SERVICES TO BE RENDERED BY THE SUB. ADVISER (a) Subject to the supervision of the Adviser and the Board, the Sub-Adviser shall manage the investment operations and determine the composition of the assets assigned to the Sub-Adviser by the Adviser ("portfolio") of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Fund, in accordance with such Fund's investment objective and policies as stated in the then-current prospectus ("PROSPECTUS") and Statement of Additional Information ("SAI") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT"), as such Prospectus and SAI are amended or supplemented from time to time. As part of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Adviser and the Sub-Adviser of all material facts concerning the investment and reinvestment of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the Board, and the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii) in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the following: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund(s) (the "APPLICABLE LAWS"); (v) the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time; (vi) the Trust's policies and procedures adopted from time to time by the Board; and (vii) the written instructions of the Adviser. Prior to the commencement of the Sub-Adviser's services hereunder, the Adviser shall provide the Sub-Adviser with current copies of the Trust Declaration, By-Laws, Prospectus and SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief. The Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The Adviser undertakes to provide the Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to any such above-mentioned document or information. (c) In furnishing services hereunder, the Sub-Adviser will not consult with any other investment adviser to (i) the Fund, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit the Sub-Adviser from consulting with any of its affiliated persons concerning transactions in securities or other assets. This also shall not be deemed to prohibit the Sub-Adviser from consulting with any of the other covered advisers concerning compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have been provided to the Sub-Adviser or (ii) as described in the Trust's Prospectus and SAI. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Sub-Adviser shall seek to achieve for the Fund "best execution", considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund. (e) Subject to the appropriate policies and procedures approved by the Board, the Sub-Adviser may, to the extent consistent with the safe harbor set forth in Section 28(e) of the Securities Exchange Act of 1934, as amended ("EXCHANGE ACT"), cause each Fund to pay a broker or dealer that provides brokerage or research services to the Adviser, the Sub-Adviser or the Fund an amount of commission for effecting a portfolio transaction in excess of the amount of commission another broker or dealer would have charged for effecting that transaction if the Sub-Adviser determines, in good faith, that such amount of commission is reasonable in relationship to the value of such brokerage or research services provided viewed in terms of that particular transaction or the Sub-Adviser's overall responsibilities to the Fund or its other advisory clients. To the extent consistent with Section 28(e) and the Board, the Sub-Adviser shall not be deemed to have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason of such action. Subject to seeking best execution, the Board or the Adviser may authorize, but not require, the Sub-Adviser to effect transactions in portfolio securities through broker-dealers in a manner that will help generate resources to pay the cost of certain expenses that the Trust is required to pay or for which the Trust is required to arrange payment. (f) On occasions when the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Sub-Adviser and its affiliates, the Sub-Adviser to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner which the Sub-Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser agrees that the Sub-Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Fund. The Adviser also acknowledges that the Sub-Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Fund, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the Sub-Adviser, its affiliates, officers or employees may purchase or sell for its or their own account or for the account of any client, if in the sole and absolute discretion of the Sub-Adviser it is for any reason impractical or undesirable to take such action or make such recommendation for the Fund. (g) The Sub-Adviser will maintain all accounts, books and records with respect to each Fund as are required of an investment adviser of a registered investment company pursuant to the Investment Company Act and Advisers Act and the rules thereunder and shall file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein. (h) The Sub-Adviser will, unless and until otherwise directed by the Adviser or the Board and consistent with seeking the best interests of each Fund, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the Sub-Adviser shall vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Sub-Adviser's proxy voting guidelines, a copy of which has been provided to the Adviser.

Appears in 1 contract

Samples: Investment Sub Advisory Agreement (SPDR Series Trust)

SERVICES TO BE RENDERED BY THE SUB. ~~ADVISER~~ADVISER TO THE TRUST ~~(a) Subject~~ A. As sub-adviser to ~~the supervision of the Adviser and the Board~~each Fund, the Sub-Adviser ~~shall manage~~ will coordinate the investment ~~operations~~ and reinvestment of the assets of each Fund and determine the composition of the assets ~~assigned to the Sub-Adviser by the Adviser ("portfolio")~~ of each ~~Fund, including the purchase, retention and disposition of the securities and other instruments held by the~~ Fund, in accordance with ~~such~~ the terms of this Agreement, each Fund~~'s investment objective and policies as stated in the then-current prospectus ("PROSPECTUS")~~ ’s Prospectus and Statement of Additional Information ("“SAI~~") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT"~~”), as ~~such Prospectus~~ currently in effect and ~~SAI are~~ as amended or supplemented from time to time~~. As part~~ , and subject to the direction, supervision and control of the ~~services it will provide hereunder, the Sub-~~Investment Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and ~~what portion~~ oversight of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Adviser and the Sub-Adviser of all material facts concerning the investment and reinvestment of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the Board, and the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii) in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the following: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws Trustees of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund(s) (the "APPLICABLE LAWS"); (v) the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time; (vi) the Trust's policies and procedures adopted from time to time by the Board; and (vii) the written instructions of the Adviser. Prior to the commencement of the Sub-Adviser's ’s services hereunder, the Investment Adviser shall provide the Sub-Adviser with current copies of the ~~Trust Declaration, By-Laws,~~ Fund’s Prospectus and ~~SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief~~SAI. The ~~Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The~~ Investment Adviser undertakes to provide the Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to ~~any such above-mentioned document or information. (c) In furnishing services hereunder,~~ a Fund’s Prospectus and SAI and the Sub-Adviser will not ~~consult with any other investment adviser~~ need to (i) the Fund, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit the Sub-Adviser from consulting with any of its affiliated persons concerning transactions in securities or other assets. This also shall not be deemed to prohibit the Sub-Adviser from consulting with any of the other covered advisers concerning compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have comply until a copy has been provided to the Sub-Adviser ~~or (ii) as described in~~ and agreed upon. B. If directed by the ~~Trust's Prospectus and SAI. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees~~Investment Adviser, the Sub-Adviser ~~shall seek~~ is authorized to ~~achieve~~ place orders for the ~~Fund "best execution"~~purchase and sale of securities for the Funds with or through such brokers, ~~considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from~~ dealers or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund. (e) Subject to the appropriate policies and procedures approved by the Board, banks as the Sub-Adviser ~~may~~may select and, subject to ~~the extent consistent with the safe harbor set forth in~~ Section 28(e) of the Securities Exchange Act of 1934, as amended (~~"EXCHANGE ACT"~~the “Exchange Act”), ~~cause each Fund to~~ review by the Investment Adviser and the Trustees and other applicable law, may pay ~~a broker or dealer that provides brokerage or research services to the Adviser, the Sub-Adviser or the Fund an amount of commission for effecting a portfolio transaction~~ commissions on transactions in excess of the amount of ~~commission~~ commissions another broker or dealer would have ~~charged for effecting that transaction if the~~ charged. The Sub-Adviser ~~determines~~will seek best execution under the circumstances of the particular transaction taking into consideration the full range and quality of a broker’s services in placing brokerage including, ~~in good faith~~among other things, ~~that such amount of commission is reasonable in relationship to~~ the value of ~~such brokerage or~~ research ~~services~~ provided ~~viewed in terms of that particular transaction or~~ as well as execution capability, commission rate, financial responsibility and responsiveness to the Sub-Adviser~~'s overall responsibilities to the Fund or its other advisory clients~~. ~~To the extent consistent with Section 28(e) and the Board, the~~ The Sub-Adviser ~~shall not be deemed to have acted unlawfully~~ may aggregate sales and purchase orders of securities or to have breached any duty created by this Agreement or otherwise solely by reason of such action. Subject to seeking best execution, the Board or the Adviser may authorize, but not require, the Sub-Adviser to effect transactions in portfolio securities through broker-dealers derivatives held in a ~~manner that will help generate resources to pay the cost of certain expenses that the Trust is required to pay or~~ Fund with similar orders being made simultaneously for ~~which the Trust is required to arrange payment. (f) On occasions when the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as~~ other clients of the Sub-Adviser and its affiliates, the Sub-Adviser to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made portfolios managed by the Sub-Adviser if, in ~~the manner which~~ the Sub-Adviser’s reasonable judgment, such aggregation shall result in an overall economic benefit to the Funds in accordance with the Sub-Adviser’s policies and procedures. Sub-Adviser ~~considers~~ agrees to be provide the ~~most equitable~~ Investment Adviser with a copy of these policies and ~~consistent with its fiduciary obligations to each Fund~~ procedures. C. The Investment Adviser understands and ~~to its other clients over time. The Adviser~~ agrees that the Sub-Adviser performs investment management services for various clients and ~~its affiliates~~ may ~~give advice and~~ take action ~~in the performance of their duties~~ with respect to any of ~~their~~ its other clients ~~that~~ which may differ from ~~advice given,~~ action taken or from the timing or nature of ~~actions taken, with respect to the Fund. The Adviser also acknowledges that~~ action taken by the Sub-Adviser ~~and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the~~ for a Fund~~, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships~~. ~~Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the~~ The Sub-Adviser~~, its affiliates, officers or employees~~ ’s authority hereunder shall not be impaired because of the fact that it may ~~purchase or sell~~ effect transactions with respect to securities for its ~~or their~~ own account or for the ~~account~~ accounts of ~~any client~~others which it manages which are identical or similar to securities to which it may, if in directed by the ~~sole and absolute discretion of~~ Investment Adviser, effect transactions for a Fund at the ~~Sub-Adviser it is for any reason impractical~~ same or ~~undesirable to take such action or make such recommendation for the Fund~~similar times. ~~(g)~~ D. The Sub-Adviser will provide Investment Adviser with copies of the Sub-Adviser’s current policies and procedures adopted in accordance with Rule 206(4)-7 under the Adviser Act. Only to the extent that the Funds are required by the 1940 Act to adopt any such policy or procedure, the Investment Adviser will submit such policy or procedure to the Trust’s Board of Trustees for adoption or ratification by each of the Funds, with such modifications or additions thereto as the Board of Trustees or the Investment Adviser may recommend subject to the concurrence of the Sub-Adviser. E. The Investment Adviser and Sub-Adviser will maintain and preserve all accounts, books and records with respect to ~~each Fund~~ the Funds as are required of an investment adviser of a registered investment company pursuant to the ~~Investment Company~~ 1940 Act and the Advisers Act and the rules thereunder and the Adviser shall file with the SEC all forms pursuant to ~~Section 13~~ Sections 13D, 13F and 13G of the Exchange ~~Act~~Act solely on its own behalf (and those filings remain the property of the Sub-Adviser), with respect to its ~~duties as are set forth herein. (h)~~ investments or holdings. The Funds or the Sub-Adviser ~~will~~may have its own filing obligations with respect to Sections 13D, ~~unless and until otherwise~~ 13F or 13G under the Exchange Act. The records relating to the services provided under this Agreement shall be the property of the Fund. The Funds, the Sub-Adviser or the Investment Adviser shall have the right to copies of such records if required under applicable law. F. If directed by the Investment Adviser, the Sub-Adviser ~~or the Board and consistent with seeking the best interests of each Fund,~~ will exercise ~~(or not exercise in its discretion)~~ all investment rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the Sub-Adviser shall vote all proxies ~~solicited by or with respect to the issuers of securities in which assets of the Fund may be invested~~ in accordance with the Sub-Adviser's ’s then-current proxy voting ~~guidelines, a copy of which has been provided~~ policies. Notwithstanding anything else to the contrary in this Agreement, the Sub-Adviser will not compile or file claims or take any related actions on behalf of the Funds or Investment Adviser in any class action, bankruptcy or other legal proceeding related to the securities currently or previously held in the Funds, unless otherwise agreed to in writing by the Investment Adviser and the Funds. However, the Sub-Adviser shall provide factual information in its possession as the Investment Adviser may reasonably request. G. The Sub-Adviser will make available and provide information concerning the Sub-Adviser required by the Funds in the preparation of registration statements, reports and other documents required by federal and state securities laws, and such other information as the Funds or the Investment Adviser may reasonably request for use in the preparation of such documents, or of other materials necessary or helpful for the distribution of a Fund’s shares, subject to the express use of name approval rights of the Sub-Adviser pursuant to Section 14 of this Agreement. Subject to paragraph 5 of this Agreement, the Funds, Trust, Adviser or principal underwriter shall be solely responsible for the compliance of promotional materials with applicable laws and rules, including those of any applicable self-regulatory organization, subject to Section 14 of this Agreement. H. In the performance of its duties and obligations under this Agreement, the Sub-Adviser shall act in conformity with each Fund’s Prospectuses and SAI and with the instructions and directions of the Investment Adviser and of the Trustees and will conform and comply with the applicable requirements of the 1940 Act, the Internal Revenue Code of 1986, as amended, and all other applicable federal and state laws and regulations, as each is amended from time to time. I. The Sub-Adviser at its own expense will make available to the Trustees and the Adviser at reasonable times its portfolio managers and other appropriate personnel, either in person or, at the mutual convenience of the Investment Adviser and the Sub-Adviser, by telephone, in order to review the investment policies, performance and other investment related information regarding a Fund and to consult with the Trustees of the Fund and Investment Adviser regarding each Fund’s investment affairs, including economic, statistical and investment matters related to the Sub-Adviser’s duties hereunder, and will provide periodic reports to the Investment Adviser or the Trustees relating to the investment strategies it employs. The Sub-Adviser and its personnel shall also cooperate fully with the commercially reasonable requests of counsel and auditors for, and the Chief Compliance Officers of, the Investment Adviser and the Trust. J. The Sub-Adviser will review draft reports to shareholders and other documents provided or available to it and provide comments on a timely basis. The Investment Adviser will provide such documents to the Sub-Adviser in a reasonable timeframe prior to the due date. In addition, the Sub-Adviser and each officer and portfolio manager thereof designated by the Investment Adviser will provide on a timely basis such certifications or sub-certifications as the Investment Adviser may reasonably request in order to support and facilitate certifications required to be provided by the Trust’s Principal Executive Officer and Principal Accounting Officer.

Appears in 1 contract

Samples: Sub Advisory Agreement (Sprott Funds Trust)

SERVICES TO BE RENDERED BY THE SUB. ADVISER ~~(a) Subject~~ A. As sub-adviser to the ~~supervision of the Adviser and the Board~~Fund, ~~the~~ Sub-Adviser ~~shall manage~~ will coordinate and execute the investment ~~operations~~ and reinvestment of the assets of the Fund and determine the composition of the assets ~~assigned to~~ of the Fund. The Sub-Adviser by (and its directors, managers, officers and employees) shall perform all services under this Agreement on a discretionary basis, subject to the ~~Adviser ("portfolio") of each Fund~~general direction, ~~including the purchase, retention~~ supervision and ~~disposition~~ control of the securities and other instruments held by the Fund, in accordance with such Fund's investment objective and policies as stated in the then-current prospectus ("PROSPECTUS") and Statement of Additional Information ("SAI") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT"), as such Prospectus and SAI are amended or supplemented from time to time. As part of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Investment Adviser and the ~~Sub-Adviser~~ Fund’s Board of all material facts concerning the investment and reinvestment of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the BoardDirectors, and ~~the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii)~~ in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the followingstrict conformity with: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers ~~Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange~~ Act and ~~the rules under each,~~ any and all other ~~federal~~ applicable laws; (ii) the Fund’s Articles of Amendment and ~~state laws~~ Restatement and bylaws; (iii) any and all investment guidelines, instructions and directions provided by the Investment Adviser or ~~regulations applicable to~~ the ~~Trust~~ Fund; (iv) the Fund’s compliance policies, procedures and ~~the Fund(s) (the "APPLICABLE LAWS")~~guidelines; and (v) the ~~terms~~ investment objectives, policies and ~~conditions~~ restrictions set forth in the prospectus and statement of ~~exemptive~~ additional information contained in the Fund’s Registration Statement on Form N-2 under the Securities Act of 1933, as amended (the "Securities Act") and ~~no-action relief granted to~~ the ~~Trust~~ Investment Company Act, as currently in effect and as supplemented and/or amended from time to ~~time;~~ time (~~vi)~~ respectively, the ~~Trust's policies~~ "Prospectus", the "Statement of Additional Information", and ~~procedures adopted~~ the "Registration Statement"), as each may be modified from time to time by (the ~~Board; and~~ documents described in (~~vii~~ii) through (v) above, the ~~written instructions of the Adviser~~"Fund Documents"). Prior to the commencement of the Sub-Adviser's ’s services hereunder, the Investment Adviser shall provide ~~the~~ Sub-Adviser with current copies of the ~~Trust Declaration, By-Laws, Prospectus and SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief~~Fund Documents. ~~The Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The~~ Investment Adviser undertakes to provide ~~the~~ Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to ~~any such above-mentioned document or information. (c) In furnishing services hereunder~~the Fund Documents, ~~the~~ and Sub-Adviser will not ~~consult with any other investment adviser~~ need to ~~(i)~~ comply until a copy has been provided to Sub-Adviser. Notwithstanding anything contained herein to the ~~Fund~~contrary, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit the should Sub-Adviser ~~from consulting with any of its affiliated persons concerning transactions in securities~~ choose to utilize reverse repurchase agreement obligations, derivative instruments or other ~~assets. This also shall not be deemed~~ instruments or trading practices that, according to ~~prohibit~~ the ~~Sub-~~Securities and Exchange Commission ("SEC") or its staff, may cause senior securities concerns, the Investment Adviser ~~from consulting with any~~ acknowledges that the monitoring of the ~~other covered advisers concerning~~ use of such instruments or trading practices for compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have been provided to the Sub-Adviser or (ii) as described in the Trust's Prospectus and SAI. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Sub-Adviser shall seek to achieve for the Fund "best execution", considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, or interpretations or modifications by the ~~Advisers Act~~ SEC, SEC staff or other authority with appropriate jurisdiction, is the responsibility of the Sub-Adviser and not the ~~rules under each~~Investment Adviser. The Investment Adviser, and ~~all other federal and state laws or regulations applicable~~ not the Sub-Adviser, is responsible for making recommendations to the ~~Trust~~ Fund regarding, and monitoring (for purposes of Investment Company Act compliance, general market conditions and otherwise), the Fund’s use of bank borrowings (other than reverse repurchase agreements) or other similar term loans and the Fund’s issuance of preferred shares (or other "senior securities" in the form of debt or stock pursuant to Section 18 of the Investment Company Act), if any. The Sub-Adviser shall fully cooperate with the Fund’s and the Investment Adviser’s Chief Compliance Officers, the Fund’s legal counsel, any counsel to the Fund’s directors who are not "interested persons" of the Fund (as that term is defined under the Investment Company Act) and the Fund’s independent public accounting firm. ~~(e)~~ B. Subject to any direction from the ~~appropriate policies and procedures approved by~~ Investment Adviser or the ~~Board~~Fund, the Sub-Adviser ~~may~~is responsible for placing orders for the execution of portfolio transactions with or through or with such brokers, dealers, counterparties or banks as Sub-Adviser may select. In choosing broker-dealers, Sub-Adviser may take into account, in addition to commission costs and execution capabilities, the ~~extent consistent with~~ financial stability and reputation of the ~~safe harbor set forth~~ broker-dealers and the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of ~~1934, as amended~~ 1934 (the "~~EXCHANGE ACT~~1934 Act")) provided by such broker-dealers. In addition, ~~cause each Fund~~ Sub-Adviser may receive brokerage and research services in connection with certain riskless principal transactions, in accordance with applicable law. Sub-Adviser is authorized to pay ~~a broker or dealer that provides~~ broker-dealers who provide such brokerage or research services a commission (or equivalent) for executing a transaction which is in excess of the commissions (or equivalents) another broker-dealer would have charged for executing that transaction, if Sub-Adviser determines that such commission (or equivalent) is reasonable in relation to the value of the brokerage and research services provided to Sub-Adviser by the broker-dealer. Sub-Adviser will use its best efforts to obtain best execution under the circumstances for all portfolio transactions for the Fund and will use its best judgment to choose the broker-dealer most capable of providing the services necessary to obtain most favorable execution under the circumstances, taking into consideration the full range and quality of a broker-dealer’s services in placing transactions with broker-dealers including, among other things, the value of research provided (with respect to evaluating commissions and commission equivalents) as well as execution capability, commission rate (or commission equivalent), financial stability and responsibility, reputation, and responsiveness to the Sub-Adviser. In no event shall Sub-Adviser be under any duty to obtain the lowest commission for the Fund on any particular transaction. Sub-Adviser is not under any duty to execute transactions for the Fund before or after transactions for other like accounts managed by Sub-Adviser, except to the extent that doing so would violate applicable law. Sub-Adviser may aggregate sales and purchase orders of securities or derivatives held in the Fund with similar orders being made simultaneously for other portfolios managed by Sub-Adviser if, in Sub-Adviser’s reasonable judgment, such aggregation shall result in an overall economic benefit to the Fund, taking into consideration the advantageous selling or purchase price, brokerage commission, and other expenses. If an aggregate order is executed in parts at different prices, or two or more separate orders for two or more of Sub-Adviser’s clients are entered at approximately the same time on any day and are executed at different prices, Sub-Adviser has discretion, subject to its fiduciary duty to the Fund and its other advisory clients, to use an average price at which such securities were purchased or sold for the Fund and each of the clients for whom such orders were executed. Sub-Adviser may engage in brokerage and other securities transactions on behalf of the Fund with broker-dealer affiliates of Sub-Adviser in accordance with applicable Fund documents and applicable law. C. The Sub-Adviser will furnish to the Investment Adviser and the Fund, from time to time and as the Investment Adviser may request, reports and other data or information on portfolio transactions and reports and other data or information on the Fund’s assets, all in such detail and in such frequency as may be requested from time to time. The Sub-Adviser will also provide the Investment Adviser and the Fund, upon the Investment Adviser’s or the Fund’s request, with economic and investment analysis and reports or other investment services normally available to institutional or other clients of the Sub-Adviser. The Sub-Adviser will make available its officers and employees to meet with the Investment Adviser and the Fund's Board of Directors to review the investments of the Fund, on a quarterly, or upon due notice, at a time requested by the Investment Adviser or the Fund’s Board of Directors. D. Investment Adviser understands and agrees that Sub-Adviser performs investment management services for various clients and may take action with respect to any of its other clients which may differ from action taken or from the timing or nature of action taken by Sub-Adviser for the Fund. Sub-Adviser’s authority hereunder shall not be impaired because of the fact that it may effect transactions with respect to securities for its own account or for the accounts of others which it manages which are identical or similar to securities to which it may effect transactions for the Fund at the same or similar times. E. The Sub-Adviser also will promptly furnish and make available to the Fund such information concerning the Sub-Adviser and its services hereunder as the Investment Adviser or the Fund may request in the preparation of the Fund’s or the Investment Adviser’s regulatory filings, reports and other documents or in the fulfillment of its other compliance obligations. The Sub-Adviser will review draft filings, reports and other documents provided to it, and provide comments/corrections to the same on a timely basis. In addition, the Sub-Adviser will provide on a timely basis such certifications or sub-certifications as the Investment Adviser or the Fund ~~an amount~~ may reasonably request in order to support and facilitate certifications required to be provided by the Investment Adviser or the Fund (or their officers) from time to time. F. The Sub-Adviser shall promptly provide the Investment Adviser’s and the Fund’s Chief Compliance Officer ("CCO"), upon request, copies of ~~commission~~ its policies and procedures for ~~effecting a portfolio transaction in excess of the amount of commission another broker or dealer would have charged for effecting that transaction if~~ compliance by the Sub-Adviser ~~determines~~and the Fund with the Federal Securities Laws as defined in Rule 38a-1 under the Investment Company Act and promptly provide the CCO with copies of any material changes to those policies and procedures. The Sub-Adviser shall fully cooperate with the CCO as to facilitate the CCO’s performance of his/her responsibilities under Rule 38a-1 to review, ~~in good faith, that such amount of commission is reasonable in relationship~~ evaluate and report to the ~~value~~ Fund’s Board of ~~such brokerage or research services provided viewed in terms~~ Directors on the operation of ~~that particular transaction or~~ the Sub-Adviser~~'s overall responsibilities~~ ’s compliance policies and procedures and shall promptly report to the ~~Fund or its other advisory clients~~CCO any "Material Compliance Matter" as defined by Rule 38a-1(e)(2). ~~To the extent consistent with Section 28(e) and the Board~~At least annually, the Sub-Adviser shall not be deemed to have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason of such action. Subject to seeking best execution, the Board or the Adviser may authorize, but not require, the Sub-Adviser to effect transactions in portfolio securities through broker-dealers in provide a manner that will help generate resources to pay the cost of certain expenses that the Trust is required to pay or for which the Trust is required to arrange payment. (f) On occasions when the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Sub-Adviser and its affiliates, the Sub-Adviser certification to the ~~extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate~~ CCO to the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner which the Sub-Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser agrees effect that the Sub-Adviser has in place and ~~its affiliates may give advice~~ has implemented policies and ~~take action in~~ procedures that are reasonably designed to ensure compliance by the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Fund. The Adviser also acknowledges that Fund and the Sub-Adviser ~~and its affiliates are fiduciaries to other entities, some of which have~~ with the same or similar investment objectives (and will hold the same or similar investments) as the Fund, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the Sub-Adviser, its affiliates, officers or employees may purchase or sell for its or their own account or for the account of any client, if in the sole and absolute discretion of the Sub-Adviser it is for any reason impractical or undesirable to take such action or make such recommendation for the FundFederal Securities Laws. ~~(g)~~ G. The Sub-Adviser will maintain all ~~accounts,~~ books and records ~~with respect~~ relating to ~~each Fund as are~~ investment decisions, trade orders and similar undertakings of the Sub-Adviser under this Agreement required ~~of an investment adviser of a registered investment company~~ to be maintained pursuant to the Investment Company Act and ~~Advisers Act~~ the rules and regulations promulgated thereunder with respect to transactions made by it on behalf of the Fund including, without limitation, the books and records required by Rule 31a-l under the Investment Company Act, and shall timely furnish to the Adviser all information relating to the Sub-Adviser's services hereunder needed by the Adviser to keep such other books and records of the Fund required by Rule 31a-1 under the Investment Company Act. The Sub-Adviser will also preserve all such books and records for the periods prescribed in Rule 31a-2 under the Investment Company Act. The Sub-Adviser further agrees that all books and records maintained hereunder shall be made available to the Investment Adviser and the ~~rules thereunder~~ Fund at any time upon request, including facsimile, without delay, during any business day. Upon termination of this Agreement, the Sub-Adviser, at its expense, shall promptly upon demand, return to the Investment Adviser and the Fund any and all such records. The Sub-Adviser shall not be required to maintain books and records that are required to be maintained by the Fund’s administrator other than as required of it by applicable laws and regulations. Sub-Adviser shall file with the SEC all forms pursuant to ~~Section 13 of~~ the ~~Exchange Act,~~ 1934 Act with respect to its duties as are set forth herein. ~~(h)~~ H. The Sub-Adviser will, unless and until otherwise directed by the ~~Adviser or the Board and consistent with seeking the best interests of each Fund~~Investment Adviser, exercise ~~(or not exercise in its discretion)~~ all investor rights ~~of security holders~~ with respect to ~~securities held by each~~ the Fund’s assets, including, but not limited to: , voting proxies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the Sub-Adviser shall vote all proxies ~~solicited by or with respect to the issuers of securities in which assets of the Fund may be invested~~ in accordance with the Sub-Adviser's ’s then-current proxy voting ~~guidelines~~policies and procedures. The Sub-Adviser will report quarterly to the Investment Adviser and the Fund regarding such voting in a format reasonably requested by the Investment Adviser or the Fund. The Sub-Adviser represents that it has adopted and implemented written policies and procedures that are reasonably designed to ensure that the Sub-Adviser votes proxies in the best interest of the Fund in compliance with the requirements of Rule 206(4)-6 under the Advisers Act. The Sub-Adviser shall promptly provide notice and copies of any material changes to its policies procedures or other guidelines for voting proxies to the Fund and the Investment Adviser. Upon request, the Sub-Adviser shall provide the Investment Adviser and the Fund with a complete and current copy of ~~which has been provided~~ its policies, procedures and other guidelines or a description of the same for the purpose of disclosing such information in the Fund’s prospectus or as otherwise required by applicable law. The Sub-Adviser will promptly inform and forward to the ~~Adviser~~Investment Adviser any and all information received by Sub-Adviser relating to any class action or other litigation, any bankruptcy matters, or any other legal proceedings involving the Fund’s portfolio investments.

