Representations, Warranties and Covenants of the Fund. The Fund hereby represents, warrants and covenants on behalf of each Portfolio, separately and not jointly, each of the following: (i) This Agreement has been, and at the time of delivery of each Instruction, such Instruction will have been, duly authorized, executed and delivered by the Fund. Neither this Agreement nor any Instruction delivered hereunder violates any Applicable Law or conflicts with or constitutes a default under the applicable Portfolio's prospectus, the Fund’s organizational documents or any agreement, judgment, order or decree to which the Fund is a party or by which a Portfolio or its Investments are bound; and (ii) it has the power and authority under its organizational documents to perform the duties set out in this Agreement; and (iii) it is, and will continue to be during the term of this Agreement, in material compliance with all Applicable Law applicable to it in respect of its duties, obligations and services under 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 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 the 1940 Act, except to the extent expressly delegated to the Custodian in the Delegation Schedule, and (c) solely with respect to Country Risk, as the Fund deems appropriate, disclosed to its shareholders all material investment risks. Nothing in this Section 2.2 shall relieve the Custodian of its responsibilities under Section 8 of this Agreement. 2.3 The Fund shall safeguard and shall solely be responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides it (except to the extent that any failure by the Fund to safe keep such devices or statements is caused or contributed to by the Custodian or by the design, or intended use or manufacture of the device or statement). If the Fund uses any on-line or similar communications service made available by the Custodian, the Fund and the Custodian each shall be solely responsible for ensuring the security of its respective 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 for their authorized use. If the Custodian provides any computer software to the Fund relating to the services described in this Agreement, the Fund will only use the software for the purposes for which the Custodian provided the software to the Fund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund in writing. 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, as provided in Sections 7.5, 7.6 and 7.7 hereof. 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 (including for each Portfolio) 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; (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); (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 and its beneficial owners to the transfer 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; 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 2.5 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 provided to the Fund 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 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 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, nor engage in, or facilitate any transaction on the Fund’s behalf 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 the target of any Sanctions Regime (collectively, “Sanctioned Property”). The Fund further represents and warrants that it will obtain representations from the Authorized Participants and distributors of the Fund that they have implemented sanctions compliance policies that are designed to comply with all applicable Sanctions Regimes, including U.S. sanctions. The Fund further represents and warrants that it will promptly notify the Custodian in writing if either the Fund or, to the best of the Fund’s knowledge, any of the above relevant parties becomes subject to a Sanctions Regime or if any of the assets custodied by the Custodian subsequently becomes Sanctioned Property. 2.7 The Fund represents and warrants that it has developed and implemented an anti-money laundering (“AML”) program that is designed to comply with all U.S. AML and terrorist financing laws and regulations (collectively, “applicable U.S. AML Laws”) to the extent applicable to it. The Fund represents and warrants that it will confirm that the Authorized Participants and distributors of the Fund have implemented AML programs designed to comply with applicable U.S. AML Laws. 2.7.1 The Fund acknowledges that the Custodian is obligated under applicable U.S. 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 (i) cooperate with the Custodian to obtain information from Authorized Participants and distributors of the Fund using commercially reasonable efforts and (ii) provide the Custodian with information in its possession, in both cases, to the extent that the Custodian requires such information to comply with applicable U.S. AML Laws and Sanctions Regimes, including but not limited to, verification regarding the AML and Sanctions Regime controls implemented by the above referenced Authorized Participants and distributors. 2.7.3 The Fund further represents and warrants that it will not directly or, to the best of its knowledge, indirectly, 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 U.S. 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. 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 in any material respect.
Appears in 1 contract
Representations, Warranties and Covenants of the Fund. The Fund hereby represents, warrants and covenants on behalf of each Portfolio, separately and not jointly, each of the following:
(i) 2.1. This Agreement has been, and at the time of delivery of each Instruction, such Instruction will have been, duly authorized, executed and delivered by the Fund. Neither this Agreement nor any Instruction delivered hereunder violates any Applicable Law or conflicts with or constitutes a default under the applicable Portfolio's ’s prospectus, the Fund’s organizational documents or any agreement, judgment, order or decree to which the Fund is a party or by which a Portfolio or its Portfolio’s Investments are is bound; and (ii) it has the power and authority under its organizational documents to perform the duties set out in this Agreement; and (iii) it is, and will continue to be during the term of this Agreement, in material compliance with all Applicable Law applicable to it in respect of its duties, obligations and services under this Agreement.
