (iii) agrees to ensure that any instructions issued by the Fund or its designated agent shall also be concurrently submitted to BBH&Co., and (iv) shall adhere to any BBH&Co. procedures established with each such fund or its transfer agent with respect thereto including, but not limited to, the terms of the limited power of attorney. The Fund also acknowledges and agrees that (1) BBH&Co. is acting solely in its capacity as custodian and is not acting as a broker or introducing broker on behalf of the Fund, (2) BBH&Co. is not receiving compensation in connection with the Fund’s execution hereunder of trades with each such fund other than its usual and customary custody fees and transaction charges, (3) it will provide such account opening information to each such fund and/or transfer agent as and when requested by such fund and/or transfer agent, and (4) BBH&Co. is not responsible for (a) providing information published by the relevant distributor of each such fund including, but not limited to, the prospectus for each such Investment in a fund or for resolving execution queries or complaints relative to any such Investment, and (b) assessing the suitability of any such Investment executed directed by the Fund. 2.7 The Fund represents and warrants that it is not resident in or organized under the laws of any country with which transactions or dealings are prohibited under a Sanctions Regime. The Fund further warrants that it is not owned or controlled by: (i) the government of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) a person or entity resident in or organized under the laws of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; or (iii) any person or entity on the List of Specially Designated Nationals and Blocked Persons published by OFAC or any comparable Sanctions Regime lists . 2.8 The Fund represents and warrants that it will not instruct or otherwise cause Custodian to hold any assets in custody or to engage in or facilitate any transaction that would cause Custodian to violate any Sanctions Regime, including any transaction or dealing with or involving (i) any person or entity subject to any Sanctions Regime, or (ii) any assets owned or controlled by a person or entity that is subject to any Sanctions Regime, or any fund or other investment vehicle that is invested in such assets in violation of any Sanctions Regime (collectively, the “Sanctioned Property”). The Fund further represents and warrants that it will not instruct or cause Custodian to engage in any foreign exchange transaction related to any Sanctioned Property.

Appears in 1 contract

Samples: Custodian Agreement (USCF ETF Trust)

Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following: 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) such Instruction will have been, duly authorized, executed and delivered by the Fund and the General Partner. This Agreement does not violate any Applicable Law (as defined in Section 13) or conflict with or constitute a default under the Fund’s prospectus or other organic document, agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it or its Investments is bound. 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund has (a) made all determinations required to be made by the Fund under Applicable Law, and (b) appropriately and adequately disclosed to its unitholders and all persons who have rights in or to such Investments, all material investment risks, including those relating to the custody and settlement infrastructure or the servicing of securities in such jurisdiction. 2.3 The Fund and the General Partner shall safeguard and shall be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides them. In furtherance and not limitation of the foregoing, in the event the Fund and/or the General Partner utilizes any on-line service offered by the Custodian, the Fund, the General Partner and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner shall be solely responsible for ensuring the security of their access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General Partner, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund and the General Partner. 2.4 By providing an Instruction in respect of an Investment (which Instruction may relate to among other things, the execution of trades), the Fund and the General Partner hereby (i) authorize BBH&Co. to complete such documentation as may be required or appropriate for the execution of the Instruction, and agree to be contractually bound to the terms of such documentation “as is” (subject to Section 9 of this Agreement) without recourse against BBH&Co.; (ii) represent, warrant and covenant that the Fund and the General Partner have accepted and agreed to comply with all Applicable Law, terms and conditions to which the Fund and/or the General Partner’s Investment may be bound, including without limitation, requirements imposed by the Investment prospectus or offering circular, subscription agreement, any application or other documentation relating to an Investment (e.g., compliance with suitability requirements and eligibility restrictions); (iii) acknowledge and agree that BBH&Co. will not be responsible for the accuracy of any information provided to the Fund and/or General Partner by or on behalf of the Fund and/or the General Partner, or for any underlying commitment or obligation inherent to an Investment; (iv) represent, warrant and covenant that the Fund and/or General Partner will not effect any sale, transfer or disposition of Investment(s) held in the BBH&Co.’s name by any means other than the issuance of an Instruction by the Fund and/or General Partner to BBH&Co.; (v) acknowledge that collective investment schemes (and/or their agent(s)) in which the Fund and/or General Partner invests may pay to BBH certain fees (including without limitation, shareholder servicing and/or trailer fees) in respect of the Fund’s and/or General Partner’s investments in such schemes; (vi) represent, warrant and covenant that the Fund and/or General Partner will provide BBH&Co. with such information as is necessary or appropriate to enable BBH&Co.’s performance pursuant to an Instruction or under this Agreement; (vii) represent that the Fund is not a “Plan” (which term includes (1) employee benefit plans that are subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the US Internal Revenue Code of 1986, as amended (the “Code”), (2) plans, individual retirement accounts and other arrangements that are subject to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, and (3) entities the underlying assets of which are considered to include “plan assets” of such plans, accounts and arrangements), or an entity purchasing shares on behalf of, or with the “plan assets” of, a Plan; and (viii) undertakes to inform BBH&Co. and to keep the same updated as to its status under ERISA or Section 4975 of the Code, each as amended, of the beneficial investor to the Investment, and as to any tax withholding or benefit to which an Investment may be subject.

Appears in 1 contract

Samples: Custodian Agreement (United States Brent Oil Fund, LP)

Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following: 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) Instruction, such Instruction will have been, duly authorized, executed and delivered by the Fund and the General PartnerFund. This Agreement does not violate Neither this Agreement, nor any Instruction issued hereunder violates any Applicable Law (as defined in Section 13) or conflict conflicts with or constitute constitutes a default under the applicable Portfolio’s prospectus, the Fund’s prospectus articles of organization or other organic document, constitutive documents or any agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it the Fund or its Investments is bound. 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund has (a) assessed and accepted all material Country, Sanctions or Sovereign Risks and accepted responsibility for their occurrence, (b) made all determinations required to be made by the Fund under Applicable Lawthe 1940 Act, and (biii) appropriately and adequately disclosed to its unitholders the respective Portfolio’s shareholders, other investors and all persons who have rights in or to such Investments, all material investment risks, including those relating to the custody and settlement infrastructure or the servicing of securities in such jurisdiction. 2.3 The Fund and the General Partner shall safeguard and shall solely be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides themit. In furtherance and not limitation of the foregoing, in the event If the Fund and/or the General Partner utilizes any on-line service offered by the Custodian, the Fund, the General Partner and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner shall be solely responsible for ensuring the security of their its access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General PartnerFund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund. 2.4 Notwithstanding anything in this Agreement to contrary effect, the Fund specifically represents and warrants to the Custodian that it shall at all times be principally liable for the repayment of any Advance made by the Custodian under this Agreement. 2.5 By providing an Instruction in respect of an Investment (which Instruction may relate to among other things, the processing of orders and/or settlement of transactions in funds), the Fund hereby (i) authorizes BBH&Co. to complete such documentation as may be required or appropriate to carry out the Instruction, and agrees to be contractually bound to the terms of such documentation “as is” without recourse against BBH&Co.; (ii) represents, warrants and covenants that it has accepted and agreed to comply with all Applicable Law, terms and conditions to which it and/or its Investment may be bound, including without limitation, requirements imposed by the Investment prospectus or offering circular, subscription agreement, any application or other documentation relating to an Investment (e.g., compliance with suitability requirements and eligibility restrictions and requirements that all such documentation relating to the investment has been received, read and understood by the Fund (for itself and its Portfolio)); (iii) acknowledges and agrees that BBH&Co. will not be responsible for the accuracy of any information provided to it by or on behalf of the Fund, or for any underlying commitment or obligation inherent to an Investment; (iv) represents, warrants and covenants that it will not effect any sale, transfer or disposition of Investment(s) held in BBH&Co.’s name by any means other than the issuance of an Instruction by the Fund to BBH&Co.; (v) acknowledges that collective investment schemes (and/or their agent(s)) in which the Fund invests may pay to BBH&Co. certain fees (including without limitation, shareholder servicing and/or trailer fees) in respect of the Fund’s investments in such schemes; (vi) agrees that BBH&Co. shall have no obligation or responsibility whatsoever to respond to, or provide capital in connection with any capital calls, letters of intent or other requirements as set out in the prospectus or offering circular of an Investment; (vii) represents, warrants and covenants that it will provide BBH&Co. with such information as is necessary or appropriate to enable BBH&Co.’s performance pursuant to an Instruction or under this Agreement; (viii) undertakes to inform BBH&Co. and to keep the same updated as to any tax withholding or benefit to which an Investment may be subject; (ix) authorizes BBH&Co. to furnish the customer due diligence records maintained by BBH&Co. on the Fund and its beneficial owners upon request of the General Partnertransfer agent or other agent of an issuer of an Investment; (x) represents and warrants that to the extent the Fund provides BBH&Co. with any personal data or personally identifiable information in connection with an Investment, the Fund will have obtained the consent of the applicable individuals to provide such data and information to BBH&Co. and the fund and to the use of such data and information as described in the applicable account opening, subscription and related fund documentation; (xi) acknowledges that BBH&Co. shall have no obligation to fund any order placed by the Fund for which the Fund does not have sufficient cash on deposit with BBH&Co.; and (xii) agrees that BBH&Co. shall be held harmless for the acts, omissions or any unlawful activity of any agent of the Fund, or any transfer agent or other agent of an Investment in which the Fund may invest. 2.6 The Fund represents and warrants that it is not resident in or organized under the laws of any country with which transactions or dealings are prohibited under a Sanctions Regime. The Fund further warrants that it is not owned or controlled by: (i) the government of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) a person or entity resident in or organized under the laws of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; or (iii) any person or entity on the List of Specially Designated Nationals and Blocked Persons published by OFAC or any comparable Sanctions Regime lists. 2.6.1 The Fund represents and warrants that it conducts ongoing screening of its holdings, relevant transactional activity, and service providers engaged by the Fund, including but not limited to Authorized Participants and distributors, against lists promulgated by a Sanctions Regime, as such lists are amended from time to time. 2.6.2 The Fund represents and warrants that it has implemented adequate risk management, control and compliance procedures and systems to ensure that it will not instruct or otherwise cause Custodian to hold any assets in custody that would violate a Sanctions Regime. The Fund further represents it will not instruct Custodian to invest in any asset, nor engage in or facilitate any transaction that would cause Custodian to violate any Sanctions Regime, including any transaction or dealing involving: (i) any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) any person or entity subject to any Sanctions Regime; or (iii) any assets owned or controlled by a person or entity that is subject to any Sanctions Regime (collectively, “Sanctioned Property”). The Fund further represents and warrants that it has confirmed that relevant service providers engaged by the Fund, including but not limited to Authorized Participants and distributors, have implemented equivalent controls as stated above. The Fund further represents and warrants that it will promptly notify the Custodian in writing if either it or any of the above relevant service providers becomes subject to a Sanctions Regime or if any of the assets custodied by BBH subsequently becomes Sanctioned Property. 2.7 The Fund represents and warrants that it has developed and implemented an anti-money laundering (“AML”) program (“AML Program”) that is designed to comply with all applicable AML and terrorist financing laws and regulations, including but not limited to: the United States Bank Secrecy Act, as amended by the USA PATRIOT Act of 2001, and the regulations promulgated thereunder; the 4th European Union Anti-Money Laundering Directive; or Financial Action Task Force (“FATF”) standards against money laundering and terrorist financing (collectively, “applicable AML laws”). The Fund represents and warrants that its AML Program includes proper due diligence on relevant service providers, including but not limited to Authorized Participants and distributors, and confirmation that such service providers have implemented their own policies and procedures designed to comply with applicable AML Laws. The Fund further represents and warrants that it creates and maintains all records and documentation required by applicable AML laws, including identification and verification records of the Fund’s customers. 2.7.1 The Fund acknowledges that the Custodian is obligated under applicable US AML Laws to obtain, verify and record identifying information about its customers prior to opening an account. 2.7.2 The Fund represents and warrants that upon request, it will provide the Custodian with information that the Custodian requires to comply with applicable AML Laws and Sanctions Regimes, including but not limited to, verification regarding the AML and Sanctions Regime controls implemented by the above relevant service providers. 2.7.3 The Fund further represents and warrants that it will not instruct or otherwise cause Custodian to hold any assets in custody or engage in or facilitate any transaction that would cause Custodian to violate any applicable AML laws. 2.8 The Fund represents and warrants that neither it nor any Portfolio is a “Plan” (which term includes (1) employee benefit plans that are subject to the United States (“US”) Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the US Internal Revenue Code of 1986, as amended (the “Code”), (2) plans, individual retirement accounts and other arrangements that are subject to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, and (3) entities the underlying assets of which are considered to include “plan assets” of such plans, accounts and arrangements), or an entity purchasing shares on behalf of, or with the “plan assets” of, a Plan, and further undertakes to inform BBH&Co. and to keep the same updated as to the status under ERISA or Section 4975 of the Code, each as amended, of the Fund, including its Portfolios, or (4) the assets of any plan or other retirement arrangement or account that is not subject to Section 4975 of the Code or Title I of ERISA but is subject to any U.S. federal, state or local law or regulation or any non-U.S. or other law or regulation that contains one or more provisions that are similar to any of the fiduciary responsibility or prohibited transaction provisions under Title I of ERISA or Section 4975 of the Code. 2.9 The Fund represents and warrants that it will promptly notify the Custodian in writing if any of the above representations cease to be true.

Appears in 1 contract

Samples: Custodian Agreement (WEBs ETF Trust)

Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following: 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) such Instruction will have been, duly authorized, executed and delivered by the Fund and the General PartnerFund. This Neither this Agreement does not violate nor any Instruction issued thereunder violates any Applicable Law (as defined in Section 13) or conflict conflicts with or constitute constitutes a default under the Fund’s prospectus 's prospectus, articles of organization or other organic document, constitutive document or any agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it or its Investments is bound. 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund has (a) assessed and accepted all material Country, Sanctions or Sovereign Risks and accepted responsibility for their occurrence, (b) made all determinations required to be made by the Fund under Applicable Lawthe 1940 Act, except those appropriately delegated to the Custodian in the Delegation Schedule and (biii) appropriately and adequately disclosed to its unitholders and all persons who have rights in or to such Investments, shareholders all material investment risks, including those relating to the custody and settlement infrastructure or the servicing of securities in such jurisdiction. Nothing in this Section 2.2 shall relieve the Custodian of its responsibilities under Section 8.2 of this Agreement. 2.3 The Fund and the General Partner shall safeguard and shall solely be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides themit. In furtherance and not limitation of the foregoing, in the event If the Fund and/or the General Partner utilizes any on-line service offered by the Custodian, the Fund, the General Partner and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner shall be solely responsible for ensuring the security of their its access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General PartnerFund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund. 2.4 By providing an Instruction in respect of an Investment (which Instruction may relate to among other things, the execution and/or settlement of trades), the Fund hereby (i) authorizes BBH&Co. to complete such documentation as may be required or appropriate for the execution of the Instruction, and agrees to be contractually bound to the terms of such documentation “as is” without recourse against BBH&Co.; (ii) represents, warrants and covenants that it has accepted and agreed to comply with all Applicable Law, terms and conditions to which it and/or its Investment may be bound, including without limitation, requirements imposed by the Investment prospectus or offering circular, subscription agreement, any application or other documentation relating to an Investment (e.g., compliance with suitability requirements and eligibility restrictions); (iii) acknowledges and agrees that BBH&Co. will not be responsible for the accuracy of any information provided to it by or on behalf of the Fund, or for any underlying commitment or obligation inherent to an Investment; (iv) except as otherwise provided for in Section 2.4.1, represents, warrants and covenants that it will not effect any sale, transfer or disposition of Investment(s) held in BBH&Co.’s name by any means other than the issuance of an Instruction by the Fund to BBH&Co.; (v) acknowledges that collective investment schemes (and/or their agent(s)) in which the Fund invests may pay to BBH&Co. certain fees (including without limitation, shareholder servicing and/or trailer fees) in respect of the Fund’s investments in such schemes; (vi) agrees that BBH&Co. shall have no obligation or responsibility whatsoever to respond to, or provide capital in connection with any capital calls, letters of intent of other requirements as set out in the prospectus or offering circular of an Investment; (vii) represents, warrants and covenants that it will provide BBH&Co. with such information as is necessary or appropriate to enable BBH&Co.’s performance pursuant to an Instruction or under this Agreement; (viii) represents that it is not a “Plan” (which term includes (1) employee benefit plans that are subject to the United States (“US”) Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the US Internal Revenue Code of 1986, as amended (the “Code”), (2) plans, individual retirement accounts and other arrangements that are subject to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, and (3) entities the underlying assets of which are considered to include “plan assets” of such plans, accounts and arrangements), or an entity purchasing shares on behalf of, or with the “plan assets” of, a Plan; (ix) undertakes to inform BBH&Co. and to keep the same updated as to the status under ERISA or Section 4975 of the Code, each as amended, of the beneficial investor to the Investment, and as to any tax withholding or benefit to which an Investment may be subject; (x) acknowledges that BBH&Co. shall have no obligation to fund any order placed by the Fund for which the Fund does not have sufficient cash on deposit with BBH&Co.; and (xi) agrees that BBH&Co. shall be held harmless for the acts, omissions or any unlawful activity of any agent of the Fund, or any transfer agent or other agent of an Investment in which the Fund may invest. 2.4.1 To the extent that the Fund holds Investments in an account opened in the name of BBH&Co. as custodian for and at the direction of the Fund, and the General PartnerFund requests that BBH&Co. provide the Fund with the capability to place orders and execute trades in fund shares directly with such fund companies and/or their transfer agents which shall be settled in an account established with each such fund company or its transfer agent, the Fund hereby acknowledges that BBH&Co. is under no obligation to agree to such arrangement but if BBH&Co. so agrees, the Fund (i) acknowledges that all relevant terms under Section 2.4 above apply thereto, (ii) authorizes BBH&Co. as custodian, to grant a limited power of attorney to the Fund or its designated agent to enable the Fund to so execute, (iii) agrees to ensure that any instructions issued by the Fund or its designated agent shall also be concurrently submitted to BBH&Co., and (iv) shall adhere to any BBH&Co. procedures established with each such fund or its transfer agent with respect thereto including, but not limited to, the terms of the limited power of attorney. The Fund also acknowledges and agrees that (1) BBH&Co. is acting solely in its capacity as custodian and is not acting as a broker or introducing broker on behalf of the Fund, (2) BBH&Co. is not receiving compensation in connection with the Fund’s execution hereunder of trades with each such fund other than its usual and customary custody fees and transaction charges, (3) it will provide such account opening information to each such fund and/or transfer agent as and when requested by such fund and/or transfer agent, and (4) BBH&Co. is not responsible for (a) providing information published by the relevant distributor of each such fund including, but not limited to, the prospectus for each such Investment in a fund or for resolving execution queries or complaints relative to any such Investment, and (b) assessing the suitability of any such Investment executed directed by the Fund. 2.7 The Fund represents and warrants that it is not resident in or organized under the laws of any country with which transactions or dealings are prohibited under a Sanctions Regime. The Fund further warrants that it is not owned or controlled by: (i) the government of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) a person or entity resident in or organized under the laws of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; or (iii) any person or entity on the List of Specially Designated Nationals and Blocked Persons published by OFAC or any comparable Sanctions Regime lists . 2.8 The Fund represents and warrants that it will not instruct or otherwise cause Custodian to hold any assets in custody or to engage in or facilitate any transaction that would cause Custodian to violate any Sanctions Regime, including any transaction or dealing with or involving (i) any person or entity subject to any Sanctions Regime, or (ii) any assets owned or controlled by a person or entity that is subject to any Sanctions Regime, or any fund or other investment vehicle that is invested in such assets in violation of any Sanctions Regime (collectively, the “Sanctioned Property”). The Fund further represents and warrants that it will not instruct or cause Custodian to engage in any foreign exchange transaction related to any Sanctioned Property.

Appears in 1 contract

Samples: Custodian Agreement (Source ETF Trust)

Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following: 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) Instruction, such Instruction will have been, duly authorized, executed and delivered by the Fund and the General PartnerFund. This Agreement does not violate Neither this Agreement, nor any Instruction issued hereunder violates any Applicable Law (as defined in Section 13) or conflict conflicts with or constitute constitutes a default under the applicable Portfolio’s prospectus, the Fund’s prospectus articles of organization or other organic document, constitutive documents or any agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it the Fund or its Investments is bound. The Fund has the power and authority to enter into and perform this Agreement and give any Instruction thereunder; and it is, and will continue to be during the term of this Agreement, in material compliance with all Applicable Law in respect of actions and omissions taken in connection with and in furtherance of this Agreement. 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund has (a) assessed and accepted all material Country, Sanctions or Sovereign Risks and accepted responsibility for their occurrence, (b) made all determinations required to be made by the Fund under Applicable Lawthe 1940 Act, and (biii) appropriately and adequately disclosed to its unitholders the respective Portfolio’s shareholders, other investors and all persons who have rights in or to such Investments, all material investment risks, including those relating to the custody and settlement infrastructure or the servicing of securities in such jurisdiction. 2.3 The Fund and the General Partner shall safeguard and shall solely be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides themit. In furtherance and not limitation of the foregoing, in the event If the Fund and/or the General Partner utilizes any on-line service offered by the Custodian, the Fund, the General Partner and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner shall be solely responsible for ensuring the security of their its access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General PartnerFund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund. 2.4 Notwithstanding anything in this Agreement to contrary effect, the Fund specifically represents and warrants to the Custodian that it shall at all times be principally liable for the repayment of any Advance made by the Custodian under this Agreement. 2.5 By providing an Instruction in respect of an Investment (which Instruction may relate to among other things, the processing of orders and/or settlement of transactions in funds), the Fund hereby (i) authorizes BBH&Co. to complete such documentation as may be required or appropriate to carry out the Instruction, and agrees to be contractually bound to the terms of such documentation “as is” and, except as expressly set forth in Section 9 of this Agreement, without recourse against BBH&Co.; (ii) represents, warrants and covenants that it has accepted and agreed to comply with all Applicable Law, terms and conditions to which it and/or its Investment may be bound, including without limitation, requirements imposed by the Investment prospectus or offering circular, subscription agreement, any application or other documentation relating to an Investment (e.g., compliance with suitability requirements and eligibility restrictions and requirements that all such documentation relating to the investment has been received, read and understood by the Fund (for itself and its Portfolio)); (iii) acknowledges and agrees that BBH&Co. will not be responsible for the accuracy of any information provided to it by or on behalf of the Fund, or for any underlying commitment or obligation inherent to an Investment; (iv) represents, warrants and covenants that it will not effect any sale, transfer or disposition of Investment(s) held in BBH&Co.’s name by any means other than the issuance of an Instruction by the Fund to BBH&Co.; (v) acknowledges that collective investment schemes (and/or their agent(s)) in which the Fund invests may pay to BBH&Co. certain fees (including without limitation, shareholder servicing and/or trailer fees) in respect of the Fund’s investments in such schemes; (vi) agrees that BBH&Co. shall have no obligation or responsibility whatsoever to respond to, or provide capital in connection with any capital calls, letters of intent or other requirements as set out in the prospectus or offering circular of an Investment; (vii) represents, warrants and covenants that it will provide BBH&Co. with such information as is necessary or appropriate to enable BBH&Co.’s performance pursuant to an Instruction or under this Agreement; (viii) undertakes to inform BBH&Co. and to keep the same updated as to any tax withholding or benefit to which an Investment may be subject; (ix) authorizes BBH&Co. to furnish the customer due diligence records maintained by BBH&Co. on the Fund and its beneficial owners upon request of the General Partnertransfer agent or other agent of an issuer of an Investment; (x) represents and warrants that to the extent the Fund provides BBH&Co. with any personal data or personally identifiable information in connection with an Investment, the Fund will have obtained the consent of the applicable individuals to provide such data and information to BBH&Co. and the fund and to the use of such data and information as described in the applicable account opening, subscription and related fund documentation; (xi) acknowledges that BBH&Co. shall have no obligation to fund any order placed by the Fund for which the Fund does not have sufficient cash on deposit with BBH&Co.; and (xii) agrees that BBH&Co. shall be held harmless hereunder for the acts, omissions or any unlawful activity of any agent of the Fund, or any transfer agent or other agent of an Investment in which the Fund may invest, except to the extent such acts or omissions result directly from BBH&Co.’s (or its Agents’, officers’ or employees’) negligence, bad faith or willful misconduct. 2.6 The Fund represents and warrants that it is not resident in or organized under the laws of any country with which transactions or dealings are prohibited under a Sanctions Regime. The Fund further warrants that it is not owned or controlled by: (i) the government of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) a person or entity resident in or organized under the laws of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; or (iii) any person or entity on the List of Specially Designated Nationals and Blocked Persons published by OFAC or any comparable Sanctions Regime lists. 2.6.1 The Fund represents and warrants that it conducts ongoing screening of its holdings, relevant transactional activity, and service providers engaged by the Fund, including but not limited to Authorized Participants and distributors, against lists promulgated by a Sanctions Regime, as such lists are amended from time to time. 2.6.2 The Fund represents and warrants that it has implemented adequate risk management, control and compliance procedures and systems to ensure that it will not instruct or otherwise cause Custodian to hold any assets in custody that would violate a Sanctions Regime. The Fund further represents it will not instruct Custodian to invest in any asset, nor engage in or facilitate any transaction that would cause Custodian to violate any Sanctions Regime, including any transaction or dealing involving: (i) any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) any person or entity subject to any Sanctions Regime; or (iii) any assets owned or controlled by a person or entity that is subject to any Sanctions Regime (collectively, “Sanctioned Property”). The Fund further represents and warrants that it has confirmed that relevant service providers engaged by the Fund, including but not limited to Authorized Participants and distributors, have implemented equivalent controls as stated above. The Fund further represents and warrants that it will promptly notify the Custodian in writing if either it or any of the above relevant service providers becomes subject to a Sanctions Regime or if any of the assets custodied by BBH subsequently becomes Sanctioned Property. 2.7 The Fund represents and warrants that it has developed and implemented an anti-money laundering (“AML”) program (“AML Program”) that is designed to comply with all applicable AML and terrorist financing laws and regulations, including but not limited to: the United States Bank Secrecy Act, as amended by the USA PATRIOT Act of 2001, and the regulations promulgated thereunder; the most current European Union Anti- Money Laundering Directive; or Financial Action Task Force (“FATF”) standards against money laundering and terrorist financing (collectively, “applicable AML laws”). The Fund represents and warrants that its AML Program includes proper due diligence on relevant service providers, including but not limited to Authorized Participants and distributors, and confirmation that such service providers have implemented their own policies and procedures designed to comply with applicable AML Laws. The Fund further represents and warrants that it creates and maintains all records and documentation required by applicable AML laws, including identification and verification records of the Fund’s customers. 2.7.1 The Fund acknowledges that the Custodian is obligated under applicable US AML Laws to obtain, verify and record identifying information about the Custodian’s customers prior to opening an account. 2.7.2 The Fund represents and warrants that upon request, it will provide the Custodian with information that the Custodian requires to comply with applicable AML Laws and Sanctions Regimes, including but not limited to, verification regarding the AML and Sanctions Regime controls implemented by the above relevant service providers. 2.7.3 The Fund further represents and warrants that it will not instruct or otherwise cause Custodian to hold any assets in custody or engage in or facilitate any transaction that would cause Custodian to violate any applicable AML laws. 2.8 The Fund represents and warrants that neither it nor any Portfolio is a “Plan” (which term includes (1) employee benefit plans that are subject to the United States (“US”) Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the US Internal Revenue Code of 1986, as amended (the “Code”), (2) plans, individual retirement accounts and other arrangements that are subject to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, and (3) entities the underlying assets of which are considered to include “plan assets” of such plans, accounts and arrangements), or an entity purchasing shares on behalf of, or with the “plan assets” of, a Plan, and further undertakes to inform BBH&Co. and to keep the same updated as to the status under ERISA or Section 4975 of the Code, each as amended, of the Fund, including its Portfolios, or (4) the assets of any plan or other retirement arrangement or account that is not subject to Section 4975 of the Code or Title I of ERISA but is subject to any U.S. federal, state or local law or regulation or any non-U.S. or other law or regulation that contains one or more provisions that are similar to any of the fiduciary responsibility or prohibited transaction provisions under Title I of ERISA or Section 4975 of the Code. 2.9 The Fund represents and warrants that it will promptly notify the Custodian in writing if any of the above representations cease to be true.