Appears in 1 contract

Samples: Investment Sub Advisory Agreement (Rivernorth Opportunities Fund, Inc.)

SERVICES TO BE RENDERED BY THE SUB. ADVISER ~~(a) Subject~~ A. As sub-adviser to the ~~supervision of the Adviser and the Board~~Fund, ~~the~~ Sub-Adviser ~~shall manage~~ will coordinate and execute the investment ~~operations~~ and reinvestment of the assets of the Fund and determine the composition of the assets ~~assigned to~~ of the Fund. The Sub-Adviser by (and its directors, managers, officers and employees) shall perform all services under this Agreement on a discretionary basis, subject to the ~~Adviser ("portfolio") of each Fund~~general direction, ~~including the purchase, retention~~ supervision and ~~disposition~~ control of the securities and other instruments held by the Fund, in accordance with such Fund's investment objective and policies as stated in the then-current prospectus ("PROSPECTUS") and Statement of Additional Information ("SAI") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT"), as such Prospectus and SAI are amended or supplemented from time to time. As part of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Investment Adviser and the ~~Sub-Adviser~~ Fund’s Board of all material facts concerning the investment and reinvestment of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the BoardDirectors, and ~~the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii)~~ in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the followingstrict conformity with: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers ~~Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange~~ Act and ~~the rules under each,~~ any and all other ~~federal~~ applicable laws; (ii) the Fund’s Articles of Amendment and ~~state laws~~ Restatement and bylaws; (iii) any and all investment guidelines, instructions and directions provided by the Investment Adviser or ~~regulations applicable to~~ the ~~Trust~~ Fund; (iv) the Fund’s compliance policies, procedures and ~~the Fund(s) (the "APPLICABLE LAWS")~~guidelines; and (v) the ~~terms~~ investment objectives, policies and ~~conditions~~ restrictions set forth in the prospectus and statement of ~~exemptive~~ additional information contained in the Fund’s Registration Statement on Form N-2 under the Securities Act of 1933, as amended (the “Securities Act”) and ~~no-action relief granted to~~ the ~~Trust~~ Investment Company Act, as currently in effect and as supplemented and/or amended from time to ~~time;~~ time (~~vi)~~ respectively, the ~~Trust's policies~~ “Prospectus”, the “Statement of Additional Information”, and ~~procedures adopted~~ the “Registration Statement”), as each may be modified from time to time by (the ~~Board; and~~ documents described in (~~vii~~ii) through (v) above, the ~~written instructions of the Adviser~~“Fund Documents”). Prior to the commencement of the Sub-Adviser's ’s services hereunder, the Investment Adviser shall provide ~~the~~ Sub-Adviser with current copies of the ~~Trust Declaration, By-Laws, Prospectus and SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief~~Fund Documents. ~~The Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The~~ Investment Adviser undertakes to provide ~~the~~ Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to ~~any such above-mentioned document or information. (c) In furnishing services hereunder~~the Fund Documents, ~~the~~ and Sub-Adviser will not ~~consult with any other investment adviser~~ need to ~~(i)~~ comply until a copy has been provided to Sub-Adviser. Notwithstanding anything contained herein to the ~~Fund~~contrary, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit the should Sub-Adviser ~~from consulting with any of its affiliated persons concerning transactions in securities~~ choose to utilize reverse repurchase agreement obligations, derivative instruments or other ~~assets. This also shall not be deemed~~ instruments or trading practices that, according to ~~prohibit~~ the ~~Sub-~~Securities and Exchange Commission (“SEC”) or its staff, may cause senior securities concerns, the Investment Adviser ~~from consulting with any~~ acknowledges that the monitoring of the ~~other covered advisers concerning~~ use of such instruments or trading practices for compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have been provided to the Sub-Adviser or (ii) as described in the Trust's Prospectus and SAI. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Sub-Adviser shall seek to achieve for the Fund "best execution", considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, or interpretations or modifications by the ~~Advisers Act~~ SEC, SEC staff or other authority with appropriate jurisdiction, is the responsibility of the Sub-Adviser and not the ~~rules under each~~Investment Adviser. The Investment Adviser, and ~~all other federal and state laws or regulations applicable~~ not the Sub-Adviser, is responsible for making recommendations to the ~~Trust~~ Fund regarding, and monitoring (for purposes of Investment Company Act compliance, general market conditions and otherwise), the Fund’s use of bank borrowings (other than reverse repurchase agreements) or other similar term loans and the Fund’s issuance of preferred shares (or other “senior securities” in the form of debt or stock pursuant to Section 18 of the Investment Company Act), if any. The Sub-Adviser shall fully cooperate with the Fund’s and the Investment Adviser’s Chief Compliance Officers, the Fund’s legal counsel, any counsel to the Fund’s directors who are not “interested persons” of the Fund (as that term is defined under the Investment Company Act) and the Fund’s independent public accounting firm. ~~(e)~~ B. Subject to any direction from the ~~appropriate policies and procedures approved by~~ Investment Adviser or the ~~Board~~Fund, the Sub-Adviser ~~may~~is responsible for placing orders for the execution of portfolio transactions with or through or with such brokers, dealers, counterparties or banks as Sub-Adviser may select. In choosing broker-dealers, Sub-Adviser may take into account, in addition to commission costs and execution capabilities, the ~~extent consistent with~~ financial stability and reputation of the ~~safe harbor set forth~~ broker- dealers and the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of ~~1934~~1934 (the “1934 Act”)) provided by such broker-dealers. In addition, ~~as amended ("EXCHANGE ACT")~~Sub-Adviser may receive brokerage and research services in connection with certain riskless principal transactions, ~~cause each Fund~~ in accordance with applicable law. Sub-Adviser is authorized to pay ~~a broker or dealer that provides~~ broker-dealers who provide such brokerage or research services a commission (or equivalent) for executing a transaction which is in excess of the commissions (or equivalents) another broker-dealer would have charged for executing that transaction, if Sub-Adviser determines that such commission (or equivalent) is reasonable in relation to the value of the brokerage and research services provided to Sub-Adviser by the broker-dealer. Sub-Adviser will use its best efforts to obtain best execution under the circumstances for all portfolio transactions for the Fund and will use its best judgment to choose the broker-dealer most capable of providing the services necessary to obtain most favorable execution under the circumstances, taking into consideration the full range and quality of a broker-dealer’s services in placing transactions with broker-dealers including, among other things, the value of research provided (with respect to evaluating commissions and commission equivalents) as well as execution capability, commission rate (or commission equivalent), financial stability and responsibility, reputation, and responsiveness to the Sub-Adviser. In no event shall Sub-Adviser be under any duty to obtain the lowest commission for the Fund on any particular transaction. Sub-Adviser is not under any duty to execute transactions for the Fund before or after transactions for other like accounts managed by Sub-Adviser, except to the extent that doing so would violate applicable law. Sub-Adviser may aggregate sales and purchase orders of securities or derivatives held in the Fund with similar orders being made simultaneously for other portfolios managed by Sub-Adviser if, in Sub-Adviser’s reasonable judgment, such aggregation shall result in an overall economic benefit to the Fund, taking into consideration the advantageous selling or purchase price, brokerage commission, and other expenses. If an aggregate order is executed in parts at different prices, or two or more separate orders for two or more of Sub-Adviser’s clients are entered at approximately the same time on any day and are executed at different prices, Sub-Adviser has discretion, subject to its fiduciary duty to the Fund and its other advisory clients, to use an average price at which such securities were purchased or sold for the Fund and each of the clients for whom such orders were executed. Sub-Adviser may engage in brokerage and other securities transactions on behalf of the Fund with broker-dealer affiliates of Sub-Adviser in accordance with applicable Fund documents and applicable law. C. The Sub-Adviser will furnish to the Investment Adviser and the Fund, from time to time and as the Investment Adviser may request, reports and other data or information on portfolio transactions and reports and other data or information on the Fund’s assets, all in such detail and in such frequency as may be requested from time to time. The Sub-Adviser will also provide the Investment Adviser and the Fund, upon the Investment Adviser’s or the Fund’s request, with economic and investment analysis and reports or other investment services normally available to institutional or other clients of the Sub-Adviser. The Sub-Adviser will make available its officers and employees to meet with the Investment Adviser and the Fund's Board of Directors to review the investments of the Fund, on a quarterly, or upon due notice, at a time requested by the Investment Adviser or the Fund’s Board of Directors. D. Investment Adviser understands and agrees that Sub-Adviser performs investment management services for various clients and may take action with respect to any of its other clients which may differ from action taken or from the timing or nature of action taken by Sub-Adviser for the Fund. Sub-Adviser’s authority hereunder shall not be impaired because of the fact that it may effect transactions with respect to securities for its own account or for the accounts of others which it manages which are identical or similar to securities to which it may effect transactions for the Fund at the same or similar times. E. The Sub-Adviser also will promptly furnish and make available to the Fund such information concerning the Sub-Adviser and its services hereunder as the Investment Adviser or the Fund may request in the preparation of the Fund’s or the Investment Adviser’s regulatory filings, reports and other documents or in the fulfillment of its other compliance obligations. The Sub-Adviser will review draft filings, reports and other documents provided to it, and provide comments/corrections to the same on a timely basis. In addition, the Sub-Adviser will provide on a timely basis such certifications or sub-certifications as the Investment Adviser or the Fund ~~an amount~~ may reasonably request in order to support and facilitate certifications required to be provided by the Investment Adviser or the Fund (or their officers) from time to time. F. The Sub-Adviser shall promptly provide the Investment Adviser’s and the Fund’s Chief Compliance Officer (“CCO”), upon request, copies of ~~commission~~ its policies and procedures for ~~effecting a portfolio transaction in excess of the amount of commission another broker or dealer would have charged for effecting that transaction if~~ compliance by the Sub-Adviser ~~determines~~and the Fund with the Federal Securities Laws as defined in Rule 38a-1 under the Investment Company Act and promptly provide the CCO with copies of any material changes to those policies and procedures. The Sub-Adviser shall fully cooperate with the CCO as to facilitate the CCO’s performance of his/her responsibilities under Rule 38a-1 to review, ~~in good faith, that such amount of commission is reasonable in relationship~~ evaluate and report to the ~~value~~ Fund’s Board of ~~such brokerage or research services provided viewed in terms~~ Directors on the operation of ~~that particular transaction or~~ the Sub-Adviser~~'s overall responsibilities~~ ’s compliance policies and procedures and shall promptly report to the ~~Fund or its other advisory clients~~CCO any “Material Compliance Matter” as defined by Rule 38a-1(e)(2). ~~To the extent consistent with Section 28(e) and the Board~~At least annually, the Sub-Adviser shall ~~not be deemed~~ provide a certification to ~~have acted unlawfully or~~ the CCO to ~~have breached any duty created~~ the effect that the Sub- Adviser has in place and has implemented policies and procedures that are reasonably designed to ensure compliance by ~~this Agreement or otherwise solely by reason of such action. Subject to seeking best execution,~~ the ~~Board or the Adviser may authorize, but not require,~~ Fund and the Sub-Adviser ~~to effect transactions in portfolio securities through broker-dealers in a manner that will help generate resources to pay~~ with the ~~cost of certain expenses that the Trust is required to pay or for which the Trust is required to arrange payment~~Federal Securities Laws. (f) On occasions when the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Sub-Adviser and its affiliates, the Sub-Adviser to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner which the Sub-Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser agrees that the Sub-Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Fund. The Adviser also acknowledges that the Sub-Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Fund, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the Sub-Adviser, its affiliates, officers or employees may purchase or sell for its or their own account or for the account of any client, if in the sole and absolute discretion of the Sub-Adviser it is for any reason impractical or undesirable to take such action or make such recommendation for the Fund. (g) G. The Sub-Adviser will maintain all ~~accounts,~~ books and records ~~with respect~~ relating to ~~each Fund as are~~ investment decisions, trade orders and similar undertakings of the Sub-Adviser under this Agreement required ~~of an investment adviser of a registered investment company~~ to be maintained pursuant to the Investment Company Act and ~~Advisers Act~~ the rules and regulations promulgated thereunder with respect to transactions made by it on behalf of the Fund including, without limitation, the books and records required by Rule 31a-l under the Investment Company Act, and shall timely furnish to the Adviser all information relating to the Sub-Adviser's services hereunder needed by the Adviser to keep such other books and records of the Fund required by Rule 31a-1 under the Investment Company Act. The Sub-Adviser will also preserve all such books and records for the periods prescribed in Rule 31a-2 under the Investment Company Act. The Sub-Adviser further agrees that all books and records maintained hereunder shall be made available to the Investment Adviser and the ~~rules thereunder~~ Fund at any time upon request, including facsimile, without delay, during any business day. Upon termination of this Agreement, the Sub-Adviser, at it expense, shall promptly upon demand, return to the Investment Adviser and the Fund any and all such records.The Sub-Adviser shall not be required to maintain books and records that are required to be maintained by the Fund’s administrator other than as required of it by applicable laws and regulations. Sub-Adviser shall file with the SEC all forms pursuant to ~~Section 13 of~~ the ~~Exchange Act,~~ 1934 Act with respect to its duties as are set forth herein. ~~(h)~~ H. The Sub-Adviser will, unless and until otherwise directed by the ~~Adviser or the Board and consistent with seeking the best interests of each Fund~~Investment Adviser, exercise ~~(or not exercise in its discretion)~~ all investor rights ~~of security holders~~ with respect to ~~securities held by each~~ the Fund’s assets, including, but not limited to: , voting ~~proxies, converting, tendering, exchanging or redeeming securities; acting as~~ proxies in accordance with the Sub- Adviser’s then-current proxy voting policies and procedures. The Sub-Adviser will report quarterly to the Investment Adviser and the Fund regarding such voting in a ~~claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in~~ format reasonably requested by the ~~context of a bankruptcy or other reorganization. Unless the~~ Investment Adviser or the ~~Board gives~~ Fund. The Sub-Adviser represents that it has adopted and implemented written ~~instructions~~ policies and procedures that are reasonably designed to ensure that the Sub-Adviser votes proxies in the best interest of the Fund in compliance with the requirements of Rule 206(4)-6 under the Advisers Act. The Sub-Adviser shall promptly provide notice and copies of any material changes to its policies procedures or other guidelines for voting proxies to the ~~contrary~~Fund and the Investment Adviser. Upon request, the Sub-Adviser shall ~~vote all proxies solicited~~ provide the Investment Adviser and the Fund with a complete and current copy of its policies, procedures and other guidelines or a description of the same for the purpose of disclosing such information in the Fund’s prospectus or as otherwise required by ~~or with respect~~ applicable law. The Sub-Adviser will promptly inform and forward to the ~~issuers of securities in which assets of the Fund may be invested in accordance with the~~ Investment Adviser any and all information received by Sub-~~Adviser's proxy voting guidelines~~Adviser relating to any class action or other litigation, ~~a copy of which has been provided to~~ any bankruptcy matters, or any other legal proceedings involving the ~~Adviser~~Fund’s portfolio investments.

Appears in 1 contract

Samples: Investment Sub Advisory Agreement (Rivernorth Opportunities Fund, Inc.)

SERVICES TO BE RENDERED BY THE SUB. ~~ADVISER~~ADVISER TO THE TRUST ~~(a) Subject~~ A. As sub-adviser to ~~the supervision of the Adviser and the Board~~each Fund, the Sub-Adviser ~~shall manage~~ will coordinate the investment ~~operations~~ and reinvestment of the assets of the Fund and determine the composition of the assets ~~assigned to the Sub-Adviser by the Adviser ("portfolio")~~ of ~~each Fund, including the purchase, retention and disposition of the securities and other instruments held by~~ the Fund, in accordance with ~~such~~ the terms of this Agreement, the Fund~~'s investment objective and policies as stated in the then-current prospectus ("PROSPECTUS")~~ ’s Prospectus and Statement of Additional Information ("“SAI~~") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT"~~”), as ~~such Prospectus~~ currently in effect and ~~SAI are~~ as amended or supplemented from time to time~~. As part~~ , and subject to the direction, supervision and control of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Investment Adviser and the Sub-Adviser of all material facts concerning the investment and reinvestment of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the Board, and the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii) in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the following: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws Trustees of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund(s) (the "APPLICABLE LAWS"); (v) the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time; (vi) the Trust's policies and procedures adopted from time to time by the Board; and (vii) the written instructions of the Adviser. Prior to the commencement of the Sub-Adviser's ’s services hereunder, the Investment Adviser shall provide the Sub-Adviser with current copies of the ~~Trust Declaration, By-Laws,~~ Fund’s Prospectus and ~~SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief~~SAI. The ~~Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The~~ Investment Adviser undertakes to provide the Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to ~~any such above-mentioned document or information. (c) In furnishing services hereunder,~~ the Fund’s Prospectus and SAI and the Sub-Adviser will not ~~consult with any other investment adviser~~ need to (i) the Fund, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit the Sub-Adviser from consulting with any of its affiliated persons concerning transactions in securities or other assets. This also shall not be deemed to prohibit the Sub-Adviser from consulting with any of the other covered advisers concerning compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have comply until a copy has been provided to the Sub-Adviser ~~or (ii) as described in~~ and agreed upon. B. If directed by the ~~Trust's Prospectus and SAI. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees~~Investment Adviser, the Sub-Adviser ~~shall seek~~ is authorized to ~~achieve~~ place orders for the ~~Fund "best execution"~~purchase and sale of securities for the Funds with or through such brokers, ~~considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from~~ dealers or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund. (e) Subject to the appropriate policies and procedures approved by the Board, banks as the Sub-Adviser ~~may~~may select and, subject to ~~the extent consistent with the safe harbor set forth in~~ Section 28(e) of the Securities Exchange Act of 1934, as amended (~~"EXCHANGE ACT"~~the “Exchange Act”), ~~cause each Fund to~~ review by the Investment Adviser and the Trustees and other applicable law, may pay ~~a broker or dealer that provides brokerage or research services to the Adviser, the Sub-Adviser or the Fund an amount of commission for effecting a portfolio transaction~~ commissions on transactions in excess of the amount of ~~commission~~ commissions another broker or dealer would have ~~charged~~ charged. The Sub-Adviser will seek best execution under the circumstances of the particular transaction taking into consideration the full range and quality of a broker’s services in placing brokerage including, among other things, the value of research provided as well as execution capability, commission rate, financial responsibility and responsiveness to the Sub-Adviser. The Sub-Adviser may aggregate sales and purchase orders of securities or derivatives held in the Fund with similar orders being made simultaneously for ~~effecting that transaction if~~ other portfolios managed by the Sub-Adviser ~~determines~~if, in ~~good faith, that such amount of commission is reasonable in relationship to the value of such brokerage or research services provided viewed in terms of that particular transaction or~~ the Sub-Adviser's reasonable judgment, such aggregation shall result in an overall ~~responsibilities~~ economic benefit to the Fund ~~or its other advisory clients. To the extent consistent~~ in accordance with ~~Section 28(e) and the Board,~~ the Sub-~~Adviser shall not be deemed to have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason of such action~~Adviser’s policies and procedures. ~~Subject to seeking best execution, the Board or the Adviser may authorize, but not require, the~~ Sub-Adviser agrees to ~~effect transactions in portfolio securities through broker-dealers in~~ provide the Investment Adviser with a ~~manner that will help generate resources to pay the cost~~ copy of ~~certain expenses that the Trust is required to pay or for which the Trust is required to arrange payment~~these policies and procedures. ~~(f) On occasions when the Sub-~~C. The Investment Adviser ~~deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Sub-Adviser~~ understands and its affiliates, the Sub-Adviser to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner which the Sub-Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser agrees that the Sub-Adviser performs investment management services for various clients and ~~its affiliates~~ may ~~give advice and~~ take action ~~in the performance of their duties~~ with respect to any of ~~their~~ its other clients ~~that~~ which may differ from ~~advice given,~~ action taken or from the timing or nature of ~~actions taken, with respect to~~ action taken by the Sub-Adviser for the Fund. The Adviser also acknowledges that the Sub-Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Fund, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the Sub-Adviser~~, its affiliates, officers or employees~~ ’s authority hereunder shall not be impaired because of the fact that it may ~~purchase or sell~~ effect transactions with respect to securities for its ~~or their~~ own account or for the ~~account~~ accounts of ~~any client~~others which it manages which are identical or similar to securities to which it may, if in directed by the ~~sole and absolute discretion of the Sub-Adviser it is for any reason impractical or undesirable to take such action or make such recommendation~~ Investment Adviser, effect transactions for the ~~Fund~~Fund at the same or similar times. ~~(g)~~ D. The Sub-Adviser will provide Investment Adviser with copies of the Sub-Adviser’s current policies and procedures adopted in accordance with Rule 206(4)-7 under the Adviser Act. Only to the extent that the Fund(s) are required by the Investment Company Act to adopt any such policy or procedure, the Investment Adviser will submit such policy or procedure to the Trust’s Board of Trustees for adoption or ratification by each of the Funds, with such modifications or additions thereto as the Board of Trustees or the Investment Adviser may recommend subject to the concurrence of the Sub-Adviser. E. The Adviser and Sub-Adviser will maintain and preserve all accounts, books and records with respect to ~~each~~ the Fund as are required of an investment adviser of a registered investment company pursuant to the ~~Investment Company~~ 1940 Act and the Advisers Act and the rules thereunder and the Adviser shall file with the SEC all forms pursuant to ~~Section 13~~ Sections 13D, 13F and 13G of the Exchange ~~Act~~Act solely on its own behalf (and those filings remain the property of the Sub-Adviser), with respect to its ~~duties as are set forth herein. (h)~~ investments or holdings. The Fund or the Sub-Adviser ~~will~~may have its own filing obligations with respect to Sections 13D, ~~unless and until otherwise~~ 13F or 13G under the Exchange Act. The records relating to the services provided under this Agreement shall be the property of the Fund. The Fund, the Sub-Adviser or the Investment Adviser shall have the right to copies of such records if required under applicable law. F. If directed by the Investment Adviser, the Sub-Adviser ~~or the Board and consistent with seeking the best interests of each Fund,~~ will exercise ~~(or not exercise in its discretion)~~ all investment rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the Sub-Adviser shall vote all proxies ~~solicited by or with respect to the issuers of securities in which assets of the Fund may be invested~~ in accordance with the Sub-Adviser's ’s then-current proxy voting ~~guidelines, a copy of which has been provided~~ policies. Notwithstanding anything else to the contrary in this Agreement, the Sub-Adviser will not compile or file claims or take any related actions on behalf of the Fund or Investment Adviser in any class action, bankruptcy or other legal proceeding related to the securities currently or previously held in the Fund, unless otherwise agreed to in writing by the Investment Adviser and the Fund. However, the Sub-Adviser shall provide factual information in its possession as the Portfolio or the Investment Adviser may reasonably request. G. The Sub-Adviser will make available and provide information concerning the Sub-Adviser required by the Fund in the preparation of registration statements, reports and other documents required by federal and state securities laws, and such other information as the Fund or the Investment Adviser may reasonably request for use in the preparation of such documents, or of other materials necessary or helpful for the distribution of the Fund’s shares, subject to the express use of name approval rights of the Sub-Adviser pursuant to Section 14 of this Agreement. Subject to paragraph 5 of this Agreement, the Fund, Trust, Adviser or principal underwriter shall be solely responsible for the compliance of promotional materials with applicable laws and rules, including those of any applicable self-regulatory organization, subject to Section 14 of this Agreement. H. In the performance of its duties and obligations under this Agreement, the Sub-Adviser shall act in conformity with the Fund’s Prospectuses and SAI and with the instructions and directions of the Investment Adviser and of the Trustees and will conform and comply with the applicable requirements of the 1940 Act, the Internal Revenue Code of 1986, as amended, and all other applicable federal and state laws and regulations, as each is amended from time to time. I. The Sub-Adviser at its own expense will make available to the Trustees and the Adviser at reasonable times its portfolio managers and other appropriate personnel, either in person or, at the mutual convenience of the Investment Adviser and the Sub-Adviser, by telephone, in order to review the investment policies, performance and other investment related information regarding a Fund and to consult with the Trustees of the Fund and Investment Adviser regarding each Portfolio’s investment affairs, including economic, statistical and investment matters related to the Sub-Adviser’s duties hereunder, and will provide periodic reports to the Investment Adviser or the Trustees relating to the investment strategies it employs. The Sub-Adviser and its personnel shall also cooperate fully with the commercially reasonable requests of counsel and auditors for, and the Chief Compliance Officers of, the Investment Adviser and the Trust. J. The Sub-Adviser will review draft reports to shareholders and other documents provided or available to it and provide comments on a timely basis. The Investment Adviser or the Fund will provide such documents to the Sub-Adviser in a reasonable timeframe prior to the due date. In addition, the Sub-Adviser and each officer and portfolio manager thereof designated by the Investment Adviser will provide on a timely basis such certifications or sub-certifications as the Investment Adviser or the Fund may reasonably request in order to support and facilitate certifications required to be provided by the Trust’s Principal Executive Officer and Principal Accounting Officer.