2.2 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 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 the 1940 Act, except to the extent those expressly delegated to the Custodian in the Delegation Schedule, and (c) solely with respect to Country Risk, as if the Fund deems appropriate, disclosed to its shareholders all material investment risks. Nothing in this Section 2.2 shall relieve the Custodian of its responsibilities under Section 8 of this Agreement.
2.3 2.3. The Fund shall safeguard and shall solely be responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides it (except to the extent that any failure by the Fund to safe keep such devices or statements is caused or contributed to by the Custodian or by the design, or intended use or manufacture of the device or statement). If the Fund uses any on-line or similar communications service made available by the Custodian, the Fund and the Custodian each shall be solely responsible for ensuring the security of its respective 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 for their authorized permitted use. If the Custodian provides any computer software to the Fund relating to the services described in this Agreement, the Fund will only use the software for the purposes for which the Custodian provided the software to the Fund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund in writing.
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, as provided in Sections 7.5, 7.6 and 7.7 hereof.
2.5 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 (including for each Portfolio) 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; (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 Fundrestrictions); (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 2.5.12.4.1, 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 or 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 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 to the transfer 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; 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 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 2.5 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 provided to the Fund Fund, 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 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.
2.6.1 2.5.1 The Fund represents and warrants that it conducts or its affiliates conduct ongoing screening of its holdings, relevant transactional activitycustomers to the extent required by Applicable Law, and service providers engaged by of the Fund, including but not limited to Portfolio’s Authorized Participants (as defined in Schedule III) and distributors, against lists promulgated by a Sanctions Regime, as such lists are amended from time to time.
2.6.2 2.5.2 The Fund represents and warrants that it has implemented adequate risk management 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 inin a collective investment vehicle on its behalf, nor engage in, in or facilitate any transaction on the Fund’s behalf 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 the target of any Sanctions Regime (collectively, “Sanctioned Property”). The Fund further represents and warrants that it will obtain has obtained representations from the Authorized Participants and distributors of the Fund that they have implemented sanctions compliance policies that are designed to comply with all applicable Sanctions Regimes, including U.S. sanctions. The Fund further represents and warrants that it will promptly notify the Custodian in writing if either the Fund it or, to the best of the Fund’s its knowledge, any of the above relevant parties becomes subject to a Sanctions Regime or if any of the assets custodied by the Custodian BBH subsequently becomes Sanctioned Property.
2.7 2.6. The Fund represents and warrants that it has developed and implemented an is operated in compliance with U.S. anti-money laundering (“AML”) program that is designed to comply with all U.S. AML and terrorist financing laws and regulations (collectively, “applicable U.S. AML Laws”) to the extent applicable to it. The Fund represents and warrants that it will confirm has confirmed that the Authorized Participants and distributors of the Fund have implemented AML programs Programs that are designed to comply with applicable U.S. AML Lawslaws and regulations.
2.7.1 2.6.1 The Fund acknowledges that the Custodian is obligated under applicable U.S. AML Laws to obtain, verify and record identifying information about the Custodian’s customers prior to opening an account.
2.7.2 2.6.2 The Fund represents and warrants that upon request, it will (i) cooperate with the Custodian to obtain information from Authorized Participants Participants, and distributors of the Fund using commercially reasonable efforts and (ii) provide the Custodian with information in its possession, in both cases, to the extent that the Custodian requires such information to comply with applicable U.S. AML Laws and Sanctions Regimes, including but not limited to, verification regarding the AML and Sanctions Regime controls implemented by the above referenced Authorized Participants and distributors.
2.7.3 2.6.3 The Fund further represents and warrants that it will not directly or, to the best of its knowledge, indirectly, 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 U.S. AML laws.
2.8 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.
2.9 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, as provided in Sections 7.5, 7.6 and 7.7 hereof.
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 in any material respect.