Appears in 1 contract

Samples: Custodian Agreement (BondBloxx ETF Trust)

Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following: With respect to [ ] appointment as Custodian and TA: 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) Instruction, such Instruction will have been, duly authorized, executed and delivered by the Fund and the General PartnerFund. This Agreement does not violate Neither this Agreement, nor any Instruction issued hereunder violates any Applicable Law (as defined in Section 13) or conflict conflicts with or constitute constitutes a default under the applicable Portfolio’s prospectus, the Fund’s prospectus organizational documents or other organic document, any agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it Portfolio or its Investments is bound.. With respect to [ ] appointment as Custodian: 2.2 By providing an Instruction with respect to the first acquisition of an Investment (as defined below) in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund has (a) assessed and accepted all material Country, Sanctions or Sovereign Risks and accepted responsibility for their occurrence, (b) made all determinations required to be made by the Fund under Applicable Law, and (bc) appropriately and if appropriate, adequately disclosed to its unitholders and all persons who have rights in or to such Investments, all the material investment risksrisks of such Investment, including those relating to Country Risks. Nothing in this Section 2.2 shall relieve the custody and settlement infrastructure or the servicing Custodian of securities in such jurisdictionits responsibilities under Section 8.2 of this Agreement. 2.3 The Fund and the General Partner shall safeguard and shall solely be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides themit. In furtherance and not limitation of the foregoing, in the event If the Fund and/or the General Partner utilizes any on-line service offered by the Custodian, the Fund, the General Partner and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner Custodian each shall be solely responsible for ensuring the security of their its access to the service and for the authorized use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General PartnerFund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund. 2.4 By providing an Instruction in respect of an Investment (which Instruction may relate to among other things, the processing of orders and/or settlement of transactions in funds), the Fund hereby (i) authorizes [ ] to complete such documentation as may be required or appropriate to carry out the Instruction, and agrees to be contractually bound to the terms of such documentation “as is” without recourse against [ ]; (ii) represents, warrants and covenants that it has accepted and agreed to comply with all Applicable Law, terms and conditions to which it and/or its Investment may be bound, including without limitation, requirements imposed by the Investment prospectus or offering circular, subscription agreement, any application or other documentation relating to an Investment (e.g., compliance with suitability requirements and eligibility restrictions); (iii) acknowledges and agrees that [ ] will not be responsible for the accuracy of any information provided to [ ] by or on behalf of the Fund, or for any underlying commitment or obligation inherent to an Investment; (iv) except as otherwise provided for in Section 2.4.1, represents, warrants and covenants that it will not affect any sale, transfer or disposition of Investment(s) held in [ ]’s name by any means other than the issuance of an Instruction by the Fund to [ ]; (v) acknowledges that collective investment pools (and/or their agent(s)) in which the Fund invests may pay to [ ] certain fees (including without limitation, shareholder servicing and/or trailer fees) in respect of the Fund’s investments in such pools; (vi) agrees that [ ] shall have no obligation or responsibility whatsoever to respond to, or provide capital in connection with any capital calls, letters of intent of other requirements as set out in the prospectus or offering circular of an Investment; (vii) represents, warrants and covenants that it will provide [ ] with such information as is necessary or appropriate to enable [ ]’s performance pursuant to an Instruction or under this Agreement; (viii) undertakes to inform [ ] and to keep the same updated as any tax withholding or benefit to which an Investment may be subject; (ix) authorizes [ ] to furnish the customer due diligence records maintained by [ ] on the Fund and its beneficial owners to the General Partnertransfer agent or other agent of an issuer of an Investment to satisfy regulatory obligations; (x) represents and warrants that to the extent the Fund provides [ ] with any personal data or personally identifiable information in connection with an Investment, the Fund will have obtained the consent of the applicable individuals to provide such data and information to [ ] and the Fund and to the use of such data and information as described in the applicable account opening, subscription and related Fund documentation; (xi) acknowledges that [ ] shall have no obligation to fund any order placed by the Fund for which the Fund does not have sufficient cash on deposit with [ ]; and (xii) agrees that [ ] shall be held harmless for the acts, omissions or any unlawful activity of any agent of the Fund, or any transfer agent or other agent of an Investment in which the Fund may invest. 2.4.1 To the extent that the Fund holds Investments in an account opened in the name of [ ] as custodian for and at the direction of the Fund, and the Fund requests that [ ] provide the Fund with the capability to place orders in fund shares directly with such fund companies and/or their transfer agents which shall be settled in an account established with each such fund company or its transfer agent, the Fund hereby acknowledges that [ ] is under no obligation to agree to such arrangement but if [ ] so agrees, the Fund (i) acknowledges that all relevant terms under Section 2.4 above apply thereto, (ii) authorizes [ ] as custodian, to grant a limited power of attorney to the Fund or its designated agent to enable the Fund to place orders in fund shares directly with the fund companies and/or their transfer agents, (iii) agrees to ensure that any instructions issued by the Fund or its designated agent shall also be concurrently submitted to [ ], and (iv) shall adhere to any [ ] procedures established with each such fund or its transfer agent with respect thereto including, but not limited to, the terms of the limited power of attorney. The Fund also acknowledges and agrees that (1) [ ] is acting solely in its capacity as custodian and is not acting as a broker or introducing broker on behalf of the Fund, (2) [ ] is not receiving compensation in connection with the Fund’s own execution hereunder of trades with each such fund other than its usual and customary custody fees and transaction charges, (3) it will provide such account opening information to each such fund and/or transfer agent as and when requested by such fund and/or transfer agent, and (4) [ ] is not responsible for (a) providing information published by the relevant distributor of each such fund including, but not limited to, the prospectus for each such Investment in a fund or for resolving execution queries or complaints relative to any such Investment, and (b) assessing the suitability of any such Investment placed directly by the Fund. 2.5 The Fund represents and warrants that it is not resident in or organized under the laws of any country with which transactions or dealings are prohibited under a Sanctions Regime. The Fund further warrants that it is not owned or controlled by: (i) the government of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) a person or entity resident in or organized under the laws of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; or (iii) any person or entity on the List of Specially Designated Nationals and Blocked Persons published by OFAC or any comparable Sanctions Regime lists. 2.5.1 The Fund represents and warrants that it conducts ongoing screening of relevant parties engaged by the Fund, including but not limited to Authorized Participants and distributors, against lists promulgated by a Sanctions Regime, as such lists are amended from time to time.] 2.5.2 The Fund represents and warrants that it has implemented adequate risk management, control and compliance procedures and systems to ensure that it will not instruct or otherwise cause Custodian to hold any assets in custody that would violate a Sanctions Regime. The Fund further represents it will not instruct Custodian to invest in a collective investment vehicle on its behalf, nor engage in or facilitate any transaction that would cause Custodian to violate any Sanctions Regime, including any transaction or dealing involving: (i) any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) any person or entity subject to any Sanctions Regime; or (iii) any assets owned or controlled by a person or entity that is subject to any Sanctions Regime (collectively, “Sanctioned Property”). The Fund further represents and warrants that it has confirmed that relevant parties engaged by the Fund, including but not limited to Authorized Participants and distributors, have implemented equivalent controls as stated above. The Fund further represents and warrants that it will promptly notify the Custodian in writing if either it or any of its underlying customers whose assets are held by the Custodian becomes subject to a Sanctions Regime or holds assets that subsequently became Sanctioned Property. 2.6 The Fund represents and warrants that it has developed and implemented an anti-money laundering (“AML”) program (“AML Program”) that is designed to comply with all applicable AML and terrorist financing laws and regulations, including but not limited to: the United States Bank Secrecy Act, as amended by the USA PATRIOT Act of 2001, and the regulations promulgated thereunder; the 4th European Union Anti-Money Laundering Directive; or Financial Action Task Force (“FATF”) standards against money laundering and terrorist financing (collectively, “applicable AML Laws”). The Fund represents and warrants that its AML Program includes proper due diligence on relevant parties, including but not limited to Authorized Participants and distributors, and confirmation that such parties have implemented their own policies and procedures designed to comply with applicable AML Laws. The Fund further represents and warrants that it creates and maintains all records and documentation required by applicable AML Laws, including identification and verification records of the Fund’s customers.] 2.6.1 The Fund acknowledges that the Custodian is obligated under applicable US AML Laws to obtain, verify and record identifying information about its customers prior to opening an account. 2.6.2 The Fund represents and warrants that upon request, it will provide the Custodian with information that the Custodian requires to comply with applicable AML Laws and Sanctions Regimes. 2.6.3 The Fund further represents and warrants that it will not instruct or otherwise cause Custodian to hold any assets in custody or engage in or facilitate any transaction that would cause Custodian to violate any applicable AML laws. 2.7 The Fund represents and warrants that, due to the “publicly-offered security” exemption (or other available exemption), it is not a “Plan” (which term includes (1) employee benefit plans that are subject to the United States (“US”) Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the US Internal Revenue Code of 1986, as amended (the “Code”), (2) plans, individual retirement accounts and other arrangements that are subject to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, and (3) entities the underlying assets of which are considered to include “plan assets” of such plans, accounts and arrangements), or an entity purchasing shares on behalf of, or with the “plan assets” of, a Plan, and further undertakes to inform [ ] and to keep the same updated if the Fund becomes aware that such status has changed. 2.8 Notwithstanding anything in this Agreement to contrary effect, the Fund specifically represents and warrants to the Custodian that it shall at all times be principally liable for the repayment of any Advance made by the Custodian under this Agreement. 2.9 The Fund represents and warrants that it will promptly notify the Custodian in writing if any of the above representations cease to be true.