Appears in 1 contract

Samples: Sub Advisory Agreement (ALPS ETF Trust)

SERVICES TO BE RENDERED BY THE SUB. ~~ADVISER~~ADVISER TO THE TRUST ~~(a) Subject~~ A. As sub-adviser to ~~the supervision of the Adviser and the Board~~each Fund, the Sub-Adviser ~~shall manage~~ will coordinate the investment ~~operations~~ and reinvestment of the assets of the Fund Account and determine the composition of the assets ~~assigned to the Sub-Adviser by the Adviser ("portfolio") of each Fund, including the purchase, retention and disposition~~ of the ~~securities and other instruments held by the Fund~~Fund Account, in accordance with ~~such~~ the terms of this Agreement, a Fund~~'s investment objective and policies as stated in the then-current prospectus ("PROSPECTUS")~~ ’s Prospectus and Statement of Additional ~~Information ("SAI") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT")~~Information, as ~~such Prospectus~~ currently in effect and ~~SAI are~~ as amended or supplemented from time to time~~. As part~~ , and subject to the direction, supervision and control of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Investment Adviser and the ~~Sub-Adviser of all material facts concerning the investment and reinvestment~~ Trustees of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the Board, and the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii) in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the . The Sub-Adviser shall initially determine ~~and make such modifications to~~ the identity and number of ~~shares of the Deposit Securities and~~ securities in the Fund ~~Securities required~~ Account that will be applicable that day to redemption requests received for ~~a Fund Deposit or Redemption for each~~ the Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust~~'s Custodian~~ ’s custodian with respect to such ~~designation) (capitalized terms have the meaning set forth in the Funds' prospectus~~designations). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the following: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund(s) (the "APPLICABLE LAWS"); (v) the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time; (vi) the Trust's policies and procedures adopted from time to time by the Board; and (vii) the written instructions of the Adviser. Prior to the commencement of the Sub-Adviser's ’s services hereunder, the Investment Adviser shall provide the Sub-Adviser with current copies of the ~~Trust Declaration, By-Laws,~~ Fund’s Prospectus and ~~SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief~~Statement of Additional Information. The ~~Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The~~ Investment Adviser undertakes to provide the Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to ~~any such above-mentioned document or information. (c) In furnishing services hereunder,~~ the Fund’s Prospectus and Statement of Additional Information and the Sub-Adviser will not ~~consult~~ need to comply until a copy has been provided to the Sub-Adviser. In connection with any ~~other investment adviser~~ swap (as defined in the Commodity Exchange Act of 1936, as amended, and the rules and regulations promulgated by the Commodity Futures Exchange Commission thereunder) trading activity that the Sub-Adviser may conduct as agent for, and on behalf of, the Fund in respect of the Fund Account, the Investment Adviser agrees to (i) ~~the Fund~~provide any form, ~~(ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities~~ certification or other ~~assets. (This shall not be deemed~~ information reasonably requested by and acceptable to ~~prohibit~~ the Sub-Adviser from consulting with any of its affiliated persons concerning transactions in securities or other assets. This also shall not be deemed to prohibit the Sub-Adviser from consulting with any of the other covered advisers concerning compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all that is necessary ~~facilities and personnel, including salaries, expenses and fees of any personnel required~~ for the Sub-Adviser to ~~faithfully perform its duties under this Agreement;~~ comply with applicable regulatory requirements and (ii) ~~administrative facilities~~update or replace such form, ~~including bookkeeping~~certification or information as Sub-Adviser deems necessary. In addition, the Investment Adviser agrees that the Sub-Adviser may enter into any other contracts, agreements and ~~all equipment necessary for the efficient conduct of~~ undertakings as may in the Sub-Adviser~~'s duties under this Agreement~~’s opinion be reasonably necessary or advisable to amend existing swap documentation or enter into new swap documentation to facilitate compliance with applicable regulatory requirements. The Investment Adviser acknowledges and agrees that any failure to provide such certification or other information may prevent the Sub-Adviser ~~will select brokers~~ from entering into any such swap it may otherwise deem advisable and ~~dealers~~ may adversely affect the Fund Account. B. Subject to ~~effect all portfolio transactions subject~~ Investment Adviser’s written instructions to the ~~conditions set forth herein which may include~~ contrary, the Sub-Adviser shall have complete discretion to designate brokers ~~and~~ or dealers, including brokers or dealers that are affiliated with the Sub-Adviser ~~if and as permitted by applicable law. The Sub-Adviser will~~ (collectively, “brokers”), to place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have been provided to the Sub-Adviser or (ii) as described in the Trust's Prospectus and SAI. In placing any orders for the purchase or and sale of ~~investments for each Fund, in the name of the Fund or its nominees, the Sub-Adviser shall seek to achieve~~ securities for the Fund ~~"best execution"~~Account with or through such brokers and, ~~considering all of the circumstances, and shall maintain records adequate~~ subject to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund. (e) Subject to the appropriate policies and procedures approved by the Board, the Sub-Adviser may, to the extent consistent with the safe harbor set forth in Section 28(e) of the Securities Exchange Act of 1934, as amended (~~"EXCHANGE ACT"~~the “Exchange Act”), ~~cause each Fund to~~ review by the Adviser and the Board, and other applicable law, may pay ~~a broker or dealer that provides brokerage or research services to the Adviser, the Sub-Adviser or the Fund an amount of commission for effecting a portfolio transaction~~ commissions on transactions in excess of the amount of ~~commission~~ commissions another broker or dealer would have ~~charged~~ charged. The Sub-Adviser shall have no duty to obtain the absolute lowest commission or best net price for ~~effecting that~~ the Fund Account on any particular transaction, but will seek best execution under the circumstances of the particular transaction if taking into consideration the full range and quality of a broker’s services in placing brokerage including, among other things, the value of research provided as well as execution capability, commission rate, financial responsibility and responsiveness to the Sub-Adviser. The Sub-Adviser may aggregate sales and purchase orders of securities or derivatives held in the Fund Account with similar orders being made simultaneously for other portfolios managed by the Sub-Adviser ~~determines, in good faith~~provided, that over time no more favorable terms will be given to any single account or other client. It is understood that such ~~amount~~ aggregation of ~~commission is reasonable in relationship~~ orders may on some occasions operate to the ~~value~~ disadvantage of ~~such brokerage or research services provided viewed in terms of that particular transaction or~~ the ~~Sub-Adviser's overall responsibilities to the Fund or its other advisory clients~~Fund. To the extent ~~consistent with Section 28(e) and the Board~~permitted by law, the Sub-Adviser ~~shall not be deemed to have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason~~ may purchase securities from an unaffiliated syndicate member in an underwriting in which an affiliated broker-dealer participates in the management activities of ~~such action. Subject to seeking best execution,~~ the ~~Board or the Adviser may authorize, but not require~~syndicate. C. On occasion, the Sub-Adviser may find it beneficial to ~~effect transactions~~ engage in ~~portfolio securities through broker~~“cross-~~dealers in a manner that will help generate resources to pay~~ trading”, which cross-trading may involve the ~~cost~~ Fund Account. For purposes of ~~certain expenses that the Trust is required to pay or for which the Trust is required to arrange payment. (f) On occasions when the Sub~~this Agreement, “cross-~~Adviser deems~~ trading” shall mean the purchase or and sale of ~~a security to be in~~ securities between the ~~best interest of the Fund(s) as well as~~ Fund Account, on one hand, and one or more other unrelated, discretionary clients ~~of the Sub-Adviser and its affiliates, the Sub-Adviser to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be purchased~~ managed or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made advised by the Sub-Adviser or its affiliates, on the other hand. The Sub-Adviser will only engage in cross-trading if each of the ~~manner which~~ following conditions is met: (i) such crossing of trades is beneficial for all client parties involved, (ii) the Sub-Adviser ~~considers~~ achieves best execution for all client parties involved, (iii) the proposed cross-trade is priced on the basis of Rule 17a-7(b) under the U.S. Investment Company Act of 1940, as amended from time to be time and the ~~most equitable~~ rules and ~~consistent~~ regulations promulgated thereunder (the “1940 Act”), (iv) the proposed cross-trade is in compliance with ~~its fiduciary obligations~~ the Investment Company Act, and any Fund policy applicable to ~~each Fund and to its other clients over time. The Adviser agrees that~~ such transactions, (v) the Sub-Adviser and its affiliates will not receive any compensation, either directly or indirectly, for affecting any such cross-trade, other than the fees charged in accordance with this Agreement and any management or advisory fees paid with respect to the other advised account(s), and (vi) the Sub-Adviser will not charge the Fund any transaction charge or brokerage charge in connection with the transaction. Notwithstanding the foregoing, without the prior consent of the Investment Adviser (and to the extent otherwise in compliance with Section 206(3) of the Advisers Act), neither the Sub-Adviser nor its affiliates will enter into any transaction involving the Fund that is a Principal Transaction or an Agency Cross Transaction, in each case as defined under Section 206(3) of the Advisers Act. All details of any cross-trade will be fully disclosed by the Sub-Adviser to the Fund promptly after the transaction has been completed. In addition, the Sub-Adviser will provide the Fund with prompt notice of any cross-trade as well as a comparison of the price used in connection with the transaction and the closing price for the security for such day or the best independent bid and best independent offer report for such security on such day, as well as the trading volume in the security for such day and the size of the transaction. The Investment Adviser may ~~give advice~~ revoke the consent referred to in this subsection 3(C) by written notice to the Sub-Adviser at any time. D. The Investment Adviser understands and agrees that the Sub-Adviser performs investment management services for various clients and may take action ~~in the performance of their duties~~ with respect to any of ~~their~~ its other clients ~~that~~ which may differ from ~~advice given,~~ action taken or from the timing or nature of ~~actions taken, with respect to the Fund. The Adviser also acknowledges that~~ action taken by the Sub-Adviser ~~and~~ for the Fund Account. The Sub-Adviser’s authority hereunder shall not be impaired because of the fact that it, its affiliates and personnel may effect transactions with respect to securities for their own accounts or for the accounts of others which they manage which are ~~fiduciaries~~ identical or similar to ~~other entities, some of~~ securities to which ~~have~~ the Sub-Adviser may effect transactions for the Fund Account at the same or similar ~~investment objectives (and will hold the same or similar investments) as the Fund, and that the~~ times. E. The Sub-Adviser will ~~carryout its duties hereunder together~~ provide the Investment Adviser with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that summaries of the Sub-Adviser’s current policies and procedures adopted in accordance with Rule 206(4)-7 under the Advisers Act. To the extent the Fund(s) are required by the 1940 Act to adopt any such policy or procedure, ~~its affiliates~~the Investment Adviser will submit such policy or procedure to the Trust’s Board of Trustees for adoption by each of the Funds, ~~officers~~ with such modifications or ~~employees~~ additions thereto as the Board of Trustees or the Investment Adviser may ~~purchase or sell for its or their own account or for~~ recommend with the ~~account of any client, if in the sole and absolute discretion~~ concurrence of the Sub-~~Adviser it is for any reason impractical or undesirable to take such action or make such recommendation for the Fund~~Adviser. ~~(g)~~ F. The Sub-Adviser will maintain and preserve all accounts, books and records with respect to ~~each~~ the Fund Account as are required of an investment adviser of a registered investment company pursuant to the ~~Investment Company~~ 1940 Act and the Advisers Act and the rules thereunder and shall file with the ~~SEC~~ U.S. Securities and Exchange Commission (“SEC”) all forms pursuant to ~~Section 13~~ Sections 13F and 13G of the Exchange Act, with respect to its duties as are set forth herein. The records relating to the services provided under this Agreement shall be the property of the Fund. ~~(h)~~ G. The Sub-Adviser will, unless and until otherwise directed by the ~~Adviser or the Board and consistent with seeking the best interests of each Fund~~Investment Adviser, exercise ~~(or not exercise in its discretion)~~ all voting rights of security holders with respect to securities held ~~by each Fund~~in the Fund Account, including, but not limited to: voting proxies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the Sub-Adviser shall vote all proxies ~~solicited by or with respect to the issuers of securities in which assets of the Fund may be invested~~ in accordance with the Sub-Adviser's ’s then-current proxy voting ~~guidelines, a copy of which has been provided~~ policies. The Investment Adviser shall instruct the Fund’s custodian to forward promptly to the Sub-Adviser or to Sub-Adviser’s third party proxy service provider (currently Institutional Shareholder Services), as indicated by the Sub-Adviser in writing from time to time, upon receipt of such communications, and shall instruct the Funds’ custodian to follow the Sub-Adviser’s instructions concerning the same. The Sub-Adviser shall not be responsible for voting proxies or for responding to any shareholder actions not timely received by the Sub-Adviser. H. The Sub-Adviser will make available and provide financial, accounting and statistical information concerning the Sub-Adviser required by the Fund in the preparation of registration statements, reports and other documents required by federal and state securities laws, and such other information as the Fund or the Investment Adviser may reasonably request for use in the preparation of such documents or of other materials necessary for the distribution of the Fund’s shares. I. In the performance of its duties and obligations under this Agreement, the Sub-Adviser shall act in conformity with the Fund’s Prospectuses and Statements of Additional Information and with the instructions and directions of the Investment Adviser and of the Board of Trustees and will conform and comply with the applicable requirements of the 1940 Act, the Internal Revenue Code of 1986, as amended, and all other applicable federal and state laws and regulations, as each is amended from time to time. J. The Sub-Adviser at its expense will make available to the Trustees and the Investment Adviser at reasonable times its portfolio managers and other appropriate personnel, either in person or, at the mutual convenience of the Investment Adviser and the Sub-Adviser, by telephone, in order to review the investment policies, performance and other investment related information regarding a Fund and to consult with the Trustees of the Funds and Investment Adviser regarding each Fund’s investment affairs, including economic, statistical and investment matters related to the Sub-Adviser’s duties hereunder, and will provide periodic reports to the Investment Adviser or the Trustees relating to the investment strategies it employs. The Sub-Adviser and its personnel shall also cooperate as reasonably necessary with counsel and auditors for, and the Chief Compliance Officers of, the Investment Adviser and the Trust. K. The Sub-Adviser will review draft reports to shareholders and other documents provided or available to it and provide comments on a timely basis. The Investment Adviser or the Fund will provide such documents to the Sub-Adviser in a reasonable timeframe prior to the due date. In addition, the Sub-Adviser and each officer and portfolio manager thereof designated by the Investment Adviser will provide on a timely basis such certifications or sub-certifications as the Investment Adviser or the Fund may reasonably request in order to support and facilitate certifications required to be provided by the Trust’s Principal Executive Officer and Principal Accounting Officer.

Appears in 1 contract

Samples: Sub Advisory Agreement (Financial Investors Trust)

SERVICES TO BE RENDERED BY THE SUB. ~~ADVISER~~ADVISER TO THE TRUST ~~(a) Subject~~ A. As sub-adviser to ~~the supervision of the Adviser and the Board~~each Fund, the Sub-Adviser ~~shall manage~~ will coordinate the investment ~~operations~~ and reinvestment of the assets of the Fund allocated to it hereunder and determine the composition of ~~the~~ such assets ~~assigned to the Sub-Adviser by the Adviser ("portfolio")~~ of ~~each Fund, including the purchase, retention and disposition of the securities and other instruments held by~~ the Fund, in accordance with ~~such~~ the terms of this Agreement, the Fund~~'s investment objective~~ ’s Prospectuses and ~~policies as stated in the then-current prospectus ("PROSPECTUS") and Statement~~ Statements of Additional ~~Information ("SAI") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT")~~Information, as ~~such Prospectus~~ currently in effect and ~~SAI are~~ as amended or supplemented from time to time~~. As part~~ , and subject to the direction, supervision and control of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Investment Adviser and the Sub-Adviser of all material facts concerning the investment and reinvestment of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the Board, and the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii) in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the following: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws Trustees of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund(s) (the "APPLICABLE LAWS"); (v) the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time; (vi) the Trust's policies and procedures adopted from time to time by the Board; and (vii) the written instructions of the Adviser. Prior to the commencement of the Sub-Adviser's ’s services hereunder, the Investment Adviser shall provide the Sub-Adviser with current copies of the ~~Trust Declaration, By-Laws, Prospectus~~ Fund’s Prospectuses and ~~SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief~~Statements of Additional Information (“SAI”). The ~~Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The~~ Investment Adviser undertakes to provide the Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to ~~any such above-mentioned document or information. (c) In furnishing services hereunder~~the Fund’s Prospectuses and Statements of Additional Information, and the Sub-Adviser will not ~~consult with any other investment adviser~~ need to (i) the Fund, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit the Sub-Adviser from consulting with any of its affiliated persons concerning transactions in securities or other assets. This also shall not be deemed to prohibit the Sub-Adviser from consulting with any of the other covered advisers concerning compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have comply until a copy has been provided to the Sub-Adviser. The Investment Adviser undertakes to highlight changes to the Fund’s investment objective, policies or ~~(ii) as described~~ restrictions in ~~the Trust's Prospectus and SAI. In placing~~ any supplements, revisions or updated prospectus or SAI to facilitate compliance with such policies. B. The Sub-Adviser is authorized to place orders for the purchase or and sale of ~~investments~~ securities for ~~each Fund, in the name of~~ the Fund with or ~~its nominees~~through such brokers, dealers or banks as the Sub-Adviser ~~shall seek~~ may select and, subject to achieve for the Fund "best execution", considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund. (e) Subject to the appropriate policies and procedures approved by the Board, the Sub-Adviser may, to the extent consistent with the safe harbor set forth in Section 28(e) of the Securities Exchange Act of 1934, as amended (~~"EXCHANGE ACT"~~the “Exchange Act”), ~~cause each Fund to~~ review by the Adviser and the Trustees, and other applicable law, may pay ~~a broker or dealer that provides brokerage or research services to the Adviser, the Sub-Adviser or the Fund an amount of commission for effecting a portfolio transaction~~ commissions on transactions in excess of the amount of ~~commission~~ commissions another broker or dealer would have ~~charged for effecting that transaction if the~~ charged. The Sub-Adviser ~~determines~~will seek best execution under the circumstances of the particular transaction taking into consideration the full range and quality of a broker’s services in placing brokerage including, ~~in good faith~~among other things, ~~that such amount of commission is reasonable in relationship to~~ the value of ~~such brokerage or~~ research ~~services~~ provided ~~viewed in terms of that particular transaction or~~ as well as execution capability, commission rate, financial responsibility and responsiveness to the Sub-Adviser~~'s overall responsibilities to the Fund or its other advisory clients~~. ~~To the extent consistent with Section 28(e) and the Board, the~~ The Sub-Adviser ~~shall not be deemed to have acted unlawfully~~ may aggregate sales and purchase orders of securities or to have breached any duty created by this Agreement or otherwise solely by reason of such action. Subject to seeking best execution, the Board or the Adviser may authorize, but not require, the Sub-Adviser to effect transactions in portfolio securities through broker-dealers in a manner that will help generate resources to pay the cost of certain expenses that the Trust is required to pay or for which the Trust is required to arrange payment. (f) On occasions when the Sub-Adviser deems the purchase or sale of a security to be derivatives held in the ~~best interest of the Fund(s) as well as~~ Fund with similar orders being made simultaneously for other clients of the Sub-Adviser and its affiliates, the Sub-Adviser to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made portfolios managed by the Sub-Adviser if, in ~~the manner which~~ the Sub-Adviser’s reasonable judgment, such aggregation shall result in an overall economic benefit to the Fund in accordance with the Sub-Adviser’s policies and procedures. A copy of these policies and procedures has been provided to the Investment Adviser. C. The Investment Adviser ~~considers to be the most equitable~~ understands and ~~consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser~~ agrees that the Sub-Adviser performs investment management services for various clients and ~~its affiliates~~ may ~~give advice and~~ take action ~~in the performance of their duties~~ with respect to any of ~~their~~ its other clients ~~that~~ which may differ from ~~advice given,~~ action taken or from the timing or nature of ~~actions taken, with respect to~~ action taken by the Sub-Adviser for the Fund. The Adviser also acknowledges that the Sub-Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Fund, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the Sub-Adviser~~, its affiliates, officers or employees~~ ’s authority hereunder shall not be impaired because of the fact that it may ~~purchase or sell~~ effect transactions with respect to securities for its ~~or their~~ own account or for the ~~account~~ accounts of ~~any client, if in~~ others which it manages which are identical or similar to securities to which it may effect transactions for the ~~sole and absolute discretion~~ Fund at the same or similar times. D. The Sub-Adviser will provide the Investment Adviser with copies of the Sub-Adviser’s current policies and procedures adopted in accordance with Rule 206(4)-7 under the Advisers Act. Only to the extent that the Fund(s) are required by the 1940 Act to adopt or ratify the Sub-Adviser’s specific policy or procedure, the Investment Adviser ~~it is~~ will submit such policy or procedure to the Trust’s Board of Trustees for ~~any reason impractical~~ adoption or ~~undesirable~~ ratification by each of the Funds, with such modifications or additions thereto as the Board of Trustees or the Investment Adviser may recommend subject to ~~take such action or make such recommendation for~~ the ~~Fund~~concurrence of the Sub-Adviser. ~~(g)~~ E. The Sub-Adviser will maintain and preserve all accounts, books and records with respect to ~~each~~ the assets of the Fund allocated to it as are required of an investment adviser of a registered investment company pursuant to the ~~Investment Company~~ 1940 Act and the Advisers Act and the rules thereunder and shall file with the SEC all forms pursuant to Section 13 13D, 13F and 13G of the Exchange ~~Act~~Act solely on its own behalf (and those filings remain the property of the Sub-Adviser), with respect to its ~~duties as are set forth herein~~investments or holdings. The Fund or Adviser may have its own filing obligation with respect to Forms 13D, 13F, or 13G under the Exchange Act. The records relating to the services provided under this Agreement shall be the property of the Fund. The Fund, Sub-Adviser or Adviser shall have the right to copies of such records if required under applicable law. ~~(h)~~ F. The Sub-Adviser will, unless and until otherwise directed by the ~~Adviser or the Board and consistent with seeking the best interests of each Fund~~Investment Adviser, exercise ~~(or not exercise in its discretion)~~ all investment rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the Sub-Adviser shall vote all proxies ~~solicited by or with respect to the issuers of securities in which assets of the Fund may be invested~~ in accordance with the Sub-Adviser's ’s then-current proxy voting ~~guidelines, a copy of which has been provided~~ policies. Notwithstanding anything else to the contrary in this Agreement, Sub-Adviser will not compile or file claims or take any related actions on behalf of the Fund or Investment Adviser in any class action, bankruptcy or other legal proceeding related to securities currently or previously held in the Fund. However, Sub-Adviser shall provide factual information in its possession as the Fund or Investment Adviser may reasonably request. G. The Sub-Adviser will make available and provide information concerning the Sub-Adviser required by the Fund in the preparation of registration statements, reports and other documents required by federal and state securities laws, and such other information as the Fund or the Investment Adviser may reasonably request for use in the preparation of such documents, or of other materials necessary or helpful for the distribution of the Fund’s shares, subject to the express use of name approval rights of the Sub-Adviser pursuant to Section 14 of this Agreement. Subject to paragraph 5 of this Agreement, the Fund, Trust, Adviser or principal underwriter shall be solely responsible for the compliance of promotional materials with applicable laws and rules, including those of any applicable self-regulatory organization. H. In the performance of its duties and obligations under this Agreement, the Sub-Adviser shall act in conformity with the Fund’s Prospectuses and Statements of Additional Information and with the instructions and directions of the Investment Adviser and of the Board of Trustees and will conform and comply with the applicable requirements of the 1940 Act, the Internal Revenue Code of 1986, as amended, and all other applicable federal and state laws and regulations, as each is amended from time to time. I. The Sub-Adviser at its expense will make available to the Trustees and the Investment Adviser at reasonable times its portfolio managers and other appropriate personnel, either in person or, at the mutual convenience of the Investment Adviser and the Sub-Adviser, by telephone, in order to review the investment policies, performance and other investment related information regarding a Fund and to consult with the Trustees of the Funds and Investment Adviser regarding each Fund’s investment affairs, including economic, statistical and investment matters related to the Sub-Adviser’s duties hereunder, and will provide periodic reports to the Investment Adviser or the Trustees relating to the investment strategies it employs. The Sub-Adviser and its personnel shall also cooperate fully with the commercially reasonable requests of counsel and auditors for, and the Chief Compliance Officers of, the Investment Adviser and the Trust. J. The Sub-Adviser will review draft reports to shareholders and other documents provided or available to it and provide comments on a timely basis. The Investment Adviser or the Fund will provide such documents to the Sub-Adviser in a reasonable timeframe prior to the due date. In addition, the Sub-Adviser and each officer and portfolio manager thereof designated by the Investment Adviser will provide on a timely basis such certifications or sub-certifications as the Investment Adviser or the Fund may reasonably request in order to support and facilitate certifications required to be provided by the Trust’s Principal Executive Officer and Principal Accounting Officer.

Appears in 1 contract

Samples: Sub Advisory Agreement (Financial Investors Trust)