Appears in 1 contract
Samples: Custodian Agreement (Pgim Etf Trust)
Representations, Warranties and Covenants of the Fund. The Fund hereby representsrepresents and warrants to, warrants and covenants on behalf of each Portfoliowith, separately and not jointly, each of the followingAdviser as follows:
(ia) This The execution, delivery and performance by the Fund of this Agreement has beenare within the Fund’s powers and have been duly authorized by all necessary action, and at no action by or in respect of, or filing with, any governmental body, agency or official is required on the time part of the Fund for the execution, delivery of each Instruction, such Instruction will have been, duly authorized, executed and delivered performance by the Fund. Neither Fund of this Agreement, and the execution, delivery and performance by the Fund of this Agreement nor any Instruction delivered hereunder violates any Applicable Law do not contravene or conflicts with or constitutes constitute a default under (i) any provision of applicable law, rule or regulation, (ii) the applicable Portfolio's prospectusCertificate, the Fund’s organizational documents or (iii) any agreement, judgment, order injunction, order, decree or decree to which other instrument binding upon the Fund;
(b) The Fund is a party or by which a Portfolio or its Investments are bound; and (ii) it has the power and authority under its organizational documents to perform the duties set out shall comply in this Agreement; and (iii) it is, and will continue to be during the term of this Agreement, in all material compliance respects with all Applicable applicable provisions of Federal Securities Law applicable to it as defined in respect Rule 38a-1(e)(1) under the 1940 Act and rules and regulations of its duties, obligations and services under this Agreement.
2.2 By providing an Instruction the SEC with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund 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 the 1940 Act, except to the extent expressly delegated to the Custodian in the Delegation Schedule, and (c) solely with respect to Country Risk, as the Fund deems appropriate, disclosed to its shareholders all material investment risks. Nothing in this Section 2.2 shall relieve the Custodian of its responsibilities under Section 8 of this Agreement.
2.3 The Fund shall safeguard and shall solely be responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides it (except to the extent that any failure by the Fund to safe keep such devices or statements is caused or contributed to by the Custodian or by the design, or intended use or manufacture of the device or statement). If the Fund uses any on-line or similar communications service made available by the Custodian, the Fund and the Custodian each shall be solely responsible for ensuring the security of its respective 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 for their authorized use. If the Custodian provides any computer software services provided to the Fund relating to the services described in this Agreement, the Fund will only use the software for the purposes for which the Custodian provided the software to hereunder and the Fund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund in writing.
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 ’s activities under this Agreement, as provided and will conduct its activities under this Agreement in Sections 7.5, 7.6 accordance with any applicable laws and 7.7 hereof.
2.5 By providing an Instruction regulations of any governmental authority pertaining to its investment activities. The Fund shall notify the Adviser of a change in respect control of an Investment (which Instruction may relate to among other things, the processing of orders and/or settlement of transactions in funds), the Fund (including for each Portfolio) hereby (i) authorizes BBH&Cowithin a reasonable time after such change. to complete such documentation as may be required or appropriate to carry out the InstructionThe Fund will also fully cooperate in any regulatory investigation, and agrees to be contractually bound to the terms of such documentation; (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); (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 Fundexamination, 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 inspection 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 and its beneficial owners to the transfer 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; 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 2.5 above apply thereto, (ii) authorizes BBH&Co. as custodian, to grant a limited power of attorney to the Fund or its designated agent the Adviser relating 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 this Agreement or services provided 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 provided to the Fund 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 FundAdviser hereunder.
2.6 (c) The Fund represents and warrants that it is the Allocated Assets are free from any security interests, liens, or encumbrances exercisable by any third party against such assets that limit the ability of the Adviser to trade the Allocated Assets as contemplated in this Agreement and the Fund shall not resident in grant such a security interest, lien, or organized under encumbrance on any such assets for the laws benefit of any country with which transactions or dealings are prohibited under a Sanctions Regimethird party, except after providing prior written notice to the Adviser. The Fund further warrants agrees to notify the Adviser immediately if it learns that it any such security interest, lien, or encumbrance is not owned or controlled by: (i) created against any assets managed by the government Adviser and the Fund agrees to indemnify and hold the Adviser harmless from any and all expenses, damages, costs, and fees, including reasonable attorneys’ fees and expenses, incurred by the Adviser as a result of any country with which transactions security interest, lien, 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 encumbrance being created on the List of Specially Designated Nationals and Blocked Persons published by OFAC or any comparable Sanctions Regime listssuch assets.