Appears in 1 contract

Samples: Custodian and Transfer Agent Agreement (Metaurus Equity Component Trust)

Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following: 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) such Instruction will have been, duly authorized, executed and delivered by the Fund and the General PartnerFund. This Neither this Agreement does not violate nor any Instruction issued thereunder violates any Applicable Law (as defined in Section 13) or conflict conflicts with or constitute constitutes a default under the Fund’s prospectus prospectus, organizational document or other organic document, any agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it or its Investments is bound. 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund has (a) assessed and accepted all material Country Risk, Sovereign Risk and AML and Sanctions Risk and accepted responsibility for their occurrence, (b) made all determinations required to be made by the Fund under Applicable Lawthe 1940 Act except those appropriately delegated to the Custodian in the Delegation Schedule, and (bc) appropriately and if appropriate, adequately disclosed to its unitholders and all persons who have rights in or to such Investments, all the material investment risksrisks of such Investment, including those relating to Country Risk, Sovereign Risk or AML And Sanctions Risk. Nothing in this Section 2.2. shall relieve the custody and settlement infrastructure or the servicing Custodian of securities in such jurisdictionits responsibilities under Section 8.2 of this Agreement. 2.3 The Fund and the General Partner shall safeguard and shall solely be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides themit. In furtherance and not limitation of the foregoing, in the event If the Fund and/or the General Partner utilizes any on-line service offered by the Custodian, the Fund, the General Partner and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner shall be solely responsible for ensuring the security of their its access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General PartnerFund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund. 2.4 Notwithstanding anything in this Agreement to contrary effect, the Fund specifically represents and warrants to the Custodian that it shall at all times be principally liable for the repayment of any Advance made by the Custodian under this Agreement. 2.5 By providing an Instruction in respect of an Investment (which Instruction may relate to among other things, the processing of orders and/or settlement of transactions in funds), the Fund hereby (i) authorizes BBH&Co. to complete such documentation as may be required or appropriate to carry out the Instruction, and agrees to be contractually bound to the terms of such documentation “as is” without recourse against BBH&Co.; (ii) represents, warrants and covenants that the Fund (for itself and/or its customers) has accepted and agreed to comply with all Applicable Law, terms and conditions to which it and/or its Investment may be bound, including without limitation, requirements imposed by the Investment prospectus or offering circular, subscription agreement, any application or other documentation relating to an Investment (e.g., compliance with suitability requirements and eligibility restrictions and requirements that all such documentation relating to the investment has been received, read and understood); (iii) acknowledges and agrees that BBH&Co. will not be responsible for the accuracy of any information provided to BBH&Co. by or on behalf of the Fund, or for any underlying commitment or obligation inherent to an Investment; (iv) except as otherwise provided for in Section 2.5.1, represents, warrants and covenants that it will not effect any sale, transfer or disposition of Investment(s) held in BBH&Co.’s name by any means other than the issuance of an Instruction by the Fund to BBH&Co.; (v) acknowledges that collective investment pools (and/or their agent(s)) in which the Fund invests may pay to BBH&Co. certain fees (including without limitation, shareholder servicing and/or trailer fees) in respect of the Fund’s investments in such pools; (vi) agrees that BBH&Co. shall have no obligation or responsibility whatsoever to respond to, or provide capital in connection with any capital calls, letters of intent or other requirements as set out in the prospectus or offering circular of an Investment; (vii) represents, warrants and covenants that it will provide BBH&Co. with such information as is necessary or appropriate to enable BBH&Co.’s performance pursuant to an Instruction or under this Agreement; (viii) undertakes to inform BBH&Co. and to keep the same updated as to any tax withholding or benefit to which an Investment may be subject; (ix) authorizes BBH&Co. to furnish the customer due diligence records maintained by BBH&Co. on the Fund (for itself and/or its customers) and their beneficial owners upon request of the transfer agent or other agent of an issuer of an Investment; (x) represents and warrants that to the extent the Fund provides BBH&Co. with any personal data or personally identifiable information in connection with an Investment, the Fund will have obtained the consent of the applicable individuals to provide such data and information to BBH&Co. and the General Partnerinvestment fund to the use of such data and information as described in the applicable account opening, subscription and related fund documentation; (xi) acknowledges that BBH&Co. shall have no obligation to fund any order placed by the Fund for which the Fund does not have sufficient cash on deposit with BBH&Co.; and (xii) agrees that BBH&Co. shall be held harmless for the acts, omissions or any unlawful activity of any agent of the Fund, or any transfer agent or other agent of an Investment in which the Fund may invest. 2.5.1 To the extent that the Fund holds Investments in an account opened in the name of BBH&Co. as custodian for and at the direction of the Fund, and the Fund requests that BBH&Co. provide the Fund with the capability to place orders in fund shares directly with such fund companies and/or their transfer agents which shall be settled in an account established with each such fund company or its transfer agent, the Fund hereby acknowledges that BBH&Co. is under no obligation to agree to such arrangement but if BBH&Co. so agrees, the Fund (i) acknowledges that all relevant terms under Section 2.4 above apply thereto, (ii) authorizes BBH&Co. as custodian, to grant a limited power of attorney to the Fund or its designated agent to enable the Fund to place orders in fund shares directly with the fund companies and/or their transfer agents, (iii) agrees to ensure that any instructions issued by the Fund or its designated agent shall also be concurrently submitted to BBH&Co., and (iv) shall adhere to any BBH&Co. procedures established with each such fund or its transfer agent with respect thereto including, but not limited to, the terms of the limited power of attorney. The Fund also acknowledges and agrees that (1) BBH&Co. is acting solely in its capacity as custodian and is not acting as a broker or introducing broker on behalf of the Fund, (2) BBH&Co. is not receiving compensation in connection with the Fund’s own execution hereunder of trades with each such fund other than its usual and customary custody fees and transaction charges, (3) it will provide such account opening information to each such fund and/or transfer agent as and when requested by such fund and/or transfer agent, and (4) BBH&Co. is not responsible for (a) providing information published by the relevant distributor of each such fund including, but not limited to, the prospectus for each such Investment in a fund or for resolving execution queries or complaints relative to any such Investment, and (b) assessing the suitability of any such Investment placed directly by the Fund. 2.6 The Fund represents and warrants that it is not resident in or organized under the laws of any country with which transactions or dealings are prohibited under a Sanctions Regime. The Fund further warrants that it is not owned or controlled by: (i) the government of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) a person or entity resident in or organized under the laws of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; or (iii) any person or entity on the List of Specially Designated Nationals and Blocked Persons published by OFAC or any comparable Sanctions Regime lists. 2.6.1 The Fund represents and warrants that it conducts ongoing screening of its investors and its investors’ transactions against lists promulgated by a Sanctions Regime, as such lists are amended from time to time. 2.6.2 The Fund represents and warrants that it has implemented adequate risk management, control and compliance procedures and systems to ensure that it will not instruct or otherwise cause Custodian to hold any assets in custody that would violate a Sanctions Regime. The Fund further represents it will not invest in, engage in, or facilitate any transaction that would cause Custodian to violate any Sanctions Regime, including any transaction or dealing involving: (i) any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) any person or entity subject to any Sanctions Regime; or (iii) any assets owned or controlled by a person or entity that is subject to any Sanctions Regime (collectively, “Sanctioned Property”). The Fund further represents and warrants that it will promptly notify the Custodian in writing if either it or any of its underlying investors whose assets are held by the Custodian becomes subject to a Sanctions Regime or holds assets that subsequently became Sanctioned Property. 2.7 The Fund represents and warrants that it has developed and implemented an anti-money laundering (“AML”) program (“AML Program”) that is designed to comply with all applicable AML and terrorist financing laws and regulations, including but not limited to: the United States Bank Secrecy Act, as amended by the USA PATRIOT Act of 2001, and the rules and guidance of any applicable self-regulatory organization (collectively, “applicable AML laws”). The Fund represents and warrants that its AML Program, or the AML Programs of its service providers, include a written Customer Identification Program (“CIP”) that identifies and verifies the Fund’s investors, including beneficial owners, as required by applicable AML laws. The Fund further represents and warrants that its AML Program, or the AML Programs of its service providers, include policies, procedures and controls designed to ensure that: (i) none of the Fund’s investors are prohibited banks that fail to maintain a physical presence in any country (a “Shell Bank”); (ii) enhanced due diligence is conducted on investors identified as Politically Exposed Persons, which includes ascertaining source of wealth for such investors; (iii) ongoing monitoring is conducted to identify and report suspicious activity; and (iv) the Fund or its service providers create and maintain all records and documentation required by applicable AML laws, including identification and verification records of the Fund’s investors. 2.7.1 The Fund acknowledges that the Custodian is obligated under applicable US AML Laws to obtain, verify and record identifying information about its customers prior to opening an account. 2.7.2 The Fund represents and warrants that upon request, it will provide the Custodian with information that the Custodian requires to comply with applicable AML Laws and Sanctions Regimes. 2.7.3 The Fund further represents and warrants that it will not instruct or otherwise cause Custodian to hold any assets in custody or engage in or facilitate any transaction that would cause Custodian to violate any applicable AML laws. 2.8 The Fund represents and warrants that it is not a “Plan” (which term includes (1) employee benefit plans that are subject to the United States (“US”) Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the US Internal Revenue Code of 1986, as amended (the “Code”), (2) plans, individual retirement accounts and other arrangements that are subject to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, and (3) entities the underlying assets of which are considered to include “plan assets” of such plans, accounts and arrangements), or an entity purchasing shares on behalf of, or with the “plan assets” of, a Plan, and further undertakes to inform BBH&Co. and to keep the same updated as to the status under ERISA or Section 4975 of the Code, each as amended, of the Fund, or (4) the assets of any plan or other retirement arrangement or account that is not subject to Section 4975 of the Code or Title I of ERISA but is subject to any U.S. federal, state or local law or regulation or any non-U.S. or other law or regulation that contains one or more provisions that are similar to any of the fiduciary responsibility or prohibited transaction provisions under Title I of ERISA or Section 4975 of the Code. 2.9 The Fund represents and warrants that it will promptly notify the Custodian in writing if any of the above representations cease to be true.