SERVICES TO BE RENDERED BY THE SUB. ADVISER ~~(a) Subject~~ A. As sub-adviser to the ~~supervision of the Adviser and the Board~~Fund, ~~the~~ Sub-Adviser ~~shall manage~~ will coordinate and execute the investment ~~operations~~ and reinvestment of the assets of the Fund and determine the composition of the assets ~~assigned to~~ of the Fund. The Sub-Adviser by (and its directors, managers, officers and employees) shall perform all services under this Agreement on a discretionary basis, subject to the ~~Adviser ("portfolio") of each Fund~~general direction, ~~including the purchase, retention~~ supervision and ~~disposition~~ control of the securities and other instruments held by the Fund, in accordance with such Fund's investment objective and policies as stated in the then-current prospectus ("PROSPECTUS") and Statement of Additional Information ("SAI") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT"), as such Prospectus and SAI are amended or supplemented from time to time. As part of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Investment Adviser and the ~~Sub-Adviser~~ Fund’s Board of all material facts concerning the investment and reinvestment of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the BoardTrustees, and ~~the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii)~~ in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the followingstrict conformity with: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers ~~Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange~~ Act and ~~the rules under each,~~ any and all other ~~federal and state laws or regulations~~ applicable to laws; (ii) the Fund’s Declaration of Trust and bylaws; (iii) any and all investment guidelines, instructions and directions provided by the ~~Fund(s~~Investment Adviser or the Fund; (iv) (the ~~"APPLICABLE LAWS")~~Fund’s compliance policies, procedures and guidelines; and (v) the ~~terms~~ investment objectives, policies and ~~conditions~~ restrictions set forth in the prospectus and statement of ~~exemptive~~ additional information contained in the Fund’s Registration Statement on Form N-2 under the Securities Act of 1933, as amended (the “Securities Act”) and ~~no-action relief granted to~~ the ~~Trust~~ Investment Company Act, as currently in effect and as supplemented and/or amended from time to ~~time;~~ time (~~vi)~~ respectively, the ~~Trust's policies~~ “Prospectus”, the “Statement of Additional Information”, and ~~procedures adopted~~ the “Registration Statement”), as each may be modified from time to time by (the ~~Board; and~~ documents described in (~~vii~~ii) through (v) above, the ~~written instructions of the Adviser~~“Fund Documents”). Prior to the commencement of the Sub-Adviser's ’s services hereunder, the Investment Adviser shall provide ~~the~~ Sub-Adviser with current copies of the ~~Trust Declaration, By-Laws, Prospectus and SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief~~Fund Documents. ~~The Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The~~ Investment Adviser undertakes to provide ~~the~~ Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to ~~any such above-mentioned document or information. (c) In furnishing services hereunder~~the Fund Documents, ~~the~~ and Sub-Adviser will not ~~consult with any other investment adviser~~ need to ~~(i)~~ comply until a copy has been provided to Sub-Adviser. Notwithstanding anything contained herein to the ~~Fund~~contrary, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit the should Sub-Adviser ~~from consulting with any of its affiliated persons concerning transactions in securities~~ choose to utilize reverse repurchase agreement obligations, derivative instruments or other ~~assets. This also shall not be deemed~~ instruments or trading practices that, according to ~~prohibit~~ the ~~Sub-~~Securities and Exchange Commission (“SEC”) or its staff, may cause senior securities concerns, the Investment Adviser ~~from consulting with any~~ acknowledges that the monitoring of the ~~other covered advisers concerning~~ use of such instruments or trading practices for compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have been provided to the Sub-Adviser or (ii) as described in the Trust's Prospectus and SAI. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Sub-Adviser shall seek to achieve for the Fund "best execution", considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, or interpretations or modifications by the ~~Advisers Act~~ SEC, SEC staff or other authority with appropriate jurisdiction, is the responsibility of the Sub-Adviser and not the ~~rules under each~~Investment Adviser. The Investment Adviser, and ~~all other federal and state laws or regulations applicable~~ not the Sub-Adviser, is responsible for making recommendations to the ~~Trust~~ Fund regarding, and monitoring (for purposes of Investment Company Act compliance, general market conditions and otherwise), the Fund’s use of bank borrowings (other than reverse repurchase agreements) or other similar term loans and the Fund’s issuance of preferred shares (or other “senior securities” in the form of debt or stock pursuant to Section 18 of the Investment Company Act), if any. The Sub-Adviser shall fully cooperate with the Fund’s and the Investment Adviser’s Chief Compliance Officers, the Fund’s legal counsel, any counsel to the Fund’s trustees who are not “interested persons” of the Fund (as that term is defined under the Investment Company Act) and the Fund’s independent public accounting firm. ~~(e)~~ B. Subject to any direction from the ~~appropriate policies and procedures approved by~~ Investment Adviser or the ~~Board~~Fund, the Sub-Adviser ~~may~~is responsible for placing orders for the execution of portfolio transactions with or through or with such brokers, dealers, counterparties or banks as Sub-Adviser may select. In choosing broker-dealers, Sub-Adviser may take into account, in addition to commission costs and execution capabilities, the ~~extent consistent with~~ financial stability and reputation of the ~~safe harbor set forth~~ broker-dealers and the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of ~~1934~~1934 (the “1934 Act”)) provided by such broker-dealers. In addition, ~~as amended ("EXCHANGE ACT")~~Sub-Adviser may receive brokerage and research services in connection with certain riskless principal transactions, ~~cause each Fund~~ in accordance with applicable law. Sub-Adviser is authorized to pay ~~a broker or dealer that provides~~ broker-dealers who provide such brokerage or research services a commission (or equivalent) for executing a transaction which is in excess of the commissions (or equivalents) another broker-dealer would have charged for executing that transaction, if Sub-Adviser determines that such commission (or equivalent) is reasonable in relation to the value of the brokerage and research services provided to Sub-Adviser by the broker-dealer. Sub-Adviser will use its best efforts to obtain best execution under the circumstances for all portfolio transactions for the Fund and will use its best judgment to choose the broker-dealer most capable of providing the services necessary to obtain most favorable execution under the circumstances, taking into consideration the full range and quality of a broker-dealer’s services in placing transactions with broker-dealers including, among other things, the value of research provided (with respect to evaluating commissions and commission equivalents) as well as execution capability, commission rate (or commission equivalent), financial stability and responsibility, reputation, and responsiveness to the Sub-Adviser. In no event shall Sub-Adviser be under any duty to obtain the lowest commission for the Fund on any particular transaction. Sub-Adviser is not under any duty to execute transactions for the Fund before or after transactions for other like accounts managed by Sub-Adviser, except to the extent that doing so would violate applicable law. Sub-Adviser may aggregate sales and purchase orders of securities or derivatives held in the Fund with similar orders being made simultaneously for other portfolios managed by Sub-Adviser if, in Sub-Adviser’s reasonable judgment, such aggregation shall result in an overall economic benefit to the Fund, taking into consideration the advantageous selling or purchase price, AMECURRENT 705557027.5 24-Apr-13 12:06 brokerage commission, and other expenses. If an aggregate order is executed in parts at different prices, or two or more separate orders for two or more of Sub-Adviser’s clients are entered at approximately the same time on any day and are executed at different prices, Sub-Adviser has discretion, subject to its fiduciary duty to the Fund and its other advisory clients, to use an average price at which such securities were purchased or sold for the Fund and each of the clients for whom such orders were executed. Sub-Adviser may engage in brokerage and other securities transactions on behalf of the Fund with broker-dealer affiliates of Sub-Adviser in accordance with applicable Fund documents and applicable law. C. The Sub-Adviser will furnish to the Investment Adviser and the Fund, from time to time and as the Investment Adviser may request, reports and other data or information on portfolio transactions and reports and other data or information on the Fund’s assets, all in such detail and in such frequency as may be requested from time to time. The Sub-Adviser will also provide the Investment Adviser and the Fund, upon the Investment Adviser’s or the Fund’s request, with economic and investment analysis and reports or other investment services normally available to institutional or other clients of the Sub-Adviser. The Sub-Adviser will make available its officers and employees to meet with the Investment Adviser and the Fund's Board of Trustees to review the investments of the Fund, on a quarterly, or upon due notice, at a time requested by the Investment Adviser or the Fund’s Board of Trustees. D. Investment Adviser understands and agrees that Sub-Adviser performs investment management services for various clients and may take action with respect to any of its other clients which may differ from action taken or from the timing or nature of action taken by Sub-Adviser for the Fund. Sub-Adviser’s authority hereunder shall not be impaired because of the fact that it may effect transactions with respect to securities for its own account or for the accounts of others which it manages which are identical or similar to securities to which it may effect transactions for the Fund at the same or similar times. E. The Sub-Adviser also will promptly furnish and make available to the Fund such information concerning the Sub-Adviser and its services hereunder as the Investment Adviser or the Fund may request in the preparation of the Fund’s or the Investment Adviser’s regulatory filings, reports and other documents or in the fulfillment of its other compliance obligations. The Sub-Adviser will review draft filings, reports and other documents provided to it, and provide comments/corrections to the same on a timely basis. In addition, the Sub-Adviser will provide on a timely basis such certifications or sub-certifications as the Investment Adviser or the Fund ~~an amount~~ may reasonably request in order to support and facilitate certifications required to be provided by the Investment Adviser or the Fund (or their officers) from time to time. F. The Sub-Adviser shall promptly provide the Investment Adviser’s and the Fund’s Chief Compliance Officer (“CCO”), upon request, copies of ~~commission~~ its policies and procedures for ~~effecting a portfolio transaction in excess of the amount of commission another broker or dealer would have charged for effecting that transaction if~~ compliance by the Sub-Adviser ~~determines~~and the Fund with the Federal Securities Laws as defined in Rule 38a-1 under the Investment Company Act and promptly provide the CCO with copies of any material changes to those policies and procedures. The Sub-Adviser shall fully cooperate with the CCO as to facilitate the CCO’s performance of his/her responsibilities under Rule 38a-1 to review, ~~in good faith, that such amount of commission is reasonable in relationship~~ evaluate and report to the ~~value~~ Fund’s Board of ~~such brokerage or research services provided viewed in terms~~ Trustees on the operation of ~~that particular transaction or~~ the Sub-Adviser~~'s overall responsibilities~~ ’s compliance policies and procedures and shall promptly report to the ~~Fund or its other advisory clients~~CCO any “Material Compliance Matter” as defined by Rule 38a-1(e)(2). ~~To the extent consistent with Section 28(e) and the Board~~At least annually, the Sub-Adviser shall not be deemed to have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason of such action. Subject to seeking best execution, the Board or the Adviser may authorize, but not require, the Sub-Adviser to effect transactions in portfolio securities through broker-dealers in provide a manner that will help generate resources to pay the cost of certain expenses that the Trust is required to pay or for which the Trust is required to arrange payment. (f) On occasions when the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Sub-Adviser and its affiliates, the Sub-Adviser certification to the ~~extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate~~ CCO to the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner which the Sub-Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser agrees effect that the Sub-Adviser has in place and ~~its affiliates may give advice~~ has implemented policies and ~~take action in~~ procedures that are reasonably designed to ensure compliance by the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Fund. The Adviser also acknowledges that Fund and the Sub-Adviser ~~and its affiliates are fiduciaries to other entities, some of which have~~ with the same or similar investment objectives (and will hold the same or similar investments) as the Fund, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the Sub-Adviser, its affiliates, officers or employees may purchase or sell for its or their own account or for the account of any client, if in the sole and absolute discretion of the Sub-Adviser it is for any reason impractical or undesirable to take such action or make such recommendation for the FundFederal Securities Laws. ~~(g)~~ G. The Sub-Adviser will maintain all ~~accounts,~~ books and records ~~with respect~~ relating to ~~each Fund as are~~ investment decisions, trade orders and similar undertakings of the Sub-Adviser under this Agreement required ~~of an investment adviser of a registered investment company~~ to be maintained pursuant to the Investment Company Act and ~~Advisers Act~~ the rules and regulations promulgated thereunder with respect to transactions made by it on behalf of the Fund including, without limitation, the books and records required by Rule 31a-l under the Investment Company Act, and shall timely furnish to the Adviser all information relating to the Sub-Adviser's services hereunder needed by the Adviser to keep such other books and records of the Fund required by Rule 31a-1 under the Investment Company Act. The Sub-Adviser will also preserve all such books and records for the periods prescribed in Rule 31a-2 under the Investment Company Act. The Sub-Adviser further agrees that all books and records maintained hereunder shall be made available to the Investment Adviser and the ~~rules thereunder~~ Fund at any time upon request, including facsimile, without delay, during any business day. Upon termination of this Agreement, the Sub-Adviser, at it expense, shall promptly upon demand, return to the Investment Adviser and the Fund any and all such records. The Sub-Adviser shall not be required to maintain books and records that are required to be maintained by the Fund’s administrator other than as required of it by applicable laws and regulations. Sub-Adviser shall file with the SEC all forms pursuant to ~~Section 13 of~~ the ~~Exchange Act,~~ 1934 Act with respect to its duties as are set forth herein. ~~(h)~~ H. The Sub-Adviser will, unless and until otherwise directed by the ~~Adviser or the Board and consistent with seeking the best interests of each Fund~~Investment Adviser, exercise ~~(or not exercise in its discretion)~~ all investor rights ~~of security holders~~ with respect to ~~securities held by each~~ the Fund’s assets, including, but not limited to: , voting proxies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the Sub-Adviser shall vote all proxies ~~solicited by or with respect to the issuers of securities in which assets of the Fund may be invested~~ in accordance with the Sub-Adviser's ’s then-current proxy voting ~~guidelines~~policies and procedures. The Sub-Adviser will report quarterly to the Investment Adviser and the Fund regarding such voting in a format reasonably requested by the Investment Adviser or the Fund. The Sub-Adviser represents that it has adopted and implemented written policies and procedures that are reasonably designed to ensure that the Sub-Adviser votes proxies in the best interest of the Fund in compliance with the requirements of Rule 206(4)-6 under the Advisers Act. The Sub-Adviser shall promptly provide notice and copies of any material changes to its policies procedures or other guidelines for voting proxies to the Fund and the Investment Adviser. Upon request, the Sub-Adviser shall provide the Investment Adviser and the Fund with a complete and current copy of ~~which has been provided~~ its policies, procedures and other guidelines or a description of the same for the purpose of disclosing such information in the Fund’s prospectus or as otherwise required by applicable law. The Sub-Adviser will promptly inform and forward to the ~~Adviser~~Investment Adviser any and all information received by Sub-Adviser relating to any class action or other litigation, any bankruptcy matters, or any other legal proceedings involving the Fund’s portfolio investments.

Appears in 1 contract

Samples: Investment Sub Advisory Agreement (Principal Real Estate Income Fund)

SERVICES TO BE RENDERED BY THE SUB. ~~ADVISER~~ADVISER TO THE TRUST ~~(a) Subject~~ A. As sub-adviser to ~~the supervision of the Adviser and the Board~~each Fund, the Sub-Adviser ~~shall manage~~ will coordinate the investment ~~operations~~ and reinvestment of the assets of the Fund allocated to it hereunder and determine the composition of ~~the~~ such assets ~~assigned to the Sub-Adviser by the Adviser ("portfolio")~~ of ~~each Fund, including the purchase, retention and disposition of the securities and other instruments held by~~ the Fund, in accordance with ~~such~~ the terms of this Agreement, the Fund~~'s investment objective~~ ’s Prospectuses and ~~policies as stated in the then-current prospectus ("PROSPECTUS") and Statement~~ Statements of Additional ~~Information ("SAI") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT")~~Information, as ~~such Prospectus~~ currently in effect and ~~SAI are~~ as amended or supplemented from time to time~~. As part~~ , and subject to the direction, supervision and control of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Investment Adviser and the Sub-Adviser of all material facts concerning the investment and reinvestment of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the Board, and the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii) in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the following: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws Trustees of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund(s) (the "APPLICABLE LAWS"); (v) the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time; (vi) the Trust's policies and procedures adopted from time to time by the Board; and (vii) the written instructions of the Adviser. Prior to the commencement of the Sub-Adviser's ’s services hereunder, the Investment Adviser shall provide the Sub-Adviser with current copies of the ~~Trust Declaration, By-Laws, Prospectus~~ Fund’s Prospectuses and ~~SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief~~Statements of Additional Information (“SAI”). The ~~Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The~~ Investment Adviser undertakes to provide the Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to ~~any such above-mentioned document or information. (c) In furnishing services hereunder~~the Fund’s Prospectuses and Statements of Additional Information, and the Sub-Adviser will not ~~consult with any other investment adviser~~ need to (i) the Fund, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit the Sub-Adviser from consulting with any of its affiliated persons concerning transactions in securities or other assets. This also shall not be deemed to prohibit the Sub-Adviser from consulting with any of the other covered advisers concerning compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have comply until a copy has been provided to the Sub-Adviser. The Investment Adviser undertakes to highlight changes to the Fund’s investment objective, policies or ~~(ii) as described~~ restrictions in ~~the Trust's Prospectus and SAI. In placing~~ any supplements, revisions or updated prospectus or SAI to facilitate compliance with such policies. B. The Sub-Adviser is authorized to place orders for the purchase or and sale of ~~investments~~ securities for ~~each Fund, in the name of~~ the Fund with or ~~its nominees~~through such brokers, dealers or banks as the Sub-Adviser ~~shall seek~~ may select and, subject to achieve for the Fund "best execution", considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund. (e) Subject to the appropriate policies and procedures approved by the Board, the Sub-Adviser may, to the extent consistent with the safe harbor set forth in Section 28(e) of the Securities Exchange Act of 1934, as amended (~~"EXCHANGE ACT"~~the “Exchange Act”), ~~cause each Fund to~~ review by the Investment Adviser and the Trustees, and other applicable law, may pay ~~a broker or dealer that provides brokerage or research services to the Adviser, the Sub-Adviser or the Fund an amount of commission for effecting a portfolio transaction~~ commissions on transactions in excess of the amount of ~~commission~~ commissions another broker or dealer would have ~~charged for effecting that transaction if the~~ charged. The Sub-Adviser ~~determines~~will seek best execution under the circumstances of the particular transaction taking into consideration the full range and quality of a broker’s services in placing brokerage including, ~~in good faith~~among other things, ~~that such amount of commission is reasonable in relationship to~~ the value of ~~such brokerage or~~ research ~~services~~ provided ~~viewed in terms of that particular transaction or~~ as well as execution capability, commission rate, financial responsibility and responsiveness to the Sub-Adviser~~'s overall responsibilities to the Fund or its other advisory clients~~. ~~To the extent consistent with Section 28(e) and the Board, the~~ The Sub-Adviser ~~shall not be deemed to have acted unlawfully~~ may aggregate sales and purchase orders of securities or to have breached any duty created by this Agreement or otherwise solely by reason of such action. Subject to seeking best execution, the Board or the Adviser may authorize, but not require, the Sub-Adviser to effect transactions in portfolio securities through broker-dealers in a manner that will help generate resources to pay the cost of certain expenses that the Trust is required to pay or for which the Trust is required to arrange payment. (f) On occasions when the Sub-Adviser deems the purchase or sale of a security to be derivatives held in the ~~best interest of the Fund(s) as well as~~ Fund with similar orders being made simultaneously for other clients of the Sub-Adviser and its affiliates, the Sub-Adviser to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made portfolios managed by the Sub-Adviser if, in ~~the manner which~~ the Sub-Adviser’s reasonable judgment, such aggregation shall result in an overall economic benefit to the Fund in accordance with the Sub-Adviser’s policies and procedures. A copy of these policies and procedures has been provided to the Investment Adviser. C. The Investment Adviser ~~considers to be the most equitable~~ understands and ~~consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser~~ agrees that the Sub-Adviser performs investment management services for various clients and ~~its affiliates~~ may ~~give advice and~~ take action ~~in the performance of their duties~~ with respect to any of ~~their~~ its other clients ~~that~~ which may differ from ~~advice given,~~ action taken or from the timing or nature of ~~actions taken, with respect to~~ action taken by the Sub-Adviser for the Fund. The Adviser also acknowledges that the Sub-Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Fund, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the Sub-Adviser~~, its affiliates, officers or employees~~ ’s authority hereunder shall not be impaired because of the fact that it may ~~purchase or sell~~ effect transactions with respect to securities for its ~~or their~~ own account or for the ~~account~~ accounts of ~~any client, if in~~ others which it manages which are identical or similar to securities to which it may effect transactions for the ~~sole~~ Fund at the same or similar times. D. The Sub-Adviser will provide the Investment Adviser and ~~absolute discretion~~ the Trust with copies of the Sub-Adviser’s current policies and procedures adopted in accordance with Rule 206(4)-7 under the Advisers Act. Only to the extent that the Fund(s) are required by the 1940 Act to adopt or ratify the Sub-Adviser’s specific policy or procedure, the Investment Adviser ~~it is~~ will submit such policy or procedure to the Trust’s Board of Trustees for ~~any reason impractical~~ adoption or ~~undesirable~~ ratification by each of the Funds, with such modifications or additions thereto as the Board of Trustees or the Investment Adviser may recommend subject to ~~take such action or make such recommendation for~~ the ~~Fund~~concurrence of the Sub-Adviser. ~~(g)~~ E. The Sub-Adviser will maintain and preserve all accounts, books and records with respect to ~~each~~ the assets of the Fund allocated to it as are required of an investment adviser of a registered investment company pursuant to the ~~Investment Company~~ 1940 Act and the Advisers Act and the rules thereunder and shall file with the SEC all forms pursuant to Section 13 13D, 13F and 13G of the Exchange ~~Act~~Act solely on its own behalf (and those filings remain the property of the Sub-Adviser), with respect to its ~~duties as are set forth herein~~investments or holdings. The Fund or Adviser may have its own filing obligation with respect to Forms 13D, 13F, or 13G under the Exchange Act. The records relating to the services provided under this Agreement shall be the property of the Fund. The Fund, Sub-Adviser or Investment Adviser shall have the right to make copies of such records if required under applicable law. ~~(h)~~ F. The Sub-Adviser will, unless and until otherwise directed by the ~~Adviser or the Board and consistent with seeking the best interests of each Fund~~Investment Adviser, exercise ~~(or not exercise in its discretion)~~ all investment rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the Sub-Adviser shall vote all proxies ~~solicited by or with respect to the issuers of securities in which assets of the Fund may be invested~~ in accordance with the Sub-Adviser's ’s then-current proxy voting ~~guidelines, a copy of which has been provided~~ policies. Notwithstanding anything else to the contrary in this Agreement, Sub-Adviser will not compile or file claims or take any related actions on behalf of the Fund or Investment Adviser in any class action, bankruptcy or other legal proceeding related to securities currently or previously held in the Fund. However, Sub-Adviser shall provide factual information in its possession as the Fund or Investment Adviser may reasonably request. G. The Sub-Adviser will make available and provide information concerning the Sub-Adviser required by the Fund in the preparation of registration statements, reports and other documents required by federal and state securities laws, and such other information as the Fund or the Investment Adviser may reasonably request for use in the preparation of such documents, or of other materials necessary or helpful for the distribution of the Fund’s shares, subject to the express use of name approval rights of the Sub-Adviser pursuant to Section 14 of this Agreement. Subject to paragraph 5 of this Agreement, the Fund, Trust, Investment Adviser or principal underwriter shall be responsible for the compliance of promotional materials prepared on behalf of the Fund with applicable laws and rules, including those of any applicable self-regulatory organization. H. In the performance of its duties and obligations under this Agreement, the Sub-Adviser shall act in conformity with the Fund’s Prospectuses and Statements of Additional Information and with the instructions and directions of the Investment Adviser and of the Board of Trustees and will conform and comply with the applicable requirements of the 1940 Act, the Internal Revenue Code of 1986, as amended, and all other applicable federal and state laws and regulations, as each is amended from time to time. I. The Sub-Adviser at its expense will make available to the Trustees and the Investment Adviser at reasonable times its portfolio managers and other appropriate personnel, either in person or, at the mutual convenience of the Investment Adviser and the Sub-Adviser, by telephone, in order to review the investment policies, performance and other investment related information regarding a Fund and to consult with the Trustees of the Funds and Investment Adviser regarding each Fund’s investment affairs, including economic, statistical and investment matters related to the Sub-Adviser’s duties hereunder, and will provide periodic reports to the Investment Adviser or the Trustees relating to the investment strategies it employs. The Sub-Adviser and its personnel shall also cooperate fully with the commercially reasonable requests of counsel and auditors for, and the Chief Compliance Officers of, the Investment Adviser and the Trust. J. The Sub-Adviser will review draft reports to shareholders and other documents provided or available to it and provide comments on a timely basis. The Investment Adviser or the Fund will provide such documents to the Sub-Adviser in a reasonable timeframe prior to the due date. In addition, the Sub-Adviser and each officer and portfolio manager thereof designated by the Investment Adviser will provide on a timely basis such certifications or sub-certifications as the Investment Adviser or the Fund may reasonably request in order to support and facilitate certifications required to be provided by the Trust’s Principal Executive Officer and Principal Accounting Officer. K. The Sub-Adviser will comply with such requirements of the Commodity Exchange Act (“CEA”) and regulations of the Commodity Futures Trading Commission (“CFTC”) that apply to Sub-Adviser with regard to the Funds, including without limitation filing such notices with the National Futures Association (“NFA”) as may be required under the CEA or CFTC regulations.

Appears in 1 contract

Samples: Sub Advisory Agreement (Financial Investors Trust)

SERVICES TO BE RENDERED BY THE SUB. ~~ADVISER~~ADVISER TO THE TRUST ~~(a) Subject~~ A. As sub-adviser to ~~the supervision of the Adviser and the Board~~each Fund, ~~the~~ Sub-Adviser ~~shall manage~~ will coordinate the investment ~~operations~~ and reinvestment of the assets of the Fund and determine the composition of the assets ~~assigned to the Sub-Adviser by the Adviser ("portfolio")~~ of ~~each Fund, including the purchase, retention and disposition of the securities and other instruments held by~~ the Fund, in accordance with ~~such~~ the terms of this Agreement, the Fund~~'s investment objective~~ ’s Prospectus and ~~policies as stated in~~ the ~~then-current prospectus ("PROSPECTUS") and~~ Fund’s Statement of Additional Information (~~"SAI") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT")~~as they may be updated or amended, ~~as such Prospectus and SAI are amended or supplemented~~ from time to time~~. As part~~ ) and subject to the direction, supervision and control of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Investment Adviser and the Sub-Adviser of all material facts concerning the investment and reinvestment of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the Board, and the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii) in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the following: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws Trustees of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund(s) (the "APPLICABLE LAWS"); (v) the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time; (vi) the Trust's policies and procedures adopted from time to time by the Board; and (vii) the written instructions of the Adviser. Prior to the commencement of the Sub-Adviser's ’s services hereunder, the Investment Adviser shall provide ~~the~~ Sub-Adviser with current copies of the ~~Trust Declaration, By-Laws,~~ Fund’s Prospectus and ~~SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief~~SAI. ~~The Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The~~ Investment Adviser undertakes to provide ~~the~~ Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to ~~any such above-mentioned document or information. (c) In furnishing services hereunder,~~ the Fund’s Prospectus and SAI and Sub-Adviser will not ~~consult with any other investment adviser~~ need to (i) the Fund, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed comply until a copy has been provided to ~~prohibit the~~ Sub-Adviser ~~from consulting with any of its affiliated persons concerning transactions in securities or other assets. This also shall not be deemed to prohibit the~~ and agreed upon. B. Sub-Adviser from consulting with any of the other covered advisers concerning compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required may place orders for the execution of transactions with or through such brokers, dealers or banks as Sub-Adviser ~~to faithfully perform its duties under this Agreement; and (ii) administrative facilities~~may select and, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have been provided to the Sub-Adviser or (ii) as described in the Trust's Prospectus and SAI. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Sub-Adviser shall seek to achieve for the Fund "best execution", considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund. (e) Subject to the appropriate policies and procedures approved by the Board, the Sub-Adviser may, to the extent consistent with the safe harbor set forth in Section 28(e) of the Securities Exchange Act of ~~1934~~1934 (the “Exchange Act”) and other applicable law, may pay commissions on transactions in excess of the amount of commissions another broker or dealer would have charged. Sub-Adviser will seek best execution under the circumstances of the particular transaction taking into consideration the full range and quality of a broker's services in placing brokerage including, among other things, the value of research provided as ~~amended~~ well as execution capability, commission rate, financial responsibility and responsiveness to the Sub-Adviser. In no event shall Sub-Adviser be under any duty to obtain the lowest commission or best net price for the Fund on any particular transaction. Investment Adviser acknowledges and agrees that, if the Investment Adviser has only one (~~"EXCHANGE ACT")~~1) OTC counterparty, ~~cause each~~ the Sub-Adviser may not be able to obtain best execution on such trades and such trades are at risk of not having the Investment Adviser’s preferred exposure if such counterparty refuses to accept a trade. Accordingly, under such circumstances, the Investment Adviser acknowledges that all of its counterparty risk will be with a single entity. Sub-Adviser is not under any duty to execute transactions for the Fund before or after transactions for other like accounts managed by Sub-Adviser. Sub-Adviser may aggregate sales and purchase orders of securities or derivatives held in the Fund with similar orders being made simultaneously for other portfolios managed by Sub-Adviser if, in Sub-Adviser's reasonable judgment, such aggregation shall result in an overall economic benefit to ~~pay~~ the Fund. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that ~~provides brokerage or research services to~~ is an “affiliated person” (as defined under the ~~Adviser,~~ Investment Company Act) of the Sub-Adviser or the ~~Fund an amount of commission for effecting a portfolio transaction in excess~~ Investment Adviser without the prior approval of the ~~amount of commission another broker or dealer would have charged for effecting that transaction if~~ Investment Adviser. The Investment Adviser shall provide the Sub-Adviser ~~determines, in good faith,~~ with a list of brokers or dealers that ~~such amount~~ are affiliated persons of ~~commission is reasonable in relationship to~~ the ~~value of such brokerage or research services provided viewed in terms of that particular transaction or the Sub-~~Investment Adviser~~'s overall responsibilities to the Fund or its other advisory clients.~~ . C. To the extent consistent with ~~Section 28(e) and~~ the ~~Board~~investment strategy for the Fund, ~~the~~ Sub-Adviser ~~shall not be deemed~~ is hereby authorized to ~~have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason~~ purchase, hold and sell The Bank of ~~such action. Subject to seeking best execution~~New York Mellon Corporation stock, which is the ~~Board or the Adviser may authorize, but not require, the Sub-Adviser to effect transactions in portfolio securities through broker-dealers in a manner that will help generate resources to pay the cost~~ stock of certain expenses that the Trust is required to pay or for which the Trust is required to arrange payment. (f) On occasions when the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients an affiliate of the Sub-Adviser. D. Investment Adviser understands and agrees that Sub-Adviser performs investment management services for various clients and may take action with respect to any of its ~~affiliates~~other clients which may differ from action taken or from the timing or nature of action taken by Sub-Adviser for the Fund. Sub-Adviser’s authority hereunder shall not be impaired because of the fact that it may effect transactions with respect to securities for its own account or for the accounts of others which it manages which are identical or similar to securities to which it may effect transactions for the Fund at the same or similar times. E. Sub-Adviser will provide Investment Adviser with copies of Sub-Adviser’s current policies and procedures adopted in accordance with Rule 206(4)-7 under the Adviser Act. To the extent the Fund(s) are required by the Investment Company Act to adopt any such policy or procedure, Investment Adviser will submit such policy or procedure to the Trust’s Board of Trustees for adoption by each of the Funds, with such modifications or additions thereto as the Board of Trustees or Investment Adviser may recommend with the concurrence of Sub-Adviser. The Sub-Adviser’s Chief Compliance Officer shall provide to the Investment Adviser’s Chief Compliance Officer or his or her delegate the following: (i) on a quarterly basis, a report of any material changes to the Sub-~~Adviser~~ Adviser’s policies and procedures; (ii) on a quarterly basis, a report of any “material compliance matters,” as defined by Rule 38a-1 under the Investment Company Act, that have occurred in connection with the Sub-Adviser’s policies and procedures; (iii) a copy of the Cub-Adviser’s Chief Compliance Officer’s report with respect to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation annual review of the ~~securities so purchased or sold~~Sub-Adviser’s policies and procedures pursuant to Rule 206(4)-7 under the Advisers Act; and (iv) an annual certification regarding the Sub-Adviser’s compliance with Rule 206(4)-8 under the Advisers Act and Section 38a-1 of the Investment Company Act, as well as the ~~expenses incurred in the transaction, will be made by the Sub~~foregoing sub-Adviser in the manner which the Sub-Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser agrees that the Sub-Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Fund. The Adviser also acknowledges that the Sub-Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives paragraphs (~~and will hold the same or similar investments~~i) as the Fund, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the Sub-Adviser, its affiliates, officers or employees may purchase or sell for its or their own account or for the account of any client, if in the sole and absolute discretion of the Sub-Adviser it is for any reason impractical or undesirable to take such action or make such recommendation for the Fundthrough (iii). ~~(g) The~~ F. Sub-Adviser will maintain and preserve all accounts, books and records with respect to ~~each~~ the Fund as are required of an investment adviser of a registered investment company pursuant to the Investment Company Act and Advisers Act and the rules thereunder and shall file with the SEC all forms pursuant to Section 13 13F and 13G of the Exchange Act, with respect to its duties as are set forth herein. G. The Sub-Adviser shall cooperate promptly and fully with the Investment Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (hincluding any information requests) ~~The~~ relating to the Trust, the Fund or the Investment Adviser brought by any governmental or regulatory authorities. H. Sub-Adviser will, unless and until otherwise directed by ~~the Adviser or the Board and consistent with seeking the best interests of each Fund~~Investment Adviser, exercise ~~(or not exercise in its discretion)~~ all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting ~~proxies~~proxies in accordance with Sub-Adviser’s then-current proxy voting policies. I. The Sub-Adviser, ~~converting, tendering, exchanging or redeeming securities; acting as a claimant~~ in ~~class action litigation (including litigation~~ connection with its rights and duties with respect to ~~securities previously held);~~ the Fund and ~~exercising rights~~ the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the ~~context~~ conduct of an enterprise of a ~~bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the~~ like character and with like aims. J. The Sub-Adviser shall ~~vote~~ only provide the services herein set forth if (i) each Fund has obtained a minimum of $5 million in seed money, and (ii) all ~~proxies solicited by or with respect~~ material operational issues outstanding are resolved to ~~the issuers of securities in which assets of the Fund may be invested in accordance with~~ the Sub-~~Adviser's proxy voting guidelines, a copy of which has been provided~~ Advisor’s reasonable satisfaction prior to the ~~Adviser~~launch of each Fund.