2.6.1 (d) The Fund represents and warrants that it conducts ongoing screening that, for the purposes of its holdingsthe Vxxxxxx Rule, relevant transactional activity, the Fund is a “registered investment company” 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 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, nor engage in, or facilitate any transaction on the Fund’s behalf 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 the target of any Sanctions Regime (collectively, “Sanctioned Property”). The Fund further represents and warrants that it will obtain representations therefore excluded from the Authorized Participants and distributors definition of “covered fund” for purposes of Section 10 of the Fund that they have implemented sanctions compliance policies that are designed Vxxxxxx Rule implementing rules and, accordingly, the limitations on a banking entity’s ability to comply with all applicable Sanctions Regimes, including U.S. sanctions. The Fund further represents and warrants that it will promptly notify the Custodian acquire or retain ownership interests set forth in writing if either the Fund or, Section 10 do not apply to the best of the Fund’s knowledge, any of the above relevant parties becomes subject to a Sanctions Regime or if any of the assets custodied by the Custodian subsequently becomes Sanctioned Property.
2.7 The Fund represents and warrants that it has developed and implemented an anti-money laundering (“AML”) program that is designed to comply with all U.S. AML and terrorist financing laws and regulations (collectively, “applicable U.S. AML Laws”) to the extent applicable to it. The Fund represents and warrants that it will confirm that the Authorized Participants and distributors of the Fund have implemented AML programs designed to comply with applicable U.S. AML Laws.
2.7.1 The Fund acknowledges that the Custodian is obligated under applicable U.S. 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 (i) cooperate with the Custodian to obtain information from Authorized Participants and distributors of the Fund using commercially reasonable efforts and (ii) provide the Custodian with information in its possession, in both cases, to the extent that the Custodian requires such information to comply with applicable U.S. AML Laws and Sanctions Regimes, including but not limited to, verification regarding the AML and Sanctions Regime controls implemented by the above referenced Authorized Participants and distributors.
2.7.3 The Fund further represents and warrants that it will not directly or, to the best of its knowledge, indirectly, 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 U.S. 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.
2.9 (e) The Fund represents and warrants that it will promptly notify shall from time to time provide the Custodian in writing if any Adviser with a written list of persons known to be affiliates of the above representations cease Fund and affiliates of such affiliates to be true the extent reasonably necessary to ensure compliance with the limitations on affiliated transactions set forth in any material respectSection 17 of the 1940 Act.
Appears in 1 contract
Representations, Warranties and Covenants of the Fund. The Fund hereby represents, warrants and covenants on behalf of each Portfolio, Portfolio separately and not jointly, each of the following:
(i) 2.1 This Agreement has been, and at the time of delivery of each Instruction, Instruction such Instruction will have been, duly authorized, executed and delivered by the Fund. Neither this Agreement nor any Instruction delivered hereunder violates any Applicable Law or conflicts with or constitutes a default under the applicable Portfolio's prospectus, the Fund’s organizational documents agreement and declaration of trust, by-laws or other constitutive document or any agreement, judgment, order or decree to which the Fund is a party or by which it or a Portfolio or its Portfolio’s Investments are bound; and (ii) it has the power and authority under its organizational documents to perform the duties set out in this Agreement; and (iii) it is, and will continue to be during the term of this Agreement, in material compliance with all Applicable Law applicable to it in respect of its duties, obligations and services under 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 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 the 1940 Act, except to the extent expressly delegated to the Custodian in the Delegation Schedule, and (c) solely with respect to Country Risk, as the Fund deems appropriate, disclosed to its shareholders all material investment risks, including with respect to Country Risk. Nothing in this Section 2.2 shall relieve the Custodian of its responsibilities under Section 8 of this Agreement.
2.3 The Fund shall safeguard and shall solely be responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides it (except to the extent that any failure by the Fund to safe keep such devices or statements is caused or contributed to by the Custodian or by the design, or intended use or manufacture of the device or statement). If the Fund uses any on-line or similar communications service made available by the Custodian, the Fund and the Custodian each shall be solely responsible for ensuring the security of its respective access to the service and for the authorized use of the service, and . The Fund shall only attempt to access the service and the Custodian’s computer systems for their authorized use. If the Custodian provides any computer software to the Fund relating to the services described in this Agreement, the Fund will only use the software for the purposes for which the Custodian provided the software to the Fund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides in writing to the Fund in writing(which may be by electronic means, including via email or access to the BBH&Co. Portal).