Appears in 1 contract

Samples: Custodian Agreement (Northern Lights Fund Trust Iii)

Representations, Warranties and Covenants of the Fund. The Fund and the General Partner each hereby represents, warrants and covenants each of the following: 2.1 This Agreement has been, and at the time of delivery of each Instruction (as defined in Section 4) such Instruction will have been, duly authorized, executed and delivered by the Fund and the General PartnerFund. This Neither this Agreement does not violate nor any Instruction issued thereunder violates any Applicable Law (as defined in Section 13) or conflict conflicts with or constitute constitutes a default under the Fund’s prospectus 's prospectus, organizational document or other organic document, any agreement, judgment, order or decree to which the Fund or the General Partner is a party or by which it or its Investments is bound. 2.2 By providing an Instruction with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund and the General Partner shall be deemed to have confirmed to the Custodian that the Fund has (a) assessed and accepted all material Country Risk, Sovereign Risk and AML and Sanctions Risk and accepted responsibility for their occurrence, (b) made all determinations required to be made by the Fund under Applicable Lawthe 1940 Act except those appropriately delegated to the Custodian in the Delegation Schedule, and (bc) appropriately and if appropriate, adequately disclosed to its unitholders and all persons who have rights in or to such Investments, all the material investment risksrisks of such Investment, including those relating to Country Risk, Sovereign Risk or AML And Sanctions Risk. Nothing in this Section 2.2. shall relieve the custody and settlement infrastructure or the servicing Custodian of securities in such jurisdictionits responsibilities under Section 8.2 of this Agreement. 2.3 The Fund and the General Partner shall safeguard and shall solely be solely responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides themit. In furtherance and not limitation of the foregoing, in the event If the Fund and/or the General Partner utilizes any on-line service offered by the Custodian, the Fund, the General Partner and the Custodian shall be fully responsible for the security of each party’s respective connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof. Additionally, if the Fund and/or the General Partner uses any on-line or similar communications service made available by the Custodian, the Fund and the General Partner shall be solely responsible for ensuring the security of their its access to the service and for the use of the service, and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Fund and/or the General Partner relating to the services described in this Agreement, the Fund and/or the General Partner will only use the software for the purposes for which the Custodian provided the software to the Fund and/or the General PartnerFund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund. 2.4 Notwithstanding anything in this Agreement to contrary effect, the Fund specifically represents and warrants to the Custodian that it shall at all times be principally liable for the repayment of any Advance made by the Custodian under this Agreement. 2.5 By providing an Instruction in respect of an Investment (which Instruction may relate to among other things, the processing of orders and/or settlement of transactions in funds), the Fund hereby (i) authorizes BBH&Co. to complete such documentation as may be required or appropriate to carry out the Instruction, and agrees to be contractually bound to the terms of such documentation “as is” without recourse against BBH&Co.; (ii) represents, warrants and covenants that the Fund (for itself and/or its customers) has accepted and agreed to comply with all Applicable Law, terms and conditions to which it and/or its Investment may be bound, including without limitation, requirements imposed by the Investment prospectus or offering circular, subscription agreement, any application or other documentation relating to an Investment (e.g., compliance with suitability requirements and eligibility restrictions and requirements that all such documentation relating to the investment has been received, read and understood); (iii) acknowledges and agrees that BBH&Co. will not be responsible for the accuracy of any information provided to BBH&Co. by or on behalf of the Fund, or for any underlying commitment or obligation inherent to an Investment; (iv) except as otherwise provided for in Section 2.5.1, represents, warrants and covenants that it will not effect any sale, transfer or disposition of Investment(s) held in BBH&Co.’s name by any means other than the issuance of an Instruction by the Fund to BBH&Co.; (v) acknowledges that collective investment pools (and/or their agent(s)) in which the Fund invests may pay to BBH&Co. certain fees (including without limitation, shareholder servicing and/or trailer fees) in respect of the Fund’s investments in such pools; (vi) agrees that BBH&Co. shall have no obligation or responsibility whatsoever to respond to, or provide capital in connection with any capital calls, letters of intent or other requirements as set out in the prospectus or offering circular of an Investment; (vii) represents, warrants and covenants that it will provide BBH&Co. with such information as is necessary or appropriate to enable BBH&Co.’s performance pursuant to an Instruction or under this Agreement; (viii) undertakes to inform BBH&Co. and to keep the same updated as to any tax withholding or benefit to which an Investment may be subject; (ix) authorizes BBH&Co. to furnish the customer due diligence records maintained by BBH&Co. on the Fund (for itself and/or its customers) and their beneficial owners upon request of the transfer agent or other agent of an issuer of an Investment; (x) represents and warrants that to the extent the Fund provides BBH&Co. with any personal data or personally identifiable information in connection with an Investment, the Fund will have obtained the consent of the applicable individuals to provide such data and information to BBH&Co. and the General Partnerinvestment fund to the use of such data and information as described in the applicable account opening, subscription and related fund documentation; (xi) acknowledges that BBH&Co. shall have no obligation to fund any order placed by the Fund for which the Fund does not have sufficient cash on deposit with BBH&Co.; and (xii) agrees that BBH&Co. shall be held harmless for the acts, omissions or any unlawful activity of any agent of the Fund, or any transfer agent or other agent of an Investment in which the Fund may invest. 