Appears in 1 contract

Samples: Sub Advisory Agreement (IndexIQ ETF Trust)

SERVICES TO BE RENDERED BY THE SUB. ~~ADVISER~~ADVISER TO THE TRUST ~~(a) Subject~~ A. As sub-adviser to ~~the supervision of the Adviser and the Board~~each Fund, the Sub-Adviser ~~shall manage~~ will coordinate the investment ~~operations~~ and reinvestment of the assets of each Fund allocated to it hereunder and determine the composition of ~~the~~ assets ~~assigned to the Sub-Adviser by the Adviser ("portfolio")~~ of ~~each Fund, including the purchase, retention and disposition of the securities and other instruments held by the~~ such Fund, in accordance with ~~such~~ the terms of this Agreement, the Fund~~'s investment objective~~ ’s Prospectuses and ~~policies as stated in the then-current prospectus ("PROSPECTUS") and Statement~~ Statements of Additional ~~Information ("SAI") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT")~~Information, as ~~such Prospectus~~ currently in effect and ~~SAI are~~ as amended or supplemented from time to time~~. As part~~ , and subject to the direction, supervision and control of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Investment Adviser and the Sub-Adviser of all material facts concerning the investment and reinvestment of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the Board, and the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii) in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the following: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws Trustees of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund(s) (the "APPLICABLE LAWS"); (v) the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time; (vi) the Trust's policies and procedures adopted from time to time by the Board; and (vii) the written instructions of the Adviser. Prior to the commencement of the Sub-Adviser's ’s services hereunder, the Investment Adviser shall provide the Sub-Adviser with current copies of the ~~Trust Declaration, By-Laws, Prospectus~~ Fund’s Prospectuses and ~~SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief~~Statements of Additional Information (“SAI”). The ~~Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The~~ Investment Adviser undertakes to provide the Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to ~~any such above-mentioned document or information. (c) In furnishing services hereunder~~the Fund’s Prospectuses and Statements of Additional Information, and the Sub-Adviser will not ~~consult with any other investment adviser~~ need to (i) the Fund, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit the Sub-Adviser from consulting with any of its affiliated persons concerning transactions in securities or other assets. This also shall not be deemed to prohibit the Sub-Adviser from consulting with any of the other covered advisers concerning compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have comply until a copy has been provided to the Sub-Adviser. The Investment Adviser undertakes to highlight changes to the Fund's investment objective, policies or restrictions in any supplements, revisions or updated prospectus or SAI to facilitate compliance with such policies. B. The Sub-Adviser may either (i) recommend the allocation of Fund assets to the Investment Adviser for execution of trades, or (ii) ~~as described in~~ subject to the ~~Trust's Prospectus and SAI. In placing any~~ supervision of the Investment Adviser, place orders for the purchase or and sale of ~~investments~~ securities for ~~each Fund, in~~ a Fund itself. In the ~~name of the Fund or its nominees,~~ event the Sub-Adviser ~~shall seek to achieve~~ places orders for the purchase and sale of Fund ~~"best execution"~~securities itself, ~~considering all of the circumstances~~it is hereby authorized hereunder to place such orders with or through such brokers, ~~and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from~~ dealers or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund. (e) Subject to the appropriate policies and procedures approved by the Board, banks as the Sub-Adviser ~~may~~may select and, subject to ~~the extent consistent with the safe harbor set forth in~~ Section 28(e) of the Securities Exchange Act of 1934, as amended (~~"EXCHANGE ACT"~~the “Exchange Act”), ~~cause each Fund to~~ review by the Adviser and the Trustees, and other applicable law, may pay ~~a broker or dealer that provides brokerage or research services to the Adviser, the Sub-Adviser or the Fund an amount of commission for effecting a portfolio transaction~~ commissions on transactions in excess of the amount of ~~commission~~ commissions another broker or dealer would have ~~charged~~ charged. The Sub-Adviser will seek best execution under the circumstances of the particular transaction taking into consideration the full range and quality of a broker’s services in placing brokerage including, among other things, the value of research provided as well as execution capability, commission rate, financial responsibility and responsiveness to the Sub-Adviser. The Sub-Adviser may aggregate sales and purchase orders of securities or derivatives held in a Fund with similar orders being made simultaneously for ~~effecting that transaction if~~ other funds managed by the Sub-Adviser ~~determines~~if, in ~~good faith, that such amount of commission is reasonable in relationship to the value of such brokerage or research services provided viewed in terms of that particular transaction or~~ the Sub-Adviser's reasonable judgment, such aggregation shall result in an overall ~~responsibilities~~ economic benefit to ~~the~~ a Fund ~~or its other advisory clients. To the extent consistent~~ in accordance with ~~Section 28(e) and the Board,~~ the Sub-~~Adviser shall not be deemed~~ Adviser's policies and procedures. A copy of these policies and procedures has been provided to ~~have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason of such action. Subject to seeking best execution,~~ the Board or the Adviser may authorize, but not require, the Sub-Adviser to effect transactions in portfolio securities through broker-dealers in a manner that will help generate resources to pay the cost of certain expenses that the Trust is required to pay or for which the Trust is required to arrange paymentInvestment Adviser. ~~(f) On occasions when the Sub-~~C. The Investment Adviser ~~deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Sub-Adviser~~ understands and its affiliates, the Sub-Adviser to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner which the Sub-Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser agrees that the Sub-Adviser performs investment management services for various clients and ~~its affiliates~~ may ~~give advice and~~ take action ~~in the performance of their duties~~ with respect to any of ~~their~~ its other clients ~~that~~ which may differ from ~~advice given,~~ action taken or from the timing or nature of ~~actions taken, with respect to the Fund. The Adviser also acknowledges that~~ action taken by the Sub-Adviser ~~and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the~~ for a Fund~~, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships~~. ~~Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the~~ The Sub-Adviser~~, its affiliates, officers or employees~~ ’s authority hereunder shall not be impaired because of the fact that it may ~~purchase or sell~~ effect transactions with respect to securities for its ~~or their~~ own account or for the ~~account~~ accounts of ~~any client, if in~~ others which it manages which are identical or similar to securities to which it may effect transactions for a Fund at the ~~sole and absolute discretion~~ same or similar times. D. The Sub-Adviser will provide the Investment Adviser with copies of the Sub-Adviser’s current policies and procedures adopted in accordance with Rule 206(4)-7 under the Advisers Act. Only to the extent that the Fund(s) are required by the 1940 Act to adopt or ratify the Sub-Adviser’s specific policy or procedure, the Investment Adviser ~~it is~~ will submit such policy or procedure to the Trust’s Board of Trustees for ~~any reason impractical~~ adoption or ~~undesirable~~ ratification by each of the Funds, with such modifications or additions thereto as the Board of Trustees or the Investment Adviser may reasonably recommend subject to ~~take such action or make such recommendation for~~ the ~~Fund~~concurrence of the Sub-Adviser. ~~(g)~~ E. The Sub-Adviser will maintain and preserve all accounts, books and records with respect to ~~each~~ the assets of a Fund allocated to it as are required of an investment adviser of a registered investment company pursuant to the ~~Investment Company~~ 1940 Act and the Advisers Act and the rules thereunder and shall file with the SEC all forms pursuant to Section 13 13D, 13F and 13G of the Exchange ~~Act~~Act solely on its own behalf (and those filings remain the property of the Sub-Adviser), with respect to its ~~duties as are set forth herein~~investments or holdings. A Fund or Adviser may have its own filing obligation with respect to Forms 13D, 13F, or 13G under the Exchange Act. The records relating to the services provided under this Agreement shall be the property of the Fund. Each Fund, Sub-Adviser or Adviser shall have the right to copies of such records if required under applicable law. ~~(h)~~ F. The Sub-Adviser will, unless and until otherwise directed by the ~~Adviser or the Board and consistent with seeking the best interests of each Fund~~Investment Adviser, exercise ~~(or not exercise in its discretion)~~ all investment rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the Sub-Adviser shall vote all proxies ~~solicited by or with respect to the issuers of securities in which assets of the Fund may be invested~~ in accordance with the Sub-Adviser's ’s then-current proxy voting ~~guidelines~~policies. Notwithstanding anything else to the contrary in this Agreement, Sub-Adviser will not compile or file claims or take any related actions on behalf of a ~~copy~~ Fund or Investment Adviser in any class action, bankruptcy or other legal proceeding related to securities currently or previously held in a Fund. However, Sub-Adviser shall provide factual information in its possession as the Fund or Investment Adviser may reasonably request. G. The Sub-Adviser will make available and provide information concerning the Sub-Adviser required by each Fund in the preparation of ~~which has been~~ registration statements, reports and other documents required by federal and state securities laws, and such other information as each Fund or the Investment Adviser may reasonably request for use in the preparation of such documents, or of other materials necessary or helpful for the distribution of a Fund’s shares, subject to the express use of name approval rights of the Sub-Adviser pursuant to Section 14 of this Agreement. Subject to paragraph 5 of this Agreement, each Fund, the Trust, the Investment Adviser or principal underwriter shall be solely responsible for the compliance of promotional materials with applicable laws and rules, including those of any applicable self-regulatory organization. H. In the performance of its duties and obligations under this Agreement, the Sub-Adviser shall act in conformity with each Fund’s Prospectuses and Statements of Additional Information and with the instructions and directions of the Investment Adviser and of the Board of Trustees and will conform and comply with the applicable requirements of the 1940 Act, the Internal Revenue Code of 1986, as amended, and all other applicable federal and state laws and regulations, as each is amended from time to time. I. The Sub-Adviser at its expense will make available to the Trustees and the Investment Adviser at reasonable times its portfolio managers and other appropriate personnel, either in person or, at the mutual convenience of the Investment Adviser and the Sub-Adviser, by telephone, in order to review the investment policies, performance and other investment related information regarding a Fund and to consult with the Trustees of the Funds and Investment Adviser regarding each Fund’s investment affairs, including economic, statistical and investment matters related to the Sub-Adviser’s duties hereunder, and will provide periodic reports to the Investment Adviser or the Trustees relating to the investment strategies it employs. The Sub-Adviser and its personnel shall also cooperate fully with the commercially reasonable requests of counsel and auditors for, and the Chief Compliance Officers of, the Investment Adviser and the Trust. J. The Sub-Adviser will review draft reports to shareholders and other documents provided to it by the ~~Adviser~~Investment Adviser and provide comments on a timely basis. The Investment Adviser or a Fund will provide such documents to the Sub-Adviser in a reasonable timeframe prior to the due date. In addition, the Sub-Adviser and each officer and portfolio manager thereof designated by the Investment Adviser will provide on a timely basis such certifications or sub-certifications as the Investment Adviser or a Fund may reasonably request in order to support and facilitate certifications required to be provided by the Trust’s Principal Executive Officer, Principal Financial Officer, and Principal Accounting Officer; provided that if such a requested certification is not factually supportable, Sub-Adviser will not be in breach of this Agreement if it does not provide such certification.

Appears in 1 contract

Samples: Sub Advisory Agreement (Financial Investors Trust)

SERVICES TO BE RENDERED BY THE SUB. ~~ADVISER~~ADVISER TO THE TRUST ~~(a) Subject~~ A. As sub-adviser to ~~the supervision of the Adviser and the Board~~each Fund, the Sub-Adviser ~~shall manage~~ will coordinate the investment ~~operations~~ and reinvestment of the assets of the Fund allocated to it hereunder and determine the composition of ~~the~~ such assets ~~assigned to the Sub-Adviser by the Adviser ("portfolio")~~ of ~~each Fund, including the purchase, retention and disposition of the securities and other instruments held by~~ the Fund, in accordance with ~~such~~ the terms of this Agreement, the Fund~~'s investment objective~~ ’s Prospectuses and ~~policies as stated in the then-current prospectus ("PROSPECTUS") and Statement~~ Statements of Additional ~~Information ("SAI") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT")~~Information, as ~~such Prospectus~~ currently in effect and ~~SAI are~~ as amended or supplemented from time to time~~. As part~~ , and subject to the direction, supervision and control of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Investment Adviser and the Sub-Adviser of all material facts concerning the investment and reinvestment of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the Board, and the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii) in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the following: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws Trustees of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund(s) (the "APPLICABLE LAWS"); (v) the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time; (vi) the Trust's policies and procedures adopted from time to time by the Board; and (vii) the written instructions of the Adviser. Prior to the commencement of the Sub-Adviser's ’s services hereunder, the Investment Adviser shall provide the Sub-Adviser with current copies of the ~~Trust Declaration, By-Laws, Prospectus~~ Fund’s Prospectuses and ~~SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief~~Statements of Additional Information (“SAI”). The ~~Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The~~ Investment Adviser undertakes to provide the Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to ~~any such above-mentioned document or information. (c) In furnishing services hereunder~~the Fund’s Prospectuses and Statements of Additional Information, and the Sub-Adviser will not ~~consult with any other investment adviser~~ need to (i) the Fund, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit the Sub-Adviser from consulting with any of its affiliated persons concerning transactions in securities or other assets. This also shall not be deemed to prohibit the Sub-Adviser from consulting with any of the other covered advisers concerning compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have comply until a copy has been provided to the Sub-Adviser. The Investment Adviser undertakes to highlight changes to the Fund’s investment objective, policies or ~~(ii) as described~~ restrictions in ~~the Trust's Prospectus and SAI. In placing~~ any supplements, revisions or updated prospectus or SAI to facilitate compliance with such policies. B. The Sub-Adviser is authorized to place orders for the purchase or and sale of ~~investments~~ securities for ~~each Fund, in the name of~~ the Fund with or ~~its nominees~~through such brokers, dealers or banks as the Sub-Adviser ~~shall seek~~ may select and, subject to achieve for the Fund "best execution", considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund. (e) Subject to the appropriate policies and procedures approved by the Board, the Sub-Adviser may, to the extent consistent with the safe harbor set forth in Section 28(e) of the Securities Exchange Act of 1934, as amended (~~"EXCHANGE ACT"~~the “Exchange Act”), ~~cause each Fund to~~ review by the Investment Adviser and the Trustees, and other applicable law, may pay ~~a broker or dealer that provides brokerage or research services to the Adviser, the Sub-Adviser or the Fund an amount of commission for effecting a portfolio transaction~~ commissions on transactions in excess of the amount of ~~commission~~ commissions another broker or dealer would have ~~charged for effecting that transaction if the~~ charged. The Sub-Adviser ~~determines~~will seek best execution under the circumstances of the particular transaction taking into consideration the full range and quality of a broker’s services in placing brokerage including, ~~in good faith~~among other things, ~~that such amount of commission is reasonable in relationship to~~ the value of ~~such brokerage or~~ research ~~services~~ provided ~~viewed in terms of that particular transaction or~~ as well as execution capability, commission rate, financial responsibility and responsiveness to the Sub-Adviser~~'s overall responsibilities to the Fund or its other advisory clients~~. ~~To the extent consistent with Section 28(e) and the Board, the~~ The Sub-Adviser ~~shall not be deemed to have acted unlawfully~~ may aggregate sales and purchase orders of securities or to have breached any duty created by this Agreement or otherwise solely by reason of such action. Subject to seeking best execution, the Board or the Adviser may authorize, but not require, the Sub-Adviser to effect transactions in portfolio securities through broker-dealers in a manner that will help generate resources to pay the cost of certain expenses that the Trust is required to pay or for which the Trust is required to arrange payment. (f) On occasions when the Sub-Adviser deems the purchase or sale of a security to be derivatives held in the ~~best interest of the Fund(s) as well as~~ Fund with similar orders being made simultaneously for other clients of the Sub-Adviser and its affiliates, the Sub-Adviser to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made portfolios managed by the Sub-Adviser if, in ~~the manner which~~ the Sub-Adviser’s reasonable judgment, such aggregation shall result in an overall economic benefit to the Fund in accordance with the Sub-Adviser’s policies and procedures. A copy of these policies and procedures has been provided to the Investment Adviser. C. The Investment Adviser ~~considers to be the most equitable~~ understands and ~~consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser~~ agrees that the Sub-Adviser performs investment management services for various clients and ~~its affiliates~~ may ~~give advice and~~ take action ~~in the performance of their duties~~ with respect to any of ~~their~~ its other clients ~~that~~ which may differ from ~~advice given,~~ action taken or from the timing or nature of ~~actions taken, with respect to~~ action taken by the Sub-Adviser for the Fund. The Adviser also acknowledges that the Sub-Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Fund, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the Sub-Adviser~~, its affiliates, officers or employees~~ ’s authority hereunder shall not be impaired because of the fact that it may ~~purchase or sell~~ effect transactions with respect to securities for its ~~or their~~ own account or for the ~~account~~ accounts of ~~any client, if in~~ others which it manages which are identical or similar to securities to which it may effect transactions for the ~~sole~~ Fund at the same or similar times. D. The Sub-Adviser will provide the Investment Adviser and ~~absolute discretion~~ the Trust with copies of the Sub-Adviser’s current policies and procedures adopted in accordance with Rule 206(4)-7 under the Advisers Act. Only to the extent that the Fund(s) are required by the 1940 Act to adopt or ratify the Sub-Adviser’s specific policy or procedure, the Investment Adviser ~~it is~~ will submit such policy or procedure to the Trust’s Board of Trustees for ~~any reason impractical~~ adoption or ~~undesirable~~ ratification by each of the Funds, with such modifications or additions thereto as the Board of Trustees or the Investment Adviser may recommend subject to ~~take such action or make such recommendation for~~ the ~~Fund~~concurrence of the Sub-Adviser. ~~(g)~~ E. The Sub-Adviser will maintain and preserve all accounts, books and records with respect to ~~each~~ the assets of the Fund allocated to it as are required of an investment adviser of a registered investment company pursuant to the ~~Investment Company~~ 1940 Act and the Advisers Act and the rules thereunder and shall file with the SEC all forms pursuant to Section 13 13D, 13F and 13G of the Exchange ~~Act~~Act solely on its own behalf (and those filings remain the property of the Sub-Adviser), with respect to its ~~duties as are set forth herein~~investments or holdings. The Fund or Investment Adviser may have its own filing obligation with respect to Forms 13D, 13F, or 13G under the Exchange Act. The records relating to the services provided under this Agreement shall be the property of the Fund. The Sub-Adviser shall have the right to copies of such records upon reasonable request to the Fund. ~~(h)~~ F. The Sub-Adviser will, unless and until otherwise directed by the ~~Adviser or the Board and consistent with seeking the best interests of each Fund~~Investment Adviser, exercise ~~(or not exercise in its discretion)~~ all investment rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the Sub-Adviser shall vote all proxies ~~solicited by or with respect to the issuers of securities in which assets of the Fund may be invested~~ in accordance with the Sub-Adviser's ’s then-current proxy voting ~~guidelines, a copy of which has been provided~~ policies. Notwithstanding anything else to the contrary in this Agreement, Sub-Adviser will not compile or file claims or take any related actions on behalf of the Fund or Investment Adviser in any class action, bankruptcy or other legal proceeding related to securities currently or previously held in the Fund. However, Sub-Adviser shall provide factual information in its possession as the Fund or Investment Adviser may reasonably request. G. The Sub-Adviser will make available and provide information concerning the Sub-Adviser required by the Fund in the preparation of registration statements, reports and other documents required by federal and state securities laws, and such other information as the Fund or the Investment Adviser may reasonably request for use in the preparation of such documents, or of other materials necessary or helpful for the distribution of the Fund’s shares, subject to the express use of name approval rights of the Sub-Adviser pursuant to Section 14 of this Agreement. Subject to paragraph 5 of this Agreement, the Fund, Trust, Investment Adviser or principal underwriter shall be responsible for the compliance of promotional materials prepared on behalf of the Fund with applicable laws and rules, including those of any applicable self-regulatory organization. H. In the performance of its duties and obligations under this Agreement, the Sub-Adviser shall act in conformity with the Fund’s Prospectuses and Statements of Additional Information and with the instructions and directions of the Investment Adviser and of the Board of Trustees and will conform its actions to andcomply with the applicable requirements of the 1940 Act, the Internal Revenue Code of 1986, as amended, and all other applicable federal and state laws and regulations, as each is amended from time to time. I. The Sub-Adviser at its expense will make available to the Trustees and the Investment Adviser at reasonable times its portfolio managers and other appropriate personnel, either in person or, at the mutual convenience of the Investment Adviser and the Sub-Adviser, by telephone, in order to review the investment policies, performance and other investment related information regarding a Fund and to consult with the Trustees of the Funds and Investment Adviser regarding each Fund’s investment affairs, including economic, statistical and investment matters related to the Sub-Adviser’s duties hereunder, and will provide periodic reports to the Investment Adviser or the Trustees relating to the investment strategies it employs. The Sub-Adviser and its personnel shall also cooperate fully with the commercially reasonable requests of counsel and auditors for, and the Chief Compliance Officers of, the Investment Adviser and the Trust. J. The Sub-Adviser will review draft reports to shareholders and other documents provided or available to it and provide comments on a timely basis. The Investment Adviser or the Fund will provide such documents to the Sub-Adviser in a reasonable timeframe prior to the due date. In addition, the Sub-Adviser and each officer and portfolio manager thereof designated by the Investment Adviser will provide on a timely basis such certifications or sub-certifications as the Investment Adviser or the Fund may reasonably request in order to support and facilitate certifications required to be provided by the Trust’s Principal Executive Officer and Principal Accounting Officer. K. The Sub-Adviser will comply with such requirements of the Commodity Exchange Act (“CEA”) and regulations of the Commodity Futures Trading Commission (“CFTC”) that apply to Sub-Adviser with regard to the Funds, including without limitation filing such notices with the National Futures Association (“NFA”) as may be required under the CEA or CFTC regulations.

Appears in 1 contract

Samples: Sub Advisory Agreement (Financial Investors Trust)