2.4 Notwithstanding anything in this Agreement to contrary effect, the Fund on behalf of the applicable Portfolio 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, as provided in Sections 7.5, 7.6 and 7.7 hereofof 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 (including for each Portfolio) on behalf of a Portfolio 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 documentationdocumentation “as is” without recourse against BBH&Co., except as expressly set forth in Section 9 of this Agreement; (ii) represents, warrants and covenants that it the Fund (for itself and on behalf of its Portfolios) 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 Fundunderstood); (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 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 Funda Portfolio’s investments in such poolsschemes; (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 on behalf of its Portfolios) and their beneficial owners to upon request of the transfer agent or other agent of an issuer of an Investment to satisfy regulatory obligationsInvestment; (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 fund and to the use of such data and information as described in the applicable account opening, subscription and related Fund fund documentation; and (xi) acknowledges that BBH&Co. shall have no obligation to fund any order placed by the Fund on behalf of a Portfolio for which the Fund on behalf of a Portfolio 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 of any negligence, bad faith or willful misconduct on the part of BBH&Co.
2.5.1 To the extent that the Fund a Portfolio 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 on behalf of a Portfolio 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 on behalf of a Portfolio hereby acknowledges that BBH&Co. is under no obligation to agree to such arrangement but if BBH&Co. so agrees, the Fund on behalf of a Portfolio (i) acknowledges that all relevant terms under Section 2.5 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 on behalf of a Portfolio to place orders in fund shares directly with the fund companies and/or their transfer agents, (iii) agrees to ensure that any instructions Instructions issued by the Fund on behalf of a Portfolio or its designated agent shall also be concurrently submitted to BBH&Co., and (iv) shall adhere to any BBH&Co. procedures and established with each such fund or its transfer agent with respect thereto provided to the Fund on behalf of a Portfolio 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 FundFund on behalf of a Portfolio.
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 either the Fund or its service providers conduct ongoing screening of its holdings, relevant transactional activity, and service providers engaged by the Fund, including but not limited to Authorized Participants ’s investors and distributors, 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 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, nor engage in, or facilitate any transaction on the Fund’s behalf 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 the target of subject to any Sanctions Regime (collectively, “Sanctioned Property”). The Fund further represents and warrants that it will obtain representations from the Authorized Participants and distributors of the Fund that they have implemented sanctions compliance policies that are designed to comply with all applicable Sanctions Regimes, including U.S. sanctions. The Fund further represents and warrants that it will promptly notify the Custodian in writing if either the Fund or, to the best of the Fund’s knowledge, it or any of its underlying investors whose assets are held by the above relevant parties Custodian becomes subject to a Sanctions Regime or if any of the holds assets custodied by the Custodian that subsequently becomes became Sanctioned Property.
2.7 The Fund on behalf of its Portfolios represents and warrants that it has developed and implemented an anti-money laundering (“AML”) program (“AML Program”) that is designed to comply with all U.S. applicable AML and terrorist financing laws and regulations 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 U.S. AML Lawslaws”) to the extent applicable to it). The Fund represents and warrants that it will confirm its AML Program, or the AML Programs of its service providers, include a written Customer Identification Program (“CIP”) that the Authorized Participants identifies and distributors of the Fund have implemented AML programs designed to comply with verifies a Portfolio’s investors, including beneficial owners, as required by applicable U.S. AML Laws.
2.7.1 The Fund acknowledges that the Custodian is obligated under applicable U.S. 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 (i) cooperate with the Custodian to obtain information from Authorized Participants and distributors of the Fund using commercially reasonable efforts and (ii) provide the Custodian with information in its possession, in both cases, to the extent that the Custodian requires such information to comply with applicable U.S. AML Laws and Sanctions Regimes, including but not limited to, verification regarding the AML and Sanctions Regime controls implemented by the above referenced Authorized Participants and distributors.
2.7.3 laws. The Fund further represents and warrants that it will not directly orits AML Program, to or the best AML Programs of its knowledgeservice providers, indirectlyinclude policies, instruct or otherwise cause Custodian procedures and controls designed to hold ensure that: (i) none of a Portfolio’s investors are prohibited banks that fail to maintain a physical presence in any assets in custody or engage in or facilitate any transaction that would cause Custodian to violate any applicable U.S. AML laws.
2.8 The Fund represents and warrants that it is not country (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 (“ERISAShell Bank”), 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.