2.5.1 To the extent that the Fund holds Investments in an account opened in the name of BBH&Co. as custodian for and at the direction of the Fund, and the Fund requests that BBH&Co. provide the Fund with the capability to place orders in fund shares directly with such fund companies and/or their transfer agents which shall be settled in an account established with each such fund company or its transfer agent, the Fund hereby acknowledges that BBH&Co. is under no obligation to agree to such arrangement but if BBH&Co. so agrees, the Fund (i) acknowledges that all relevant terms under Section 2.4 above apply thereto, (ii) authorizes BBH&Co. as custodian, to grant a limited power of attorney to the Fund or its designated agent to enable the Fund to place orders in fund shares directly with the fund companies and/or their transfer agents, (iii) agrees to ensure that any instructions issued by the Fund or its designated agent shall also be concurrently submitted to BBH&Co., and (iv) shall adhere to any BBH&Co. procedures established with each such fund or its transfer agent with respect thereto including, but not limited to, the terms of the limited power of attorney. The Fund also acknowledges and agrees that (1) BBH&Co. is acting solely in its capacity as custodian and is not acting as a broker or introducing broker on behalf of the Fund, (2) BBH&Co. is not receiving compensation in connection with the Fund’s own execution hereunder of trades with each such fund other than its usual and customary custody fees and transaction charges, (3) it will provide such account opening information to each such fund and/or transfer agent as and when requested by such fund and/or transfer agent, and (4) BBH&Co. is not responsible for (a) providing information published by the relevant distributor of each such fund including, but not limited to, the prospectus for each such Investment in a fund or for resolving execution queries or complaints relative to any such Investment, and (b) assessing the suitability of any such Investment placed directly by the Fund. 2.6 The Fund represents and warrants that it is not resident in or organized under the laws of any country with which transactions or dealings are prohibited under a Sanctions Regime. The Fund further warrants that it is not owned or controlled by: (i) the government of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) a person or entity resident in or organized under the laws of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; or (iii) any person or entity on the List of Specially Designated Nationals and Blocked Persons published by OFAC or any comparable Sanctions Regime lists. 2.6.1 The Fund represents and warrants that it conducts ongoing screening of its investors and its investors’ transactions against lists promulgated by a Sanctions Regime, as such lists are amended from time to time. 2.6.2 The Fund represents and warrants that it has implemented adequate risk management, control and compliance procedures and systems to ensure that it will not instruct or otherwise cause Custodian to hold any assets in custody that would violate a Sanctions Regime. The Fund further represents it will not invest in, engage in, or facilitate any transaction that would cause Custodian to violate any Sanctions Regime, including any transaction or dealing involving: (i) any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; (ii) any person or entity subject to any Sanctions Regime; or (iii) any assets owned or controlled by a person or entity that is subject to any Sanctions Regime (collectively, “Sanctioned Property”). The Fund further represents and warrants that it will promptly notify the Custodian in writing if either it or any of its underlying investors whose assets are held by the Custodian becomes subject to a Sanctions Regime or holds assets that subsequently became Sanctioned Property. 2.7 The Fund represents and warrants that it has developed and implemented an anti-money laundering (“AML”) program (“AML Program”) that is designed to comply with all applicable AML and terrorist financing laws and regulations, including but not limited to: the United States Bank Secrecy Act, as amended by the USA PATRIOT Act of 2001, and the rules and guidance of any applicable self-regulatory organization (collectively, “applicable AML laws”). The Fund represents and warrants that its AML Program, or the AML Programs of its service providers, include a written Customer Identification Program (“CIP”) that identifies and verifies the Fund’s investors, including beneficial owners, as required by applicable AML laws. The Fund further represents and warrants that its AML Program, or the AML Programs of its service providers, include policies, procedures and controls designed to ensure that: (i) none of the Fund’s investors are prohibited banks that fail to maintain a physical presence in any country (a “Shell Bank”); (ii) enhanced due diligence is conducted on investors identified as Politically Exposed Persons, which includes ascertaining source of wealth for such investors; (iii) ongoing monitoring is conducted to identify and report suspicious activity; and (iv) the Fund or its service providers create and maintain all records and documentation required by applicable AML laws, including identification and verification records of the Fund’s investors. 2.7.1 The Fund acknowledges that the Custodian is obligated under applicable US AML Laws to obtain, verify and record identifying information about its customers prior to opening an account. 2.7.2 The Fund represents and warrants that upon request, it will provide the Custodian with information that the Custodian requires to comply with applicable AML Laws and Sanctions Regimes. 2.7.3 The Fund further represents and warrants that it will not instruct or otherwise cause Custodian to hold any assets in custody or engage in or facilitate any transaction that would cause Custodian to violate any applicable AML laws. 2.8 The Fund represents and warrants that it is not a “Plan” (which term includes (1) employee benefit plans that are subject to the United States (“US”) Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the US Internal Revenue Code of 1986, as amended (the “Code”), (2) plans, individual retirement accounts and other arrangements that are subject to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, and (3) entities the underlying assets of which are considered to include “plan assets” of such plans, accounts and arrangements), or an entity purchasing shares on behalf of, or with the “plan assets” of, a Plan, and further undertakes to inform BBH&Co. and to keep the same updated as to the status under ERISA or Section 4975 of the Code, each as amended, of the Fund, or (4) the assets of any plan or other retirement arrangement or account that is not subject to Section 4975 of the Code or Title I of ERISA but is subject to any U.S. federal, state or local law or regulation or any non-U.S. or other law or regulation that contains one or more provisions that are similar to any of the fiduciary responsibility or prohibited transaction provisions under Title I of ERISA or Section 4975 of the Code. 2.9 The Fund represents and warrants that it will promptly notify the Custodian in writing if any of the above representations cease to be true.

Appears in 1 contract

Samples: Custodian Agreement (Northern Lights Fund Trust IV)

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