SERVICES TO BE RENDERED BY THE SUB. ADVISER ~~(a) Subject~~ A. As sub-adviser to the ~~supervision of the Adviser and the Board~~Fund, ~~the~~ Sub-Adviser ~~shall manage~~ will coordinate and execute the investment ~~operations~~ and reinvestment of the assets of the Fund and determine the composition of the assets ~~assigned to~~ of the Fund. The Sub-Adviser by (and its directors, managers, officers and employees) shall perform all services under this Agreement on a discretionary basis, subject to the ~~Adviser ("portfolio") of each Fund~~general direction, ~~including the purchase, retention~~ supervision and ~~disposition~~ control of the securities and other instruments held by the Fund, in accordance with such Fund's investment objective and policies as stated in the then-current prospectus ("PROSPECTUS") and Statement of Additional Information ("SAI") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT"), as such Prospectus and SAI are amended or supplemented from time to time. As part of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Investment Adviser and the ~~Sub-Adviser~~ Fund’s Board of all material facts concerning the investment and reinvestment of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the BoardDirectors, and ~~the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii)~~ in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the followingstrict conformity with: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers ~~Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange~~ Act and ~~the rules under each,~~ any and all other ~~federal~~ applicable laws; (ii) the Fund’s Articles of Amendment and ~~state laws~~ Restatement and bylaws; (iii) any and all investment guidelines, instructions and directions provided by the Investment Adviser or ~~regulations applicable to~~ the ~~Trust~~ Fund; (iv) the Fund’s compliance policies, procedures and ~~the Fund(s) (the "APPLICABLE LAWS")~~guidelines; and (v) the ~~terms~~ investment objectives, policies and ~~conditions~~ restrictions set forth in the prospectus and statement of ~~exemptive~~ additional information contained in the Fund’s Registration Statement on Form N-2 under the Securities Act of 1933, as amended (the “Securities Act”) and ~~no-action relief granted to~~ the ~~Trust~~ Investment Company Act, as currently in effect and as supplemented and/or amended from time to ~~time;~~ time (~~vi)~~ respectively, the ~~Trust's policies~~ “Prospectus”, the “Statement of Additional Information”, and ~~procedures adopted~~ the “Registration Statement”), as each may be modified from time to time by (the ~~Board; and~~ documents described in (~~vii~~ii) through (v) above, the ~~written instructions of the Adviser~~“Fund Documents”). Prior to the commencement of the Sub-Adviser's ’s services hereunder, the Investment Adviser shall provide ~~the~~ Sub-Adviser with current copies of the ~~Trust Declaration, By-Laws, Prospectus and SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief~~Fund Documents. ~~The Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The~~ Investment Adviser undertakes to provide ~~the~~ Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to ~~any such above-mentioned document or information. (c) In furnishing services hereunder~~the Fund Documents, ~~the~~ and Sub-Adviser will not ~~consult with any other investment adviser~~ need to ~~(i)~~ comply until a copy has been provided to Sub-Adviser. Notwithstanding anything contained herein to the ~~Fund~~contrary, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit the should Sub-Adviser ~~from consulting with any of its affiliated persons concerning transactions in securities~~ choose to utilize reverse repurchase agreement obligations, derivative instruments or other ~~assets. This also shall not be deemed~~ instruments or trading practices that, according to ~~prohibit~~ the ~~Sub-~~Securities and Exchange Commission (“SEC”) or its staff, may cause senior securities concerns, the Investment Adviser ~~from consulting with any~~ acknowledges that the monitoring of the ~~other covered advisers concerning~~ use of such instruments or trading practices for compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have been provided to the Sub-Adviser or (ii) as described in the Trust's Prospectus and SAI. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Sub-Adviser shall seek to achieve for the Fund "best execution", considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, or interpretations or modifications by the ~~Advisers Act~~ SEC, SEC staff or other authority with appropriate jurisdiction, is the responsibility of the Sub-Adviser and not the ~~rules under each~~Investment Adviser. The Investment Adviser, and ~~all other federal and state laws or regulations applicable~~ not the Sub-Adviser, is responsible for making recommendations to the ~~Trust~~ Fund regarding, and monitoring (for purposes of Investment Company Act compliance, general market conditions and otherwise), the Fund’s use of bank borrowings (other than reverse repurchase agreements) or other similar term loans and the Fund’s issuance of preferred shares (or other “senior securities” in the form of debt or stock pursuant to Section 18 of the Investment Company Act), if any. The Sub-Adviser shall fully cooperate with the Fund’s and the Investment Adviser’s Chief Compliance Officers, the Fund’s legal counsel, any counsel to the Fund’s directors who are not “interested persons” of the Fund (as that term is defined under the Investment Company Act) and the Fund’s independent public accounting firm. ~~(e)~~ B. Subject to any direction from the ~~appropriate policies and procedures approved by~~ Investment Adviser or the ~~Board~~Fund, the Sub-Adviser ~~may~~is responsible for placing orders for the execution of portfolio transactions with or through or with such brokers, dealers, counterparties or banks as Sub-Adviser may select. In choosing broker-dealers, Sub-Adviser may take into account, in addition to commission costs and execution capabilities, the ~~extent consistent with~~ financial stability and reputation of the ~~safe harbor set forth~~ broker-dealers and the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of ~~1934~~1934 (the “1934 Act”)) provided by such broker-dealers. In addition, ~~as amended ("EXCHANGE ACT")~~Sub-Adviser may receive brokerage and research services in connection with certain riskless principal transactions, ~~cause each Fund~~ in accordance with applicable law. Sub-Adviser is authorized to pay ~~a broker or dealer that provides~~ broker-dealers who provide such brokerage or research services a commission (or equivalent) for executing a transaction which is in excess of the commissions (or equivalents) another broker-dealer would have charged for executing that transaction, if Sub-Adviser determines that such commission (or equivalent) is reasonable in relation to the value of the brokerage and research services provided to Sub-Adviser by the broker-dealer. Sub-Adviser will use its best efforts to obtain best execution under the circumstances for all portfolio transactions for the Fund and will use its best judgment to choose the broker-dealer most capable of providing the services necessary to obtain most favorable execution under the circumstances, taking into consideration the full range and quality of a broker-dealer’s services in placing transactions with broker-dealers including, among other things, the value of research provided (with respect to evaluating commissions and commission equivalents) as well as execution capability, commission rate (or commission equivalent), financial stability and responsibility, reputation, and responsiveness to the Sub-Adviser. In no event shall Sub-Adviser be under any duty to obtain the lowest commission for the Fund on any particular transaction. Sub-Adviser is not under any duty to execute transactions for the Fund before or after transactions for other like accounts managed by Sub-Adviser, except to the extent that doing so would violate applicable law. Sub-Adviser may aggregate sales and purchase orders of securities or derivatives held in the Fund with similar orders being made simultaneously for other portfolios managed by Sub-Adviser if, in Sub-Adviser’s reasonable judgment, such aggregation shall result in an overall economic benefit to the Fund, taking into consideration the advantageous selling or purchase price, brokerage commission, and other expenses. If an aggregate order is executed in parts at different prices, or two or more separate orders for two or more of Sub-Adviser’s clients are entered at approximately the same time on any day and are executed at different prices, Sub-Adviser has discretion, subject to its fiduciary duty to the Fund and its other advisory clients, to use an average price at which such securities were purchased or sold for the Fund and each of the clients for whom such orders were executed. Sub-Adviser may engage in brokerage and other securities transactions on behalf of the Fund with broker-dealer affiliates of Sub-Adviser in accordance with applicable Fund documents and applicable law. C. The Sub-Adviser will furnish to the Investment Adviser and the Fund, from time to time and as the Investment Adviser may request, reports and other data or information on portfolio transactions and reports and other data or information on the Fund’s assets, all in such detail and in such frequency as may be requested from time to time. The Sub-Adviser will also provide the Investment Adviser and the Fund, upon the Investment Adviser’s or the Fund’s request, with economic and investment analysis and reports or other investment services normally available to institutional or other clients of the Sub-Adviser. The Sub-Adviser will make available its officers and employees to meet with the Investment Adviser and the Fund's Board of Directors to review the investments of the Fund, on a quarterly, or upon due notice, at a time requested by the Investment Adviser or the Fund’s Board of Directors. D. Investment Adviser understands and agrees that Sub-Adviser performs investment management services for various clients and may take action with respect to any of its other clients which may differ from action taken or from the timing or nature of action taken by Sub-Adviser for the Fund. Sub-Adviser’s authority hereunder shall not be impaired because of the fact that it may effect transactions with respect to securities for its own account or for the accounts of others which it manages which are identical or similar to securities to which it may effect transactions for the Fund at the same or similar times. E. The Sub-Adviser also will promptly furnish and make available to the Fund such information concerning the Sub-Adviser and its services hereunder as the Investment Adviser or the Fund may request in the preparation of the Fund’s or the Investment Adviser’s regulatory filings, reports and other documents or in the fulfillment of its other compliance obligations. The Sub-Adviser will review draft filings, reports and other documents provided to it, and provide comments/corrections to the same on a timely basis. In addition, the Sub-Adviser will provide on a timely basis such certifications or sub-certifications as the Investment Adviser or the Fund ~~an amount~~ may reasonably request in order to support and facilitate certifications required to be provided by the Investment Adviser or the Fund (or their officers) from time to time. F. The Sub-Adviser shall promptly provide the Investment Adviser’s and the Fund’s Chief Compliance Officer (“CCO”), upon request, copies of ~~commission~~ its policies and procedures for ~~effecting a portfolio transaction in excess of the amount of commission another broker or dealer would have charged for effecting that transaction if~~ compliance by the Sub-Adviser ~~determines~~and the Fund with the Federal Securities Laws as defined in Rule 38a-1 under the Investment Company Act and promptly provide the CCO with copies of any material changes to those policies and procedures. The Sub-Adviser shall fully cooperate with the CCO as to facilitate the CCO’s performance of his/her responsibilities under Rule 38a-1 to review, ~~in good faith, that such amount of commission is reasonable in relationship~~ evaluate and report to the ~~value~~ Fund’s Board of ~~such brokerage or research services provided viewed in terms~~ Directors on the operation of ~~that particular transaction or~~ the Sub-Adviser~~'s overall responsibilities~~ ’s compliance policies and procedures and shall promptly report to the ~~Fund or its other advisory clients~~CCO any “Material Compliance Matter” as defined by Rule 38a-1(e)(2). ~~To the extent consistent with Section 28(e) and the Board~~At least annually, the Sub-Adviser shall not be deemed to have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason of such action. Subject to seeking best execution, the Board or the Adviser may authorize, but not require, the Sub-Adviser to effect transactions in portfolio securities through broker-dealers in provide a manner that will help generate resources to pay the cost of certain expenses that the Trust is required to pay or for which the Trust is required to arrange payment. (f) On occasions when the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Sub-Adviser and its affiliates, the Sub-Adviser certification to the ~~extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate~~ CCO to the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner which the Sub-Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser agrees effect that the Sub-Adviser has in place and ~~its affiliates may give advice~~ has implemented policies and ~~take action in~~ procedures that are reasonably designed to ensure compliance by the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Fund. The Adviser also acknowledges that Fund and the Sub-Adviser ~~and its affiliates are fiduciaries to other entities, some of which have~~ with the same or similar investment objectives (and will hold the same or similar investments) as the Fund, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the Sub-Adviser, its affiliates, officers or employees may purchase or sell for its or their own account or for the account of any client, if in the sole and absolute discretion of the Sub-Adviser it is for any reason impractical or undesirable to take such action or make such recommendation for the FundFederal Securities Laws. ~~(g)~~ G. The Sub-Adviser will maintain all ~~accounts,~~ books and records ~~with respect~~ relating to ~~each Fund as are~~ investment decisions, trade orders and similar undertakings of the Sub-Adviser under this Agreement required ~~of an investment adviser of a registered investment company~~ to be maintained pursuant to the Investment Company Act and ~~Advisers Act~~ the rules and regulations promulgated thereunder with respect to transactions made by it on behalf of the Fund including, without limitation, the books and records required by Rule 31a-l under the Investment Company Act, and shall timely furnish to the Adviser all information relating to the Sub-Adviser's services hereunder needed by the Adviser to keep such other books and records of the Fund required by Rule 31a-1 under the Investment Company Act. The Sub-Adviser will also preserve all such books and records for the periods prescribed in Rule 31a-2 under the Investment Company Act. The Sub-Adviser further agrees that all books and records maintained hereunder shall be made available to the Investment Adviser and the ~~rules thereunder~~ Fund at any time upon request, including facsimile, without delay, during any business day. Upon termination of this Agreement, the Sub-Adviser, at it expense, shall promptly upon demand, return to the Investment Adviser and the Fund any and all such records. The Sub-Adviser shall not be required to maintain books and records that are required to be maintained by the Fund’s administrator other than as required of it by applicable laws and regulations. Sub-Adviser shall file with the SEC all forms pursuant to ~~Section 13 of~~ the ~~Exchange Act,~~ 1934 Act with respect to its duties as are set forth herein. ~~(h)~~ H. The Sub-Adviser will, unless and until otherwise directed by the ~~Adviser or the Board and consistent with seeking the best interests of each Fund~~Investment Adviser, exercise ~~(or not exercise in its discretion)~~ all investor rights ~~of security holders~~ with respect to ~~securities held by each~~ the Fund’s assets, including, but not limited to: , voting proxies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the Sub-Adviser shall vote all proxies ~~solicited by or with respect to the issuers of securities in which assets of the Fund may be invested~~ in accordance with the Sub-Adviser's ’s then-current proxy voting ~~guidelines~~policies and procedures. The Sub-Adviser will report quarterly to the Investment Adviser and the Fund regarding such voting in a format reasonably requested by the Investment Adviser or the Fund. The Sub-Adviser represents that it has adopted and implemented written policies and procedures that are reasonably designed to ensure that the Sub-Adviser votes proxies in the best interest of the Fund in compliance with the requirements of Rule 206(4)-6 under the Advisers Act. The Sub-Adviser shall promptly provide notice and copies of any material changes to its policies procedures or other guidelines for voting proxies to the Fund and the Investment Adviser. Upon request, the Sub-Adviser shall provide the Investment Adviser and the Fund with a complete and current copy of ~~which has been provided~~ its policies, procedures and other guidelines or a description of the same for the purpose of disclosing such information in the Fund’s prospectus or as otherwise required by applicable law. The Sub-Adviser will promptly inform and forward to the ~~Adviser~~Investment Adviser any and all information received by Sub-Adviser relating to any class action or other litigation, any bankruptcy matters, or any other legal proceedings involving the Fund’s portfolio investments.

Appears in 1 contract

Samples: Investment Sub Advisory Agreement (Rivernorth Opportunities Fund, Inc.)

SERVICES TO BE RENDERED BY THE SUB. ~~ADVISER~~ADVISER TO THE FUND ~~(a) Subject~~ A. As an investment adviser to the ~~supervision of the Adviser and the Board~~Fund, the Sub-Adviser ~~shall~~ shall, subject to the supervision and oversight of the Advisor, manage the investment ~~operations~~ and ~~determine the composition~~ reinvestment of such portion of the assets ~~assigned~~ of the Fund as the Advisor may from time to time allocate to the Sub-Adviser by the Adviser ("portfolio") of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Fund, in accordance with such Fund's investment objective and policies as stated in the then-current prospectus ("PROSPECTUS") and Statement of Additional Information ("SAI") for ~~such Fund contained in the Trust's Registration Statement on Form N-1A~~ management (the ~~"REGISTRATION STATEMENT"~~“Sub-Advised Managed Assets”)~~, as such Prospectus and SAI are amended or supplemented from time to time.~~ . B. As part of the services it will provide hereunder, the Sub-Adviser ~~shall~~will: (i) ~~provide supervision~~ obtain and evaluate, to the extent deemed necessary and advisable by the Sub-Adviser in its discretion, pertinent economic, statistical, financial, and other information affecting the economy generally and individual companies or industries, the securities of ~~each Fund's investments, furnish~~ which are included in the Sub-Advised Managed Assets or are under consideration for inclusion in the Sub-Advised Managed Assets; (ii) formulate and implement a continuous investment program for the ~~Funds, determine from time to time what investments or securities will be purchased, retained or sold by~~ Sub-Advised Managed Assets as outlined in the ~~Funds, and what portion of the assets will be invested or held uninvested as cash~~Fund’s Registration Statement; (iiiii) ~~maintain books~~ take whatever steps are necessary to implement the investment program for the Sub-Advised Managed Assets by arranging for the purchase and ~~records~~ sale of securities and other investments, including, but not limited to, (a) issuing directives to the administrator of the Fund as necessary for the appropriate implementation of the investment program of the Sub-Advised Managed Assets, (b) selecting the brokers or dealers that will execute the purchases and sales of portfolio investments for the Fund (and when executing transactions, or placing orders with brokers for execution by those brokers, the Sub-Adviser shall, (except to the extent that it is following a specific instruction from the Fund or Adviser, as appropriate, in relation to the execution of an order) owe to the Fund and Client a duty to take all sufficient steps to obtain the best possible result for the Fund, taking into account the execution factors that are relevant to the execution or placing of that order under the terms of the Sub-Adviser’s Order Execution Policy, (c) subject to obtaining the initial and periodic approvals required under Section 15 of the Investment Company Act and the approval of the Advisor, retaining one or more additional sub-advisers at the Sub-Adviser’s own cost and expense for the purpose of furnishing one or more of the services described hereunder with respect to the ~~Trust's securities transactions~~ Fund, (d) negotiating and entering into ISDA master agreements to implement the investment program for the Sub-Advised Managed Assets, (e) assisting the Advisor in negotiating certain agreements with service providers or implementing certain systems necessary for the Sub-Adviser to provide the services described hereunder, and (f) making required arrangements to meet collateral requirements for the trading of any derivatives in the Sub-Advised Managed Assets, including issuing instructions to advance collateral to any clearing house/member or bi-lateral counterparty, in order to meet the rules of any applicable exchanges or markets; (iv) keep the ~~Board~~ Trustees of the Fund and the Adviser fully informed in writing on an ongoing basis as agreed by the ~~Adviser~~ Advisor and the Sub-Adviser of as to (1) all material facts concerning the investment and reinvestment of the ~~assets in the Funds,~~ Sub-Advised Managed Assets and (2) the Sub-Adviser and its key investment personnel and ~~operations providing services with respect to the Fund;~~ operations, make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the ~~Adviser~~ Advisor or the ~~Board,~~ Trustees of the Fund; and ~~the Sub-Adviser will~~ attend meetings with the ~~Adviser~~ Advisor and/or the Trustees, as reasonably requested, to discuss the foregoing; (~~iii~~v) in accordance with procedures and methods established by the ~~Board~~Trustees of the Fund, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in within the ~~Funds~~Sub-Advised Managed Assets as requested; (vi) provide any and all material composite performance information, ~~as necessary,~~ records and ~~use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of~~ supporting documentation about accounts the Sub-Adviser ~~for each security or other investment/asset in~~ manages, if appropriate, which are relevant to the Fund ~~for which market prices are not readily available~~and that have investment objectives, ~~it being understood that~~ policies, and strategies substantially similar to those employed by the Sub-Adviser ~~shall not~~ in managing the Sub-Advised Managed Assets that may be ~~responsible for determining~~ reasonably necessary, under applicable laws, to allow the ~~value of~~ Fund or its agent to present information concerning the Sub-Adviser’s prior performance in the Fund’s Registration Statement and any ~~such security~~permissible reports and materials prepared by the Fund; (ivvii) cooperate with and provide reasonable assistance to the Adviser, the ~~Trust's~~ Fund’s administrator, the ~~Trust's~~ Fund’s custodian and foreign custodians, the ~~Trust's~~ Fund’s transfer agent and pricing agents and all other agents and representatives of the ~~Trust that the Adviser and Sub-Adviser shall agree,~~ Fund and the ~~Adviser upon request from such person, shall~~ Adviser; keep all such persons fully informed as to such matters as they may reasonably deem necessary (and as notified to Sub-Adviser) to the performance of their obligations to the ~~Trust~~ Fund and the Adviser, ; provide prompt responses to reasonable requests made by such ~~persons~~ persons; and maintain any appropriate interfaces with each such person so as to promote the efficient exchange of information; and (vviii) file any required reports with the ~~Sub-Adviser shall initially determine~~ SEC pursuant to Sections 13(f) and ~~make such modifications to the identity and number of shares~~ 13(g) of the ~~Deposit~~ Securities Exchange Act of 1934, as amended, and the ~~Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments~~ rules and ~~corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus)~~regulations thereunder. ~~(b)~~ C. In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform ~~its responsibilities~~ in accordance ~~with~~ with, the following: (i) the ~~Trust's Agreement and Declaration~~ Fund’s declaration of ~~Trust~~trust, by-laws and/or other governing instruments, as the same may be hereafter modified and/or amended from time to time (~~"TRUST DECLARATION"~~“Governing Documents”); (ii) the ~~By-Laws of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS")~~currently effective Registration Statement and any amendments thereto; (iii) the ~~Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the~~ Investment Company ~~Act,~~ Act and the Advisers ~~Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange~~ Act and the rules under each, and all other federal and state laws or regulations applicable to the ~~Trust and the Fund(s) (the "APPLICABLE LAWS")~~Fund; (viv) the ~~terms~~ Fund’s compliance manual and ~~conditions of exemptive and no-action relief granted to the Trust as amended from time to time; (vi) the Trust's~~ other policies and procedures adopted from time to time by the ~~Board~~Board of Trustees of the Fund, to the extent they are applicable to the Sub-Adviser; and (~~vii~~v) the ~~written~~ instructions of the ~~Adviser~~Advisor. Prior to the commencement of the Sub-Adviser's ’s services hereunder, the ~~Adviser~~ Advisor shall provide the Sub-Adviser with current copies of ~~the Trust Declaration~~any Governing Documents, ~~By-Laws~~Registration Statement, ~~Prospectus and SAI~~ compliance manual and other relevant policies and procedures that are adopted by the Board ~~and by applicable exemptive and no action relief~~of Trustees of the Fund. The ~~Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The Adviser~~ Advisor undertakes to provide the Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to any such above-mentioned ~~document or information~~document. (c) In furnishing services hereunder, the Sub-Adviser will not consult with any other investment adviser to (i) the Fund, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit the Sub-Adviser from consulting with any of its affiliated persons concerning transactions in securities or other assets. This also shall not be deemed to prohibit the Sub-Adviser from consulting with any of the other covered advisers concerning compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) D. The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities (including office space, furnishings, and equipment) and personnel, including salaries, expenses and fees of any personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's ’s duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have been provided to the Sub-Adviser or (ii) as described in the Trust's Prospectus and SAI. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Sub-Adviser shall seek to achieve for the Fund "best execution", considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund. ~~(e) Subject to the appropriate policies and procedures approved by the Board, the~~ E. The Sub-Adviser may, to the extent ~~consistent with the safe harbor set forth in Section 28(e) of the Securities Exchange Act of 1934~~permitted by applicable laws and regulations, ~~as amended ("EXCHANGE ACT"), cause each Fund~~ aggregate orders for securities to ~~pay a broker or dealer that provides brokerage or research services to the Adviser,~~ be purchased for the Sub-~~Adviser~~ Advised Managed Assets with order of other funds managed or the Fund an amount of commission for effecting a portfolio transaction in excess of the amount of commission another broker or dealer would have charged for effecting that transaction if the Sub-Adviser determines, in good faith, that such amount of commission is reasonable in relationship to the value of such brokerage or research services provided viewed in terms of that particular transaction or advised by the Sub-Adviser~~'s overall responsibilities to the Fund or its other advisory clients~~. To the extent consistent with Section 28(e) and the Board, the Sub-Adviser shall not be deemed to have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason of such action. Subject to seeking best execution, the Board or the Adviser may authorize, but not require, the Sub-Adviser to effect transactions in portfolio securities through broker-dealers in a manner that will help generate resources to pay the cost of certain expenses that the Trust is required to pay or for which the Trust is required to arrange payment. (f) On occasions when the Sub-Adviser deems the purchase ~~or sale~~ of a security to be in the best interest of the ~~Fund(s)~~ Fund as well as other clients of the Sub-~~Adviser and its affiliates~~Adviser, the Sub-Adviser to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation allocation of the securities so ~~purchased or sold~~purchased, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner which the Sub-Adviser considers to be the most equitable and consistent with its fiduciary obligations to ~~each~~ the Fund and to its other clients over time. The ~~Adviser~~ Advisor agrees that the Sub-Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Fund. The ~~Adviser~~ Advisor also acknowledges that the Sub-Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Fund, and that the Sub-Adviser will ~~carryout~~ carry out its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to ~~sell or to~~ recommend for purchase ~~or sale~~ for the Fund any investment that the Sub-Adviser, its affiliates, officers or employees may purchase or sell for its or their own account or for the account of any client, if in the sole and absolute discretion of the Sub-Adviser it is for any reason impractical or undesirable to take such action or make such recommendation for the Fund. ~~(g)~~ F. The Sub-Adviser will maintain all accounts, books and records with respect to ~~each Fund~~ the Sub-Advised Managed Assets as are required of an investment adviser of a registered investment company pursuant to the Investment Company Act and Advisers Act and the rules ~~thereunder and shall file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein~~thereunder. ~~(h)~~ G. The Sub-Adviser ~~will, unless~~ is authorized to effect cross-transactions between a Fund and ~~until otherwise directed~~ other accounts managed by the Sub-Adviser. H. The Sub-Adviser or is authorized, on behalf of the ~~Board and consistent with seeking the best interests of each~~ Fund, ~~exercise (~~to negotiate, execute and enter into futures account agreements, clearing agreements, ISDA master agreements and related documents, and to open accounts and take other necessary or ~~not exercise in its discretion) all rights~~ appropriate actions related thereto. The Sub-Adviser is also authorized, on behalf of ~~security holders with respect to securities held by each~~ a Fund, ~~including~~to (i) enter into agreements and execute any documents (e.g., ~~but not limited to: voting proxies~~any derivatives documentation such as exchange-traded and over-the-counter, ~~converting~~as applicable) required to make investments pursuant to the Fund’s objectives, ~~tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held)~~investment policies and investment restrictions which shall include any market and/or industry standard documentation and the standard representations contained therein; and ~~exercising rights in~~ (ii) acknowledge the ~~context~~ receipt of ~~a bankruptcy or other reorganization~~brokers’ risk disclosure statements, electronic trading disclosure statements and similar disclosures. ~~Unless~~ In connection with the trading of derivatives, and the purposes of the foregoing documents, the Adviser ~~or the Board gives written instructions to the contrary,~~ hereby appoints the Sub-Adviser ~~shall vote all proxies solicited by or with respect~~ as process agent to ~~the issuers~~ receive service of ~~securities~~ process for any proceedings in ~~which assets~~ England and Wales on behalf of the ~~Fund may be invested in accordance with the Sub-Adviser's proxy voting guidelines, a copy of which has been provided to the Adviser~~Adviser or Fund.

Appears in 1 contract

Samples: Investment Sub Advisory Agreement (Destra International & Event-Driven Credit Fund)

SERVICES TO BE RENDERED BY THE SUB. ~~ADVISER~~ADVISER TO THE FUND ~~(a) Subject~~ A. As an investment adviser to the Fund, the Sub-Adviser will be involved with the aspects of the Fund’s investment program as detailed in this Section 3. All powers and authority of the Sub-Adviser under this Agreement shall be effected and exercised exclusively through the Fund. The Sub-Adviser shall act on behalf of the Fund only pursuant to the supervision of the Adviser and the ~~Board~~authority granted under this Agreement. The Sub-Adviser shall not permit or cause the Fund to enter into or otherwise directly engage in any borrowing, leverage or other credit arrangements without the express authorization of the Adviser. Further, the Sub-Adviser shall ~~manage the investment operations and determine the composition~~ not engage in any principal transactions or agency cross transactions with, or with respect to any of the assets ~~assigned to the Sub-Adviser by the Adviser ("portfolio") of each Fund~~of, ~~including the purchase, retention and disposition of the securities and other instruments held by~~ the Fund, in accordance with such Fund's investment objective and policies as stated in the then-current prospectus ("PROSPECTUS") and Statement of Additional Information ("SAI") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT"), as such Prospectus and SAI are amended or supplemented from time to time. . B. As part of the services it will provide hereunder, the Sub-Adviser ~~shall~~will: (i) ~~provide supervision~~ appoint a member of ~~each~~ the Adviser’s Investment Policy Committee, thereby assisting in providing for oversight of the Fund's ’s investments, ~~furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds,~~ making Fund manager selection and ~~what portion of the assets will be invested or held uninvested as cash;~~termination recommendations and approving significant and strategic asset allocation changes and (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Adviser and the Sub-Adviser of all material facts concerning the investment and reinvestment of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the Board, and the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii) in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the ~~Trust's~~ Fund’s administrator, the ~~Trust's custodian and foreign custodians~~Fund’s custodian, the ~~Trust's~~ Fund’s transfer agent and pricing agents and all other agents and representatives of the ~~Trust that the Adviser and Sub-Adviser shall agree,~~ Fund and the ~~Adviser upon request from such person, shall~~ Adviser; keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the ~~Trust and the Adviser,~~ Fund; provide prompt responses to reasonable requests made by such ~~persons~~ persons; and maintain ~~any~~ necessary and appropriate interfaces with each such person so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). ~~(b)~~ C. In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform ~~its responsibilities~~ in accordance ~~with~~ with, the following: (i) the ~~Trust's Agreement and Declaration of Trust~~Fund’s operating agreement and/or other governing instruments, as the same may be ~~hereafter modified and/or~~ amended from time to time (~~"TRUST DECLARATION"~~“Governing Documents”); (ii) the ~~By-Laws~~ registration statement of the ~~Trust,~~ Fund as ~~the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust~~ filed with the Securities and Exchange Commission ("“SEC~~") and delivered to the Sub-Adviser~~”), as the same may be ~~hereafter modified,~~ amended ~~and/or supplemented~~from time to time (the “Registration Statement”) as well as the Confidential Memorandum of any Feeder Fund; (iviii) the Investment Company ~~Act, the Advisers Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange~~ Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund(s) (the "APPLICABLE LAWS"); (v) the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time; (vi) the Trust's policies and procedures adopted from time to time by the Board; and (vii) the written instructions of the Adviser. Prior to the commencement of the Sub-Adviser's services hereunder, the Adviser shall provide the Sub-Adviser with current copies of the Trust Declaration, By-Laws, Prospectus and SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief. The Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The Adviser undertakes to provide the Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to any such above-mentioned document or information. (c) In furnishing services hereunder, the Sub-Adviser will not consult with any other investment adviser to (i) the Fund, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit the Sub-Adviser from consulting with any of its affiliated persons concerning transactions in securities or other assets. This also shall not be deemed to prohibit the Sub-Adviser from consulting with any of the other covered advisers concerning compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have been provided to the Sub-Adviser or (ii) as described in the Trust's Prospectus and SAI. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Sub-Adviser shall seek to achieve for the Fund "best execution", considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the ~~Trust and~~ Fund; (iv) the Fund~~. (e) Subject to the appropriate~~ ’s Compliance Manual and other policies and procedures ~~approved~~ adopted from time to time by the Board, ; and (v) the ~~Sub-Adviser may, to the extent consistent with the safe harbor set forth in Section 28(e)~~ written instructions of the ~~Securities Exchange Act of 1934, as amended ("EXCHANGE ACT"), cause each Fund to pay a broker or dealer that provides brokerage or research services to the Adviser, the Sub-~~Adviser ~~or the Fund an amount of commission for effecting a portfolio transaction in excess~~ not inconsistent with any of the amount of commission another broker or dealer would have charged for effecting that transaction if the Sub-Adviser determines, in good faith, that such amount of commission is reasonable in relationship to the value of such brokerage or research services provided viewed in terms of that particular transaction or the Sub-Adviser's overall responsibilities to the Fund or its other advisory clientsforegoing. ~~To the extent consistent with Section 28(e) and the Board, the~~ The Sub-Adviser shall ~~not be deemed to~~ have ~~acted unlawfully or to have breached any duty created by~~ no responsibility under this Agreement to conform its services to any new or ~~otherwise solely~~ modified requirements imposed by ~~reason~~ any such any such amendment, modification or supplement, and shall have no liability for its failure to do so, unless it has been furnished with a copy thereof or a written notice detailing such new or modified requirements a reasonable period of time before such ~~action. Subject~~ amendment, modification or supplement is to ~~seeking best execution, the Board or the Adviser may authorize, but not require, the~~ take effect. D. The Sub-Adviser agrees to ~~effect transactions in portfolio securities through broker-dealers in a manner that will help generate resources~~ render the services and to ~~pay~~ provide at its own expense, the ~~cost of certain expenses that~~ office space, furnishings and equipment and the ~~Trust is~~ personnel required by it to ~~pay or~~ perform the services on the terms and for ~~which~~ the ~~Trust is required to arrange payment~~compensation provided herein. ~~(f) On occasions when the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Sub-~~E. The Adviser and ~~its affiliates,~~ the Sub-Adviser to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner which the Sub-Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund ~~and to its other clients over time. The Adviser agrees~~ agree that the Sub-Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Fund. The Adviser also acknowledges that the Sub-Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Fund, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to ~~sell or to~~ recommend for purchase ~~or sale~~ for the Fund any investment that the Sub-Adviser, its affiliates, officers or employees may purchase or sell for its or their own account or for the account of any client, if in the sole and absolute discretion of the Sub-~~Adviser~~ Adviser, it is for any reason impractical or undesirable to take such action or make such recommendation for the Fund. ~~(g)~~ F. The Sub-Adviser will maintain all accounts, books and records with respect to ~~each~~ the Fund as are ~~required~~ required, in accordance with its role and duties under this Agreement, of an investment adviser of a registered investment company pursuant to the Investment Company Act and Advisers Act and the rules ~~thereunder and shall file with the SEC all forms pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein~~thereunder. (h) The Sub-Adviser will, unless and until otherwise directed by the Adviser or the Board and consistent with seeking the best interests of each Fund, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the Sub-Adviser shall vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Sub-Adviser's proxy voting guidelines, a copy of which has been provided to the Adviser.