2.9 The Fund represents and warrants that it will promptly notify the Custodian in writing if any of the above representations cease to be true in any material respect.;
Appears in 1 contract
Representations, Warranties and Covenants of the Fund. The Fund hereby representsrepresents and warrants to, warrants and covenants on behalf of each Portfoliowith, separately and not jointly, each of the followingAdviser as follows:
(ia) This The execution, delivery and performance by the Fund of this Agreement has beenare within the Fund’s powers and have been duly authorized by all necessary action, and at no action by or in respect of, or filing with, any governmental body, agency or official is required on the time part of the Fund for the execution, delivery of each Instruction, such Instruction will have been, duly authorized, executed and delivered performance by the Fund. Neither Fund of this Agreement, and the execution, delivery and performance by the Fund of this Agreement nor any Instruction delivered hereunder violates any Applicable Law do not contravene or conflicts with or constitutes constitute a default under (i) any provision of applicable law, rule or regulation, (ii) the applicable Portfolio's prospectusCertificate, the Fund’s organizational documents or (iii) any agreement, judgment, order injunction, order, decree or decree to which other instrument binding upon the Fund;
(b) The Fund is a party or by which a Portfolio or its Investments are bound; and (ii) it has the power and authority under its organizational documents to perform the duties set out shall comply in this Agreement; and (iii) it is, and will continue to be during the term of this Agreement, in all material compliance respects with all Applicable applicable provisions of Federal Securities Law applicable to it as defined in respect Rule 38a-1(e)(1) under the 1940 Act and rules and regulations of its duties, obligations and services under this Agreement.
2.2 By providing an Instruction the SEC with respect to the first acquisition of an Investment in a jurisdiction other than the United States of America, the Fund 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 the 1940 Act, except to the extent expressly delegated to the Custodian in the Delegation Schedule, and (c) solely with respect to Country Risk, as the Fund deems appropriate, disclosed to its shareholders all material investment risks. Nothing in this Section 2.2 shall relieve the Custodian of its responsibilities under Section 8 of this Agreement.
2.3 The Fund shall safeguard and shall solely be responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides it (except to the extent that any failure by the Fund to safe keep such devices or statements is caused or contributed to by the Custodian or by the design, or intended use or manufacture of the device or statement). If the Fund uses any on-line or similar communications service made available by the Custodian, the Fund and the Custodian each shall be solely responsible for ensuring the security of its respective 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 for their authorized use. If the Custodian provides any computer software services provided to the Fund relating to the services described in this Agreement, the Fund will only use the software for the purposes for which the Custodian provided the software to hereunder and the Fund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides to the Fund in writing.
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 ’s activities under this Agreement, as provided and will conduct its activities under this Agreement in Sections 7.5, 7.6 accordance with any applicable laws and 7.7 hereof.
2.5 By providing an Instruction regulations of any governmental authority pertaining to its investment activities. The Fund shall notify the Adviser of a change in respect control of an Investment (which Instruction may relate to among other things, the processing of orders and/or settlement of transactions in funds), the Fund (including for each Portfolio) hereby (i) authorizes BBH&Cowithin a reasonable time after such change. to complete such documentation as may be required or appropriate to carry out the InstructionThe Fund will also fully cooperate in any regulatory investigation, and agrees to be contractually bound to the terms of such documentation; (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); (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 Fundexamination, 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 inspection 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 and its beneficial owners to the transfer 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; 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 2.5 above apply thereto, (ii) authorizes BBH&Co. as custodian, to grant a limited power of attorney to the Fund or its designated agent the Adviser relating 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 this Agreement or services provided 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 provided to the Fund 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 FundAdviser hereunder.
2.6 (c) The Fund represents and warrants that it is the Allocated Assets are free from any security interests, liens, or encumbrances exercisable by any third party against such assets that limit the ability of the Adviser to trade the Allocated Assets as contemplated in this Agreement and the Fund shall not resident in grant such a security interest, lien, or organized under encumbrance on any such assets for the laws benefit of any country with which transactions or dealings are prohibited under a Sanctions Regimethird party, except after providing prior written notice to the Adviser. The Fund further warrants agrees to notify the Adviser immediately if it learns that it any such security interest, lien, or encumbrance is not owned or controlled by: (i) created against any assets managed by the government Adviser and the Fund agrees to indemnify and hold the Adviser harmless from any and all expenses, damages, costs, and fees, including reasonable attorneys’ fees and expenses, incurred by the Adviser as a result of any country with which transactions security interest, lien, 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 encumbrance being created on the List of Specially Designated Nationals and Blocked Persons published by OFAC or any comparable Sanctions Regime listssuch assets.
2.6.1 (d) The Fund represents and warrants that it conducts ongoing screening that, for the purposes of its holdingsthe Xxxxxxx Rule, relevant transactional activitythe Fund is a “registered investment company” and is therefore excluded from the definition of “covered fund” for purposes of Section 10 of the Xxxxxxx Rule implementing rules and, accordingly, the limitations on a banking entity’s ability to acquire or retain ownership interests set forth in Section 10 do not apply to the Fund.
(e) Assuming a non-interim investment advisory agreement between the Fund and service providers engaged the Adviser, on substantially the same terms as set forth herein (other than those provisions necessary to correspond to the requirements of Rule 15a-4 under the 1940 Act), is approved by the Fund’s Board of Directors, 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 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, nor engage in, or facilitate any transaction on the Fund’s behalf 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 the target of any Sanctions Regime (collectively, “Sanctioned Property”). The Fund further represents and warrants that it will obtain representations from the Authorized Participants and distributors of the Fund that they have implemented sanctions compliance policies that are designed shall use reasonable commercial efforts to comply with all applicable Sanctions Regimes, including U.S. sanctions. The Fund further represents call a stockholders meeting and warrants that it will promptly notify to seek to obtain the Custodian in writing if either the Fund or, to the best approval of a majority of the Fund’s knowledge, any outstanding voting securities (as defined in Section 2(a)(42) of the above relevant parties becomes subject to a Sanctions Regime or if any 0000 Xxx) of such investment advisory agreement within 150 days of the assets custodied by the Custodian subsequently becomes Sanctioned Propertydate of this agreement.
2.7 (f) The Fund represents shall from time to time provide the Adviser with a written list of persons known to be affiliates of the Fund and warrants that it has developed and implemented an anti-money laundering (“AML”) program that is designed to comply with all U.S. AML and terrorist financing laws and regulations (collectively, “applicable U.S. AML Laws”) affiliates of such affiliates to the extent applicable reasonably necessary to it. The Fund represents and warrants that it will confirm that ensure compliance with the Authorized Participants and distributors limitations on affiliated transactions set forth in Section 17 of the Fund have implemented AML programs designed to comply with applicable U.S. AML Laws1940 Act.
2.7.1 The Fund acknowledges that the Custodian is obligated under applicable U.S. 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 (i) cooperate with the Custodian to obtain information from Authorized Participants and distributors of the Fund using commercially reasonable efforts and (ii) provide the Custodian with information in its possession, in both cases, to the extent that the Custodian requires such information to comply with applicable U.S. AML Laws and Sanctions Regimes, including but not limited to, verification regarding the AML and Sanctions Regime controls implemented by the above referenced Authorized Participants and distributors.
2.7.3 The Fund further represents and warrants that it will not directly or, to the best of its knowledge, indirectly, 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 U.S. 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.
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 in any material respect.
Appears in 1 contract
Samples: Interim Investment Advisory Agreement (Altaba Inc.)
Representations, Warranties and Covenants of the Fund. The Fund hereby represents, warrants and covenants covenants, on behalf of each Portfolio, Portfolio separately and not jointly, to each of the following: With respect to BBH&Co.’s appointment as Custodian and TA:
(i) 2.1 This Agreement has been, and at the time of delivery of each Instruction, such Instruction will have been, duly authorized, executed and delivered by the Fund, on behalf of a Portfolio. Neither this Agreement Agreement, nor any Instruction delivered hereunder violates any Applicable Law or conflicts with or constitutes a default under the applicable Portfolio's ’s prospectus, the Fund’s organizational documents agreement and declaration of trust, by-laws, or other constitutive documents, or any agreement, judgment, order or decree to which the Fund is a party or by which the Fund or a Portfolio or its Portfolio’s Investments are is bound; and (ii) it . The Fund has the power and authority under its organizational documents to perform the duties set out in this Agreement; and (iii) it . The Fund, on behalf of each Portfolio, is, and will continue to be during the term of this Agreement, in material compliance with all Applicable Law applicable to it in respect of its duties, duties and obligations and services under this Agreement. 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 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 Sections 9.1.2, 9.1.3 and 9.1.4, respectively) and accepted responsibility for their occurrence, (b) made all determinations required to be made by the Fund under the 1940 Act, Act except to the extent expressly delegated to the Custodian in the 17f-5 Delegation Schedule, and (c) solely with respect to Country Risk, as the Fund deems appropriate, disclosed to its shareholders the respective Portfolio’s shareholders, all material investment risksrisks with respect to Country Risk. Nothing in this Section 2.2 shall relieve the Custodian of its responsibilities under Section 8 of this Agreement.