Appears in 1 contract

Samples: Investment Sub Advisory Agreement (FEG Equity Access Fund LLC)

SERVICES TO BE RENDERED BY THE SUB. ADVISER ~~(a) Subject~~ A. As sub-adviser to the ~~supervision of the Adviser and the Board~~Fund, ~~the~~ Sub-Adviser ~~shall manage the investment operations and determine the composition of the assets assigned~~ will provide overall portfolio management services to the ~~Sub-Adviser by~~ Fund through the ~~Adviser ("portfolio")~~ coordination of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Fund, in accordance with such Fund's investment objective and policies as stated in the then-current prospectus ("PROSPECTUS") and Statement of Additional Information ("SAI") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT"), as such Prospectus and SAI are amended or supplemented from time to time. As part of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Adviser and the Sub-Adviser of all material facts concerning the investment and reinvestment of the assets in of the ~~Funds,~~ Fund and determination of the composition of the assets of the Fund. The Sub-Adviser (and its ~~key investment personnel~~ directors, managers, officers and ~~operations providing~~ employees) shall perform all services ~~with respect~~ under this Agreement on a discretionary basis, subject to the general direction, supervision and control of the Investment Adviser and the Fund~~; make regular and periodic special written reports~~ ’s Board of ~~such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the Board~~Directors, and ~~the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii)~~ in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the followingstrict conformity with: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers ~~Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange~~ Act and ~~the rules under each,~~ any and all other ~~federal~~ applicable laws; (ii) the Fund’s Articles of Amendment and ~~state laws~~ Restatement and bylaws; (iii) any and all investment guidelines, instructions and directions provided by the Investment Adviser or ~~regulations applicable to~~ the ~~Trust~~ Fund; (iv) the Fund’s compliance policies, procedures and ~~the Fund(s) (the "APPLICABLE LAWS")~~guidelines; and (v) the ~~terms~~ investment objectives, policies and ~~conditions~~ restrictions set forth in the prospectus and statement of ~~exemptive~~ additional information contained in the Fund’s Registration Statement on Form N-2 under the Securities Act of 1933, as amended (the “Securities Act”) and ~~no-action relief granted to~~ the ~~Trust~~ Investment Company Act, as currently in effect and as supplemented and/or amended from time to ~~time;~~ time (~~vi)~~ respectively, the ~~Trust's policies~~ “Prospectus”, the “Statement of Additional Information”, and ~~procedures adopted~~ the “Registration Statement”), as each may be modified from time to time by (the ~~Board; and~~ documents described in (~~vii~~ii) through (v) above, the ~~written instructions of the Adviser~~“Fund Documents”). Prior to the commencement of the Sub-Adviser's ’s services hereunder, the Investment Adviser shall provide ~~the~~ Sub-Adviser with current copies of the ~~Trust Declaration, By-Laws, Prospectus and SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief~~Fund Documents. ~~The Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The~~ Investment Adviser undertakes to provide ~~the~~ Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to the Fund Documents, and Sub-Adviser will not need to comply until a copy has been provided to Sub-Adviser. Notwithstanding anything contained herein to the contrary, should Sub-Adviser choose to utilize reverse repurchase agreement obligations, derivative instruments or other instruments or trading practices that, according to the Securities and Exchange Commission (“SEC”) or its staff, may cause senior securities concerns, the Investment Adviser acknowledges that the monitoring of the use of such instruments or trading practices for compliance with the Investment Company Act, or interpretations or modifications by the SEC, SEC staff or other authority with appropriate jurisdiction, is the responsibility of the Sub-Adviser and not the Investment Adviser. The Investment Adviser, and not the Sub-Adviser, is responsible for making recommendations to the Fund regarding, and monitoring (for purposes of Investment Company Act compliance, general market conditions and otherwise), the Fund’s use of bank borrowings (other than reverse repurchase agreements) or other similar term loans and the Fund’s issuance of preferred shares (or other “senior securities” in the form of debt or stock pursuant to Section 18 of the Investment Company Act), if any. The Sub-Adviser shall fully cooperate with the Fund’s and the Investment Adviser’s Chief Compliance Officers, the Fund’s legal counsel, any ~~such above-mentioned document or information~~counsel to the Fund’s directors who are not “interested persons” of the Fund (as that term is defined under the Investment Company Act) and the Fund’s independent public accounting firm. ~~(c)~~ B. All directions, orders or instructions for the purchase or sale of securities or instruments will be transmitted from the Sub-Adviser to the Investment Adviser for execution of such order using the brokers or other parties as selected by the Investment Adviser. The transmission of such orders from the Sub-Adviser to the Investment Adviser will be made using such security protocols and in the manner prescribed by the Investment Adviser. The Sub-Adviser retains all responsibility for such trades and for such recommendations or directions made. C. The Sub-Adviser will furnish to the Investment Adviser and the Fund, from time to time and as the Investment Adviser may request, reports and other data or information on portfolio transactions and reports and other data or information on the Fund’s assets, all in such detail and in such frequency as may be reasonably requested from time to time. The Sub-Adviser will also provide the Investment Adviser and the Fund, upon the Investment Adviser’s or the Fund’s request, with economic and investment analysis and reports or other investment services normally available to institutional or other clients of the Sub-Adviser. The Sub-Adviser will make available its officers and employees to meet with the Investment Adviser and the Fund's Board of Directors to review the investments of the Fund, on a quarterly, or upon due notice, at a time requested by the Investment Adviser or the Fund’s Board of Directors. D. Investment Adviser understands and agrees that Sub-Adviser performs investment management services for various clients and may take action with respect to any of its other clients which may differ from action taken or from the timing or nature of action taken by Sub-Adviser for the Fund. Sub-Adviser’s authority hereunder shall not be impaired because of the fact that it may effect transactions with respect to securities for its own account or for the accounts of others which it manages which are identical or similar to securities to which it may direct transactions for the Fund at the same or similar times. E. The Sub-Adviser also will promptly furnish and make available to the Fund such information concerning the Sub-Adviser and its services hereunder as the Investment Adviser or the Fund may request in the preparation of the Fund’s or the Investment Adviser’s regulatory filings, reports and other documents or in the fulfillment of its other compliance obligations. The Sub-Adviser will review draft filings, reports and other documents provided to it, and provide comments/corrections to the same on a timely basis. In ~~furnishing services hereunder~~addition, the Sub-Adviser will ~~not consult with any other investment adviser~~ provide on a timely basis such certifications or sub-certifications as the Investment Adviser or the Fund may reasonably request in order to support and facilitate certifications required to be provided by the Investment Adviser or the Fund (ior their officers) from time to time. F. The Sub-Adviser shall promptly provide the Investment Adviser’s and the Fund’s Chief Compliance Officer (“CCO”), ~~(ii) any other Fund~~ upon request, copies of ~~the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit~~ its policies and procedures for compliance by the Sub-Adviser ~~from consulting~~ and the Fund with the Federal Securities Laws as defined in Rule 38a-l under the Investment Company Act and promptly provide the CCO with copies of any material changes to those policies and procedures. The Sub-Adviser shall fully cooperate with the CCO as to facilitate the CCO’s performance of ~~its affiliated persons concerning transactions in securities or other assets~~his/her responsibilities under Rule 38a-l to review, evaluate and report to the Fund’s Board of Directors on the operation of the Sub-Adviser’s compliance policies and procedures and shall promptly report to the CCO any “Material Compliance Matter” as defined by Rule 38a-l(e)(2). ~~This also shall not be deemed to prohibit~~ At least annually, the Sub-Adviser ~~from consulting~~ shall provide a certification to the CCO to the effect that the Sub- Adviser has in place and has implemented policies and procedures that are reasonably designed to ensure compliance by the Fund and the Sub-Adviser with ~~any~~ the Federal Securities Laws. G. The Sub-Adviser will maintain all books and records relating to investment decisions, trade orders and similar undertakings of the ~~other covered advisers concerning compliance~~ Sub-Adviser under this Agreement required to be maintained pursuant to the Investment Company Act and the rules and regulations promulgated thereunder with ~~paragraphs (a)~~ respect to transactions made by it on behalf of the Fund including, without limitation, the books and ~~(b) of~~ records required by Rule ~~12d3-1~~ 31 a-1 under the Investment Company Act~~.) (d)~~ , and shall timely furnish to the Adviser all information relating to the Sub-Adviser's services hereunder needed by the Adviser to keep such other books and records of the Fund required by Rule 3 la-1 under the Investment Company Act. The Sub-Adviser will also preserve all such books and records for the periods prescribed in Rule 3 la-2 under the Investment Company Act. The Sub-Adviser further agrees that all books and records maintained hereunder shall be made available to the Investment Adviser and the Fund at any time upon request, including facsimile, without delay, during any business day. Upon termination of this Agreement, the Sub-Adviser, at its expense, ~~will furnish: (i) all necessary facilities~~ shall promptly upon demand, return to the Investment Adviser and ~~personnel, including salaries, expenses and fees of~~ the Fund any ~~personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping,~~ and all ~~equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement~~such records. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have been provided to the Sub-Adviser or (ii) as described in the Trust's Prospectus and SAI. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Sub-Adviser shall seek to achieve for the Fund "best execution", considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund. (e) Subject to the appropriate policies and procedures approved by the Board, the Sub-Adviser may, to the extent consistent with the safe harbor set forth in Section 28(e) of the Securities Exchange Act of 1934, as amended ("EXCHANGE ACT"), cause each Fund to pay a broker or dealer that provides brokerage or research services to the Adviser, the Sub-Adviser or the Fund an amount of commission for effecting a portfolio transaction in excess of the amount of commission another broker or dealer would have charged for effecting that transaction if the Sub-Adviser determines, in good faith, that such amount of commission is reasonable in relationship to the value of such brokerage or research services provided viewed in terms of that particular transaction or the Sub-Adviser's overall responsibilities to the Fund or its other advisory clients. To the extent consistent with Section 28(e) and the Board, the Sub-Adviser shall not be deemed to have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason of such action. Subject to seeking best execution, the Board or the Adviser may authorize, but not require, the Sub-Adviser to effect transactions in portfolio securities through broker-dealers in a manner that will help generate resources to pay the cost of certain expenses that the Trust is required to ~~pay or for which the Trust is~~ maintain books and records that are required to ~~arrange payment. (f) On occasions when~~ be maintained by the ~~Sub-Adviser deems the purchase or sale~~ Fund’s administrator other than as required of ~~a security to be in the best interest of the Fund(s) as well as other clients of the Sub-Adviser and its affiliates, the Sub-Adviser to the extent permitted~~ it by applicable laws and regulations~~, may, but shall be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution~~. ~~Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the~~ Sub-Adviser in the manner which the Sub-Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser agrees that the Sub-Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Fund. The Adviser also acknowledges that the Sub-Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Fund, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the Sub-Adviser, its affiliates, officers or employees may purchase or sell for its or their own account or for the account of any client, if in the sole and absolute discretion of the Sub-Adviser it is for any reason impractical or undesirable to take such action or make such recommendation for the Fund. (g) The Sub-Adviser will maintain all accounts, books and records with respect to each Fund as are required of an investment adviser of a registered investment company pursuant to the Investment Company Act and Advisers Act and the rules thereunder and shall file with the SEC all forms pursuant to ~~Section 13 of~~ the ~~Exchange Act,~~ 1934 Act with respect to its duties as are set forth herein. ~~(h)~~ H. The Investment Adviser will exercise all investor rights with respect to the Fund’s assets, including voting proxies in accordance with the Investment Adviser’s then-current proxy voting policies and procedures. Investment Adviser will provide the Sub-Adviser with an opportunity to review the proxy votes.prior to such vote being made, at which point the Sub-Adviser may direct the Investment Adviser to change the Fund’s vote on any particular proxy matter relating to the Fund’s portfolio securities, or otherwise provide advice or recommendations on such proxy votes as Investment Adviser might request from time to time. The Sub-Adviser ~~will~~represents that it has adopted and implemented written policies and procedures that are reasonably designed to ensure that, ~~unless and until otherwise directed by~~ to the extent Sub-Adviser or the Board and consistent with seeking the best interests of each Fund, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: is responsible for voting proxies, ~~converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights~~ it votes such proxies in the ~~context~~ best interest of ~~a bankruptcy~~ its clients in compliance with the requirements of Rule 206(4)-6 under the Advisers Act. The Sub-Adviser shall promptly provide notice and copies of any material changes to its policies procedures or other ~~reorganization. Unless the Adviser or the Board gives written instructions~~ guidelines for voting proxies to the ~~contrary~~Fund and the Investment Adviser. Upon request, the Sub-Adviser shall ~~vote all proxies solicited~~ provide the Investment Adviser and the Fund with a complete and current copy of its policies, procedures and other guidelines or a description of the same for the purpose of disclosing such information in the Fund’s prospectus or as otherwise required by ~~or with respect~~ applicable law. I. The Sub-Adviser will promptly inform and forward to the ~~issuers of securities in which assets of the Fund may be invested in accordance with the~~ Investment Adviser any and all information received by Sub-~~Adviser's proxy voting guidelines~~Adviser relating to any class action or other litigation, ~~a copy of which has been provided to~~ any bankruptcy matters, or any other legal proceedings involving the ~~Adviser~~Fund’s portfolio investments.

Appears in 1 contract

Samples: Investment Sub Advisory Agreement (Boulder Growth & Income Fund)

SERVICES TO BE RENDERED BY THE SUB. ~~ADVISER~~ADVISER TO THE TRUST ~~(a) Subject~~ A. As sub-adviser to ~~the supervision of the Adviser and the Board~~each Fund, the Sub-Adviser ~~shall manage~~ will coordinate the investment ~~operations~~ and reinvestment of the assets of the Fund and determine the composition of the assets ~~assigned to the Sub-Adviser by the Adviser ("portfolio")~~ of ~~each Fund, including the purchase, retention and disposition of the securities and other instruments held by~~ the Fund, in accordance with ~~such~~ the terms of this Agreement, the Fund~~'s investment objective and policies as stated in the then-current prospectus ("PROSPECTUS")~~ ’s Prospectus and Statement of Additional Information ("“SAI~~") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT"~~”), as ~~such Prospectus~~ currently in effect and ~~SAI are~~ as amended or supplemented from time to time~~. As part~~ , and subject to the direction, supervision and control of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Investment Adviser and the Sub-Adviser of all material facts concerning the investment and reinvestment of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the Board, and the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii) in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the following: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws Trustees of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund(s) (the "APPLICABLE LAWS"); (v) the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time; (vi) the Trust's policies and procedures adopted from time to time by the Board; and (vii) the written instructions of the Adviser. Prior to the commencement of the Sub-Adviser's ’s services hereunder, the Investment Adviser shall provide the Sub-Adviser with current copies of the ~~Trust Declaration, By-Laws,~~ Fund’s Prospectus and ~~SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief~~SAI. The ~~Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The~~ Investment Adviser undertakes to provide the Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to ~~any such above-mentioned document or information. (c) In furnishing services hereunder,~~ the Fund’s Prospectus and SAI and the Sub-Adviser will not ~~consult with any other investment adviser~~ need to (i) the Fund, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit the Sub-Adviser from consulting with any of its affiliated persons concerning transactions in securities or other assets. This also shall not be deemed to prohibit the Sub-Adviser from consulting with any of the other covered advisers concerning compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have comply until a copy has been provided to the Sub-Adviser ~~or (ii) as described in~~ and agreed upon. B. If directed by the ~~Trust's Prospectus and SAI. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees~~Investment Adviser, the Sub-Adviser ~~shall seek~~ is authorized to ~~achieve~~ place orders for the ~~Fund "best execution"~~purchase and sale of securities for the Funds with or through such brokers, ~~considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from~~ dealers or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund. (e) Subject to the appropriate policies and procedures approved by the Board, banks as the Sub-Adviser ~~may~~may select and, subject to ~~the extent consistent with the safe harbor set forth in~~ Section 28(e) of the Securities Exchange Act of 1934, as amended (~~"EXCHANGE ACT"~~the “Exchange Act”), ~~cause each Fund to~~ review by the Investment Adviser and the Trustees and other applicable law, may pay ~~a broker or dealer that provides brokerage or research services to the Adviser, the Sub-Adviser or the Fund an amount of commission for effecting a portfolio transaction~~ commissions on transactions in excess of the amount of ~~commission~~ commissions another broker or dealer would have ~~charged~~ charged. The Sub-Adviser will seek best execution under the circumstances of the particular transaction taking into consideration the full range and quality of a broker’s services in placing brokerage including, among other things, the value of research provided as well as execution capability, commission rate, financial responsibility and responsiveness to the Sub-Adviser. The Sub-Adviser may aggregate sales and purchase orders of securities or derivatives held in the Fund with similar orders being made simultaneously for ~~effecting that transaction if~~ other portfolios managed by the Sub-Adviser ~~determines~~if, in ~~good faith, that such amount of commission is reasonable in relationship to the value of such brokerage or research services provided viewed in terms of that particular transaction or~~ the Sub-Adviser's reasonable judgment, such aggregation shall result in an overall ~~responsibilities~~ economic benefit to the Fund ~~or its other advisory clients. To the extent consistent~~ in accordance with ~~Section 28(e) and the Board,~~ the Sub-~~Adviser shall not be deemed to have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason of such action~~Adviser’s policies and procedures. ~~Subject to seeking best execution, the Board or the Adviser may authorize, but not require, the~~ Sub-Adviser agrees to ~~effect transactions in portfolio securities through broker-dealers in~~ provide the Investment Adviser with a ~~manner that will help generate resources to pay the cost~~ copy of ~~certain expenses that the Trust is required to pay or for which the Trust is required to arrange payment~~these policies and procedures. ~~(f) On occasions when the Sub-~~C. The Investment Adviser ~~deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Sub-Adviser~~ understands and its affiliates, the Sub-Adviser to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner which the Sub-Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser agrees that the Sub-Adviser performs investment management services for various clients and ~~its affiliates~~ may ~~give advice and~~ take action ~~in the performance of their duties~~ with respect to any of ~~their~~ its other clients ~~that~~ which may differ from ~~advice given,~~ action taken or from the timing or nature of ~~actions taken, with respect to~~ action taken by the Sub-Adviser for the Fund. The Adviser also acknowledges that the Sub-Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Fund, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the Sub-Adviser~~, its affiliates, officers or employees~~ ’s authority hereunder shall not be impaired because of the fact that it may ~~purchase or sell~~ effect transactions with respect to securities for its ~~or their~~ own account or for the ~~account~~ accounts of ~~any client~~others which it manages which are identical or similar to securities to which it may, if in directed by the ~~sole and absolute discretion of the Sub-Adviser it is for any reason impractical or undesirable to take such action or make such recommendation~~ Investment Adviser, effect transactions for the ~~Fund~~Fund at the same or similar times. ~~(g)~~ D. The Sub-Adviser will provide Investment Adviser with copies of the Sub-Adviser’s current policies and procedures adopted in accordance with Rule 206(4)-7 under the Adviser Act. Only to the extent that the Fund(s) are required by the Investment Company Act to adopt any such policy or procedure, the Investment Adviser will submit such policy or procedure to the Trust’s Board of Trustees for adoption or ratification by each of the Funds, with such modifications or additions thereto as the Board of Trustees or the Investment Adviser may recommend subject to the concurrence of the Sub-Adviser. E. The Adviser and Sub-Adviser will maintain and preserve all accounts, books and records with respect to ~~each~~ the Fund as are required of an investment adviser of a registered investment company pursuant to the ~~Investment Company~~ 1940 Act and the Advisers Act and the rules thereunder and the Adviser and Sub-Adviser shall file with the SEC all forms pursuant to ~~Section 13~~ Sections 13D, 13F and 13G of the Exchange ~~Act~~Act as appropriate, with respect to their respective investments or holdings. The Fund may have its ~~duties as are set forth herein. (h)~~ own filing obligations with respect to Sections 13D, 13F or 13G under the Exchange Act. The records relating to the services provided under this Agreement shall be the property of the Fund. The Fund, the Sub-Adviser ~~will, unless and until otherwise~~ or the Investment Adviser shall have the right to copies of such records if required under applicable law. F. If directed by the Investment Adviser, the Sub-Adviser ~~or the Board and consistent with seeking the best interests of each Fund,~~ will exercise ~~(or not exercise in its discretion)~~ all investment rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the Sub-Adviser shall vote all proxies ~~solicited by or with respect to the issuers of securities in which assets of the Fund may be invested~~ in accordance with the Sub-Adviser's ’s then-current proxy voting ~~guidelines, a copy of which has been provided~~ policies. Notwithstanding anything else to the contrary in this Agreement, the Sub-Adviser will not compile or file claims or take any related actions on behalf of the Fund or Investment Adviser in any class action, bankruptcy or other legal proceeding related to the securities currently or previously held in the Fund, unless otherwise agreed to in writing by the Investment Adviser and the Fund. However, the Sub-Adviser shall provide factual information in its possession as the Portfolio or the Investment Adviser may reasonably request. G. The Sub-Adviser will make available and provide information concerning the Sub-Adviser required by the Fund in the preparation of registration statements, reports and other documents required by federal and state securities laws, and such other information as the Fund or the Investment Adviser may reasonably request for use in the preparation of such documents, or of other materials necessary or helpful for the distribution of the Fund’s shares, subject to the express use of name approval rights of the Sub-Adviser pursuant to Section 14 of this Agreement. Subject to paragraph 5 of this Agreement, the Fund, Trust, Adviser or principal underwriter shall be solely responsible for the compliance of promotional materials with applicable laws and rules, including those of any applicable self-regulatory organization, subject to Section 14 of this Agreement. H. In the performance of its duties and obligations under this Agreement, the Sub-Adviser shall act in conformity with the Fund’s Prospectuses and SAI and with the instructions and directions of the Investment Adviser and of the Trustees and will conform and comply with the applicable requirements of the 1940 Act, the Internal Revenue Code of 1986, as amended, and all other applicable federal and state laws and regulations, as each is amended from time to time. I. The Sub-Adviser at its own expense will make available to the Trustees and the Adviser at reasonable times its portfolio managers and other appropriate personnel, either in person or, at the mutual convenience of the Investment Adviser and the Sub-Adviser, by telephone, in order to review the investment policies, performance and other investment related information regarding a Fund and to consult with the Trustees of the Fund and Investment Adviser regarding each Portfolio’s investment affairs, including economic, statistical and investment matters related to the Sub-Adviser’s duties hereunder, and will provide periodic reports to the Investment Adviser or the Trustees relating to the investment strategies it employs. The Sub-Adviser and its personnel shall also cooperate fully with the commercially reasonable requests of counsel and auditors for, and the Chief Compliance Officers of, the Investment Adviser and the Trust. J. The Sub-Adviser will review draft reports to shareholders and other documents provided or available to it and provide comments on a timely basis. The Investment Adviser or the Fund will provide such documents to the Sub-Adviser in a reasonable timeframe prior to the due date. In addition, the Sub-Adviser and each officer and portfolio manager thereof designated by the Investment Adviser will provide on a timely basis such certifications or sub-certifications as the Investment Adviser or the Fund may reasonably request in order to support and facilitate certifications required to be provided by the Trust’s Principal Executive Officer and Principal Accounting Officer.