2.3 The Fund shall safeguard and shall solely be responsible for the safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides it (except to the extent that any failure by the Fund to safe keep safekeep such devices or statements is caused or contributed to by the Custodian or by the design, or intended use or manufacture of the device or statement). If the Fund uses any on-line or similar communications service made available by the Custodian, the Fund and the Custodian each shall be solely responsible for ensuring the security of its respective access to the service and for the authorized use of the service, and . The Fund shall only attempt to access the service and the Custodian’s computer systems for their authorized use. If the Custodian provides any computer software to the Fund relating to the services described in this Agreement, the Fund will only use the software for the purposes for which the Custodian provided the software to the Fund, and will abide by the license agreement accompanying the software and any other security policies which the Custodian provides in writing to the Fund in writing(which may be by electronic means, including via email or access to the BBH&Co. Portal).
2.4 Notwithstanding anything in this Agreement to contrary effect, the Fund Fund, on behalf of the applicable Portfolio, 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, as provided in Sections 7.5, 7.6 and 7.7 hereofof 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 (including for each Fund, on behalf of a Portfolio) , 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; (ii) represents, warrants and covenants that it the Fund, on behalf of a Portfolio, 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 Investment’s 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 FundFund (for itself and its Portfolio)); (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 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 Funda Portfolio’s investments in such poolsschemes; (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 Portfolios and its beneficial owners to upon request of the transfer agent or other agent of an issuer of an Investment to satisfy regulatory obligationsInvestment; (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 fund and to the use of such data and information as described in the applicable account opening, subscription and related Fund fund documentation; and (xi) acknowledges that BBH&Co. shall have no obligation to fund any order placed by the Fund Fund, on behalf of a Portfolio, for which the Fund such Portfolio 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 2.5 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 provided to the Fund 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 holdings, relevant transactional activity, and service providers engaged by the Fund, including but not limited to Authorized Participants (as defined in a Portfolio’s prospectus) 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 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 inin any asset, nor engage in, in or facilitate any transaction on the Fund’s behalf 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 the target of subject to any Sanctions Regime (collectively, “Sanctioned Property”). The Fund further represents and warrants that it will obtain representations from has confirmed that relevant service providers engaged by the Fund, including but not limited to Authorized Participants and distributors of the Fund that they distributors, have implemented sanctions compliance policies that are designed to comply with all applicable Sanctions Regimes, including U.S. sanctionsequivalent controls as stated above. The Fund further represents and warrants that it will promptly notify the Custodian in writing if either the Fund or, to the best of the Fund’s knowledge, it or any of the above relevant parties service providers becomes subject to a Sanctions Regime or if any of the assets custodied by the Custodian BBH&Co. subsequently becomes Sanctioned Property.
2.7 The Fund Fund, on behalf of its Portfolios, 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 U.S. 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; or Financial Action Task Force (“FATF”) standards against money laundering and terrorist financing (collectively, “applicable U.S. AML Laws”) to the extent applicable to it). The Fund represents and warrants that it will confirm that the its AML Program includes proper due diligence on relevant service providers, including but not limited to Authorized Participants and distributors of the Fund distributors, and confirmation that such service providers have implemented AML programs their own policies and procedures designed to comply with applicable U.S. AML Laws. The Fund further represents and warrants that it creates and maintains all records and documentation required by applicable U.S. AML Laws, including identification and verification records of the Portfolio’s direct investors.
2.7.1 The Fund acknowledges that the Custodian is obligated under applicable U.S. 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 (i) cooperate with the Custodian to obtain information from Authorized Participants and distributors of the Fund using commercially reasonable efforts and (ii) provide the Custodian with information in its possession, in both cases, to the extent that the Custodian requires such information to comply with applicable U.S. AML Laws and Sanctions Regimes, including but not limited to, verification regarding the AML and Sanctions Regime controls implemented by the above referenced Authorized Participants and distributors.
2.7.3 The Fund further represents and warrants that it will not directly or, to the best of its knowledge, indirectly, 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 U.S. 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.
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 in any material respect.applicable
Appears in 1 contract
Samples: Custodian and Transfer Agent Agreement (Uncommon Investment Funds Trust)