Appears in 1 contract

Samples: Sub Advisory Agreement (ALPS ETF Trust)

SERVICES TO BE RENDERED BY THE SUB. ADVISER ~~(a) Subject~~ A. As sub-adviser to the ~~supervision of the Adviser and the Board~~Fund, ~~the~~ Sub-Adviser ~~shall manage the investment operations and determine the composition of the assets assigned~~ will provide overall portfolio management services to the ~~Sub-Adviser by~~ Fund through the ~~Adviser ("portfolio")~~ coordination of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Fund, in accordance with such Fund's investment objective and policies as stated in the then-current prospectus ("PROSPECTUS") and Statement of Additional Information ("SAI") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT"), as such Prospectus and SAI are amended or supplemented from time to time. As part of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Adviser and the Sub-Adviser of all material facts concerning the investment and reinvestment of the assets in of the ~~Funds,~~ Fund and determination of the composition of the assets of the Fund. The Sub-Adviser (and its ~~key investment personnel~~ directors, managers, officers and ~~operations providing~~ employees) shall perform all services ~~with respect~~ under this Agreement on a discretionary basis, subject to the general direction, supervision and control of the Investment Adviser and the Fund~~; make regular and periodic special written reports~~ 's Board of ~~such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the Board~~Directors, and ~~the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii)~~ in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the followingstrict conformity with: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers ~~Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange~~ Act and ~~the rules under each,~~ any and all other ~~federal~~ applicable laws; (ii) the Fund's Articles of Amendment and ~~state laws~~ Restatement and bylaws; (iii) any and all investment guidelines, instructions and directions provided by the Investment Adviser or ~~regulations applicable to~~ the ~~Trust~~ Fund; (iv) the Fund's compliance policies, procedures and ~~the Fund(s) (the "APPLICABLE LAWS")~~guidelines; and (v) the ~~terms~~ investment objectives, policies and ~~conditions~~ restrictions set forth in the prospectus and statement of ~~exemptive~~ additional information contained in the Fund's Registration Statement on Form N-2 under the Securities Act of 1933, as amended (the "Securities Act") and ~~no-action relief granted to~~ the ~~Trust~~ Investment Company Act, as currently in effect and as supplemented and/or amended from time to ~~time;~~ time (~~vi)~~ respectively, the ~~Trust's policies~~ "Prospectus", the "Statement of Additional Information", and ~~procedures adopted~~ the "Registration Statement"), as each may be modified from time to time by (the ~~Board; and~~ documents described in (~~vii~~ii) through (v) above, the ~~written instructions of the Adviser~~"Fund Documents"). Prior to the commencement of the Sub-Adviser's services hereunder, the Investment Adviser shall provide ~~the~~ Sub-Adviser with current copies of the Trust Declaration, By-Laws, Prospectus and SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief. The Adviser shall also assist the Sub-Adviser with the interpretation an application Fund Documents (or make aware of the ~~Applicable Laws~~electronic availability and website location of such Fund Documents). ~~The~~ Investment Adviser undertakes to provide ~~the~~ Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to the Fund Documents, and Sub-Adviser will not need to comply until a copy or notice has been provided to Sub-Adviser. Fund Documents that are posted to the Fund’s website shall be deemed as notice to Sub-Adviser. Notwithstanding anything contained herein to the contrary, should Sub-Adviser choose to utilize reverse repurchase agreement obligations, derivative instruments or other instruments or trading practices that, according to the Securities and Exchange Commission ("SEC") or its staff, may cause senior securities concerns, the Investment Adviser acknowledges that the monitoring of the use of such instruments or trading practices for compliance with the Investment Company Act, or interpretations or modifications by the SEC, SEC staff or other authority with appropriate jurisdiction, including as may be required for the Fund under Rule 18f-4 of the Investment Company Act is the responsibility of the Sub-Adviser and not the Investment Adviser. The Investment Adviser, and not the Sub-Adviser, is responsible for making recommendations to the Fund regarding and monitoring (for purposes of Investment Company Act compliance, general market conditions and otherwise) the Fund's use of bank borrowings (other than reverse repurchase agreements) or other similar term loans and the Fund's issuance of preferred shares (or other "senior securities" in the form of debt or stock pursuant to Section 18 of the Investment Company Act), if any. The Sub-Adviser shall fully cooperate with the Fund's and the Investment Adviser's Chief Compliance Officers, the Fund's legal counsel, any ~~such above-mentioned document or information~~counsel to the Fund's directors who are not "interested persons" of the Fund (as that term is defined under the Investment Company Act) and the Fund's independent public accounting firm. ~~(c)~~ B. All directions, orders or instructions for the purchase or sale of securities or instruments will be transmitted from the Sub-Adviser to the Investment Adviser for execution of such order using the brokers or other parties as selected by the Investment Adviser. The transmission of such orders from the Sub-Adviser to the Investment Adviser will be made using such security protocols and in the manner prescribed by the Investment Adviser. The Sub-Adviser retains all responsibility for such trades and for such recommendations or directions made. C. The Sub-Adviser will furnish to the Investment Adviser and the Fund, from time to time and as the Investment Adviser may request, reports and other data or information on portfolio transactions and reports and other data or information on the Fund's assets, all in such detail and in such frequency as may be reasonably requested from time to time. The Sub-Adviser will also provide the Investment Adviser and the Fund, upon the Investment Adviser's or the Fund's request, with economic and investment analysis and reports or other investment services normally available to institutional or other clients of the Sub- Adviser. The Sub-Adviser will make available its officers and employees to meet with the Investment Adviser and the Fund's Board of Directors to review the investments of the Fund, on a quarterly, or upon due notice, at a time requested by the Investment Adviser or the Fund's Board of Directors. D. Investment Adviser understands and agrees that Sub-Adviser performs investment management services for various clients and may take action with respect to any of its other clients which may differ from action taken or from the timing or nature of action taken by Sub-Adviser for the Fund. Sub-Adviser's authority hereunder shall not be impaired because of the fact that it may effect transactions with respect to securities for its own account or for the accounts of others which it manages which are identical or similar to securities to which it may direct transactions for the Fund at the same or similar times. E. The Sub-Adviser also will promptly furnish and make available to the Fund such information concerning the Sub-Adviser and its services hereunder as the Investment Adviser or the Fund may request in the preparation of the Fund's or the Investment Adviser's regulatory filings, reports and other documents or in the fulfillment of its other compliance obligations. The Sub-Adviser will review draft filings, reports and other documents provided to it, and provide comments/corrections to the same on a timely basis. In ~~furnishing services hereunder~~addition, the Sub-Adviser will ~~not consult with any other investment adviser~~ provide on a timely basis such certifications or sub-certifications as the Investment Adviser or the Fund may reasonably request in order to support and facilitate certifications required to be provided by the Investment Adviser or the Fund (ior their officers) from time to time. F. The Sub-Adviser shall promptly provide the Investment Adviser's and the Fund's Chief Compliance Officer ("CCO"), ~~(ii) any other Fund~~ upon request, copies of ~~the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit~~ its policies and procedures for compliance by the Sub-Adviser ~~from consulting~~ and the Fund with the Federal Securities Laws as defined in Rule 38a-1 under the Investment Company Act and promptly provide the CCO with copies of any material changes to those policies and procedures. The Sub-Adviser shall fully cooperate with the CCO as to facilitate the CCO's performance of ~~its affiliated persons concerning transactions in securities or other assets~~his/her responsibilities under Rule 38a-1 to review, evaluate and report to the Fund's Board of Directors on the operation of the Sub-Adviser's compliance policies and procedures and shall promptly report to the CCO any "Material Compliance Matter" as defined by Rule 38a-1(e)(2). ~~This also shall not be deemed to prohibit~~ At least annually, the Sub-Adviser ~~from consulting~~ shall provide a certification to the CCO to the effect that the Sub-Adviser has in place and has implemented policies and procedures that are reasonably designed to ensure compliance by the Fund and the Sub-Adviser with ~~any~~ the Federal Securities Laws. G. The Sub-Adviser will maintain all books and records relating to investment decisions, trade orders and similar undertakings of the ~~other covered advisers concerning compliance~~ Sub-Adviser under this Agreement required to be maintained pursuant to the Investment Company Act and the rules and regulations promulgated thereunder with ~~paragraphs (a)~~ respect to transactions made by it on behalf of the Fund including, without limitation, the books and ~~(b) of~~ records required by Rule ~~12d3~~31a-1 l under the Investment Company Act~~.) (d)~~ , and shall timely furnish to the Adviser all information relating to the Sub-Adviser's services hereunder needed by the Adviser to keep such other books and records of the Fund required by Rule 31a-1 under the Investment Company Act. The Sub-Adviser will also preserve all such books and records for the periods prescribed in Rule 31a-2 under the Investment Company Act. The Sub-Adviser further agrees that all books and records maintained hereunder shall be made available to the Investment Adviser and the Fund at any time upon request, including facsimile, without delay, during any business day. Upon termination of this Agreement, the Sub-Adviser, at its expense, ~~will furnish: (i) all necessary facilities and personnel~~shall promptly upon demand, ~~including salaries, expenses and fees of~~ return to the Investment Adviser and/or the Fund any ~~personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping,~~ and all ~~equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement~~such records. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have been provided to the Sub-Adviser or (ii) as described in the Trust's Prospectus and SAI. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Sub-Adviser shall seek to achieve for the Fund "best execution", considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund. (e) Subject to the appropriate policies and procedures approved by the Board, the Sub-Adviser may, to the extent consistent with the safe harbor set forth in Section 28(e) of the Securities Exchange Act of 1934, as amended ("EXCHANGE ACT"), cause each Fund to pay a broker or dealer that provides brokerage or research services to the Adviser, the Sub-Adviser or the Fund an amount of commission for effecting a portfolio transaction in excess of the amount of commission another broker or dealer would have charged for effecting that transaction if the Sub-Adviser determines, in good faith, that such amount of commission is reasonable in relationship to the value of such brokerage or research services provided viewed in terms of that particular transaction or the Sub-Adviser's overall responsibilities to the Fund or its other advisory clients. To the extent consistent with Section 28(e) and the Board, the Sub-Adviser shall not be deemed to have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason of such action. Subject to seeking best execution, the Board or the Adviser may authorize, but not require, the Sub-Adviser to effect transactions in portfolio securities through broker-dealers in a manner that will help generate resources to pay the cost of certain expenses that the Trust is required to ~~pay or for which the Trust is~~ maintain books and records that are required to ~~arrange payment. (f) On occasions when~~ be maintained by the ~~Sub-Adviser deems the purchase or sale~~ Fund's administrator other than as required of ~~a security to be in the best interest of the Fund(s) as well as other clients of the Sub-Adviser and its affiliates, the Sub-Adviser to the extent permitted~~ it by applicable laws and regulations~~, may, but shall be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution~~. ~~Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the~~ Sub-Adviser in the manner which the Sub-Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser agrees that the Sub-Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Fund. The Adviser also acknowledges that the Sub-Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Fund, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the Sub-Adviser, its affiliates, officers or employees may purchase or sell for its or their own account or for the account of any client, if in the sole and absolute discretion of the Sub-Adviser it is for any reason impractical or undesirable to take such action or make such recommendation for the Fund. (g) The Sub-Adviser will maintain all accounts, books and records with respect to each Fund as are required of an investment adviser of a registered investment company pursuant to the Investment Company Act and Advisers Act and the rules thereunder and shall file with the SEC all forms pursuant to ~~Section 13 of~~ the ~~Exchange Act,~~ 1934 Act with respect to its duties as are set forth herein. ~~(h)~~ H. The Investment Adviser will exercise all investor rights with respect to the Fund's assets, including voting proxies in accordance with the Investment Adviser's then-current proxy voting policies and procedures. Investment Adviser will provide the Sub-Adviser with an opportunity to review the proxy votes prior to such vote being made, at which point the Sub-Adviser may direct the Investment Adviser to change the Fund's vote on any particular proxy matter relating to the Fund's portfolio securities, or otherwise provide advice or recommendations on such proxy votes as Investment Adviser might request from time to time. The Sub-Adviser ~~will~~represents that it has adopted and implemented written policies and procedures that are reasonably designed to ensure that, ~~unless and until otherwise directed by~~ to the extent Sub-Adviser or the Board and consistent with seeking the best interests of each Fund, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: is responsible for voting proxies, ~~converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights~~ it votes such proxies in the ~~context~~ best interest of ~~a bankruptcy~~ its clients in compliance with the requirements of Rule 206(4)-6 under the Advisers Act. The Sub-Adviser shall promptly provide notice and copies of any material changes to its policies procedures or other ~~reorganization. Unless the Adviser or the Board gives written instructions~~ guidelines for voting proxies to the ~~contrary~~Fund and the Investment Adviser. Upon request, the Sub-Adviser shall ~~vote all proxies solicited~~ provide the Investment Adviser and the Fund with a complete and current copy of its policies, procedures and other guidelines or a description of the same for the purpose of disclosing such information in the Fund's prospectus or as otherwise required by ~~or with respect~~ applicable law. I. The Sub-Adviser will promptly inform and forward to the ~~issuers of securities in which assets of the Fund may be invested in accordance with the~~ Investment Adviser any and all information received by Sub-~~Adviser~~Adviser relating to any class action or other litigation, any bankruptcy matters, or any other legal proceedings involving the Fund's ~~proxy voting guidelines, a copy of which has been provided to the Adviser~~portfolio investments.

Appears in 1 contract

Samples: Investment Sub Advisory Agreement (SRH Total Return Fund, Inc.)

SERVICES TO BE RENDERED BY THE SUB. ADVISER ~~(a) Subject~~ A. As sub-adviser to the ~~supervision of the Adviser and the Board~~Fund, ~~the~~ Sub-Adviser ~~shall manage~~ will coordinate and execute the investment ~~operations~~ and reinvestment of the assets of the Fund and determine the composition of the assets ~~assigned to~~ of the Fund. The Sub-Adviser by (and its directors, managers, officers and employees) shall perform all services under this Agreement on a discretionary basis, subject to the ~~Adviser ("portfolio") of each Fund~~general direction, ~~including the purchase, retention~~ supervision and ~~disposition~~ control of the securities and other instruments held by the Fund, in accordance with such Fund's investment objective and policies as stated in the then-current prospectus ("PROSPECTUS") and Statement of Additional Information ("SAI") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT"), as such Prospectus and SAI are amended or supplemented from time to time. As part of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Investment Adviser and the ~~Sub-Adviser~~ Fund’s Board of all material facts concerning the investment and reinvestment of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the BoardDirectors, and ~~the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii)~~ in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the followingstrict conformity with: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers ~~Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange~~ Act and ~~the rules under each,~~ any and all other ~~federal~~ applicable laws; (ii) the Fund’s Articles of Amendment and ~~state laws~~ Restatement and bylaws; (iii) any and all investment guidelines, instructions and directions provided by the Investment Adviser or ~~regulations applicable to~~ the ~~Trust~~ Fund; (iv) the Fund’s compliance policies, procedures and ~~the Fund(s) (the "APPLICABLE LAWS")~~guidelines; and (v) the ~~terms~~ investment objectives, policies and ~~conditions~~ restrictions set forth in the prospectus and statement of ~~exemptive~~ additional information contained in the Fund’s Registration Statement on Form N-2 under the Securities Act of 1933, as amended (the “Securities Act”) and ~~no-action relief granted to~~ the ~~Trust~~ Investment Company Act, as currently in effect and as supplemented and/or amended from time to ~~time;~~ time (~~vi)~~ respectively, the ~~Trust's policies~~ “Prospectus”, the “Statement of Additional Information”, and ~~procedures adopted~~ the “Registration Statement”), as each may be modified from time to time by (the ~~Board; and~~ documents described in (~~vii~~ii) through (v) above, the ~~written instructions of the Adviser~~“Fund Documents”). Prior to the commencement of the Sub-Adviser's ’s services hereunder, the Investment Adviser shall provide ~~the~~ Sub-Adviser with current copies of the ~~Trust Declaration, By-Laws, Prospectus and SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief~~Fund Documents. ~~The Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The~~ Investment Adviser undertakes to provide ~~the~~ Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to ~~any such above-mentioned document or information. (c) In furnishing services hereunder~~the Fund Documents, ~~the~~ and Sub-Adviser will not ~~consult with any other investment adviser~~ need to ~~(i)~~ comply until a copy has been provided to Sub-Adviser. Notwithstanding anything contained herein to the ~~Fund~~contrary, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit the should Sub-Adviser ~~from consulting with any of its affiliated persons concerning transactions in securities~~ choose to utilize reverse repurchase agreement obligations, derivative instruments or other ~~assets. This also shall not be deemed~~ instruments or trading practices that, according to ~~prohibit~~ the ~~Sub-~~Securities and Exchange Commission (“SEC”) or its staff, may cause senior securities concerns, the Investment Adviser ~~from consulting with any~~ acknowledges that the monitoring of the ~~other covered advisers concerning~~ use of such instruments or trading practices for compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have been provided to the Sub-Adviser or (ii) as described in the Trust's Prospectus and SAI. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Sub-Adviser shall seek to achieve for the Fund "best execution", considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, or interpretations or modifications by the ~~Advisers Act~~ SEC, SEC staff or other authority with appropriate jurisdiction, is the responsibility of the Sub-Adviser and not the ~~rules under each~~Investment Adviser. The Investment Adviser, and ~~all other federal and state laws or regulations applicable~~ not the Sub-Adviser, is responsible for making recommendations to the ~~Trust~~ Fund regarding, and monitoring (for purposes of Investment Company Act compliance, general market conditions and otherwise), the Fund’s use of bank borrowings (other than reverse repurchase agreements) or other similar term loans and the Fund’s issuance of preferred shares (or other “senior securities” in the form of debt or stock pursuant to Section 18 of the Investment Company Act), if any. The Sub-Adviser shall fully cooperate with the Fund’s and the Investment Adviser’s Chief Compliance Officers, the Fund’s legal counsel, any counsel to the Fund’s directors who are not “interested persons” of the Fund (as that term is defined under the Investment Company Act) and the Fund’s independent public accounting firm. ~~(e)~~ B. Subject to any direction from the ~~appropriate policies and procedures approved by~~ Investment Adviser or the ~~Board~~Fund, the Sub-Adviser ~~may~~is responsible for placing orders for the execution of portfolio transactions with or through or with such brokers, dealers, counterparties or banks as Sub-Adviser may select. In choosing broker-dealers, Sub-Adviser may take into account, in addition to commission costs and execution capabilities, the ~~extent consistent with~~ financial stability and reputation of the ~~safe harbor set forth~~ broker-dealers and the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of ~~1934~~1934 (the “1934 Act”)) provided by such broker-dealers. In addition, ~~as amended ("EXCHANGE ACT")~~Sub-Adviser may receive brokerage and research services in connection with certain riskless principal transactions, ~~cause each Fund~~ in accordance with applicable law. Sub-Adviser is authorized to pay ~~a broker or dealer that provides~~ broker-dealers who provide such brokerage or research services a commission (or equivalent) for executing a transaction which is in excess of the commissions (or equivalents) another broker-dealer would have charged for executing that transaction, if Sub-Adviser determines that such commission (or equivalent) is reasonable in relation to the value of the brokerage and research services provided to Sub-Adviser by the broker-dealer. Sub-Adviser will use its best efforts to obtain best execution under the circumstances for all portfolio transactions for the Fund and will use its best judgment to choose the broker-dealer most capable of providing the services necessary to obtain most favorable execution under the circumstances, taking into consideration the full range and quality of a broker-dealer’s services in placing transactions with broker-dealers including, among other things, the value of research provided (with respect to evaluating commissions and commission equivalents) as well as execution capability, commission rate (or commission equivalent), financial stability and responsibility, reputation, and responsiveness to the Sub-Adviser. In no event shall Sub-Adviser be under any duty to obtain the lowest commission for the Fund on any particular transaction. Sub-Adviser is not under any duty to execute transactions for the Fund before or after transactions for other like accounts managed by Sub-Adviser, except to the extent that doing so would violate applicable law. Sub-Adviser may aggregate sales and purchase orders of securities or derivatives held in the Fund with similar orders being made simultaneously for other portfolios managed by Sub-Adviser if, in Sub-Adviser’s reasonable judgment, such aggregation shall result in an overall economic benefit to the Fund, taking into consideration the advantageous selling or purchase price, brokerage commission, and other expenses. If an aggregate order is executed in parts at different prices, or two or more separate orders for two or more of Sub-Adviser’s clients are entered at approximately the same time on any day and are executed at different prices, Sub-Adviser has discretion, subject to its fiduciary duty to the Fund and its other advisory clients, to use an average price at which such securities were purchased or sold for the Fund and each of the clients for whom such orders were executed. Sub-Adviser may engage in brokerage and other securities transactions on behalf of the Fund with broker-dealer affiliates of Sub-Adviser in accordance with applicable Fund documents and applicable law. C. The Sub-Adviser will furnish to the Investment Adviser and the Fund, from time to time and as the Investment Adviser may request, reports and other data or information on portfolio transactions and reports and other data or information on the Fund’s assets, all in such detail and in such frequency as may be requested from time to time. The Sub-Adviser will also provide the Investment Adviser and the Fund, upon the Investment Adviser’s or the Fund’s request, with economic and investment analysis and reports or other investment services normally available to institutional or other clients of the Sub-Adviser. The Sub-Adviser will make available its officers and employees to meet with the Investment Adviser and the Fund's Board of Directors to review the investments of the Fund, on a quarterly, or upon due notice, at a time requested by the Investment Adviser or the Fund’s Board of Directors. D. Investment Adviser understands and agrees that Sub-Adviser performs investment management services for various clients and may take action with respect to any of its other clients which may differ from action taken or from the timing or nature of action taken by Sub-Adviser for the Fund. Sub-Adviser’s authority hereunder shall not be impaired because of the fact that it may effect transactions with respect to securities for its own account or for the accounts of others which it manages which are identical or similar to securities to which it may effect transactions for the Fund at the same or similar times. E. The Sub-Adviser also will promptly furnish and make available to the Fund such information concerning the Sub-Adviser and its services hereunder as the Investment Adviser or the Fund may request in the preparation of the Fund’s or the Investment Adviser’s regulatory filings, reports and other documents or in the fulfillment of its other compliance obligations. The Sub-Adviser will review draft filings, reports and other documents provided to it, and provide comments/corrections to the same on a timely basis. In addition, the Sub-Adviser will provide on a timely basis such certifications or sub-certifications as the Investment Adviser or the Fund ~~an amount~~ may reasonably request in order to support and facilitate certifications required to be provided by the Investment Adviser or the Fund (or their officers) from time to time. F. The Sub-Adviser shall promptly provide the Investment Adviser’s and the Fund’s Chief Compliance Officer (“CCO”), upon request, copies of ~~commission~~ its policies and procedures for ~~effecting a portfolio transaction in excess of the amount of commission another broker or dealer would have charged for effecting that transaction if~~ compliance by the Sub-Adviser ~~determines~~and the Fund with the Federal Securities Laws as defined in Rule 38a-1 under the Investment Company Act and promptly provide the CCO with copies of any material changes to those policies and procedures. The Sub-Adviser shall fully cooperate with the CCO as to facilitate the CCO’s performance of his/her responsibilities under Rule 38a-1 to review, ~~in good faith, that such amount of commission is reasonable in relationship~~ evaluate and report to the ~~value~~ Fund’s Board of ~~such brokerage or research services provided viewed in terms~~ Directors on the operation of ~~that particular transaction or~~ the Sub-Adviser~~'s overall responsibilities~~ ’s compliance policies and procedures and shall promptly report to the ~~Fund or its other advisory clients~~CCO any “Material Compliance Matter” as defined by Rule 38a-1(e)(2). ~~To the extent consistent with Section 28(e) and the Board~~At least annually, the Sub-Adviser shall not be deemed to have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason of such action. Subject to seeking best execution, the Board or the Adviser may authorize, but not require, the Sub-Adviser to effect transactions in portfolio securities through broker-dealers in provide a manner that will help generate resources to pay the cost of certain expenses that the Trust is required to pay or for which the Trust is required to arrange payment. (f) On occasions when the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Sub-Adviser and its affiliates, the Sub-Adviser certification to the ~~extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate~~ CCO to the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner which the Sub-Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser agrees effect that the Sub-Adviser has in place and ~~its affiliates may give advice~~ has implemented policies and ~~take action in~~ procedures that are reasonably designed to ensure compliance by the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Fund. The Adviser also acknowledges that Fund and the Sub-Adviser ~~and its affiliates are fiduciaries to other entities, some of which have~~ with the same or similar investment objectives (and will hold the same or similar investments) as the Fund, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the Sub-Adviser, its affiliates, officers or employees may purchase or sell for its or their own account or for the account of any client, if in the sole and absolute discretion of the Sub-Adviser it is for any reason impractical or undesirable to take such action or make such recommendation for the FundFederal Securities Laws. ~~(g)~~ G. The Sub-Adviser will maintain all ~~accounts,~~ books and records ~~with respect~~ relating to ~~each Fund as are~~ investment decisions, trade orders and similar undertakings of the Sub-Adviser under this Agreement required ~~of an investment adviser of a registered investment company~~ to be maintained pursuant to the Investment Company Act and ~~Advisers Act~~ the rules and regulations promulgated thereunder with respect to transactions made by it on behalf of the Fund including, without limitation, the books and records required by Rule 31a-l under the Investment Company Act, and shall timely furnish to the Adviser all information relating to the Sub-Adviser's services hereunder needed by the Adviser to keep such other books and records of the Fund required by Rule 31a-1 under the Investment Company Act. The Sub-Adviser will also preserve all such books and records for the periods prescribed in Rule 31a-2 under the Investment Company Act. The Sub-Adviser further agrees that all books and records maintained hereunder shall be made available to the Investment Adviser and the ~~rules thereunder~~ Fund at any time upon request, including facsimile, without delay, during any business day. Upon termination of this Agreement, the Sub-Adviser, at its expense, shall promptly upon demand, return to the Investment Adviser and the Fund any and all such records. The Sub-Adviser shall not be required to maintain books and records that are required to be maintained by the Fund’s administrator other than as required of it by applicable laws and regulations. Sub-Adviser shall file with the SEC all forms pursuant to ~~Section 13 of~~ the ~~Exchange Act,~~ 1934 Act with respect to its duties as are set forth herein. ~~(h)~~ H. The Sub-Adviser will, unless and until otherwise directed by the ~~Adviser or the Board and consistent with seeking the best interests of each Fund~~Investment Adviser, exercise ~~(or not exercise in its discretion)~~ all investor rights ~~of security holders~~ with respect to ~~securities held by each~~ the Fund’s assets, including, but not limited to: , voting proxies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the Sub-Adviser shall vote all proxies ~~solicited by or with respect to the issuers of securities in which assets of the Fund may be invested~~ in accordance with the Sub-Adviser's ’s then-current proxy voting ~~guidelines~~policies and procedures. The Sub-Adviser will report quarterly to the Investment Adviser and the Fund regarding such voting in a format reasonably requested by the Investment Adviser or the Fund. The Sub-Adviser represents that it has adopted and implemented written policies and procedures that are reasonably designed to ensure that the Sub-Adviser votes proxies in the best interest of the Fund in compliance with the requirements of Rule 206(4)-6 under the Advisers Act. The Sub-Adviser shall promptly provide notice and copies of any material changes to its policies procedures or other guidelines for voting proxies to the Fund and the Investment Adviser. Upon request, the Sub-Adviser shall provide the Investment Adviser and the Fund with a complete and current copy of ~~which has been provided~~ its policies, procedures and other guidelines or a description of the same for the purpose of disclosing such information in the Fund’s prospectus or as otherwise required by applicable law. The Sub-Adviser will promptly inform and forward to the ~~Adviser~~Investment Adviser any and all information received by Sub-Adviser relating to any class action or other litigation, any bankruptcy matters, or any other legal proceedings involving the Fund’s portfolio investments.

Appears in 1 contract

Samples: Investment Sub Advisory Agreement (Rivernorth Opportunities Fund, Inc.)

SERVICES TO BE RENDERED BY THE SUB. ~~ADVISER~~ADVISER TO THE TRUST ~~(a) Subject~~ A. As sub-adviser to ~~the supervision of the Adviser and the Board~~each Fund, the Sub-Adviser ~~shall manage~~ will coordinate the investment ~~operations~~ and reinvestment of the assets of the Funds and determine the composition of the assets ~~assigned to the Sub-Adviser by the Adviser ("portfolio")~~ of ~~each Fund, including the purchase, retention and disposition of the securities and other instruments held by~~ the Fund, in accordance with ~~such~~ the terms of this Agreement, each Fund~~'s investment objective and policies as stated in the then-current prospectus ("PROSPECTUS")~~ ’s Prospectus and Statement of Additional Information ("“SAI~~") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT"~~”), as ~~such Prospectus~~ currently in effect and ~~SAI are~~ as amended or supplemented from time to time~~. As part~~ , and subject to the direction, supervision and control of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Investment Adviser and the Sub-Adviser of all material facts concerning the investment and reinvestment of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the Board, and the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii) in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the following: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws Trustees of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund(s) (the "APPLICABLE LAWS"); (v) the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time; (vi) the Trust's policies and procedures adopted from time to time by the Board; and (vii) the written instructions of the Adviser. Prior to the commencement of the Sub-Adviser's ’s services hereunder, the Investment Adviser shall provide the Sub-Adviser with current copies of the ~~Trust Declaration, By-Laws,~~ Fund’s Prospectus and ~~SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief~~SAI. The ~~Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The~~ Investment Adviser undertakes to provide the Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to ~~any such above-mentioned document or information. (c) In furnishing services hereunder,~~ a Fund’s Prospectus and SAI and the Sub-Adviser will not ~~consult with any other investment adviser~~ need to (i) the Fund, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit the Sub-Adviser from consulting with any of its affiliated persons concerning transactions in securities or other assets. This also shall not be deemed to prohibit the Sub-Adviser from consulting with any of the other covered advisers concerning compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have comply until a copy has been provided to the Sub-Adviser ~~or (ii) as described in~~ and agreed upon. B. If directed by the ~~Trust's Prospectus and SAI. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees~~Investment Adviser, the Sub-Adviser ~~shall seek~~ is authorized to ~~achieve~~ place orders for the ~~Fund "best execution"~~purchase and sale of securities for the Funds with or through such brokers, ~~considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from~~ dealers or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund. (e) Subject to the appropriate policies and procedures approved by the Board, banks as the Sub-Adviser ~~may~~may select and, subject to ~~the extent consistent with the safe harbor set forth in~~ Section 28(e) of the Securities Exchange Act of 1934, as amended (~~"EXCHANGE ACT"~~the “Exchange Act”), ~~cause each Fund to~~ review by the Investment Adviser and the Trustees and other applicable law, may pay ~~a broker or dealer that provides brokerage or research services to the Adviser, the Sub-Adviser or the Fund an amount of commission for effecting a portfolio transaction~~ commissions on transactions in excess of the amount of ~~commission~~ commissions another broker or dealer would have ~~charged~~ charged. The Sub-Adviser will seek best execution under the circumstances of the particular transaction taking into consideration the full range and quality of a broker’s services in placing brokerage including, among other things, the value of research provided as well as execution capability, commission rate, financial responsibility and responsiveness to the Sub-Adviser. The Sub-Adviser may aggregate sales and purchase orders of securities or derivatives held in a Fund with similar orders being made simultaneously for ~~effecting that transaction if~~ other portfolios managed by the Sub-Adviser ~~determines~~if, in ~~good faith, that such amount of commission is reasonable in relationship to the value of such brokerage or research services provided viewed in terms of that particular transaction or~~ the Sub-Adviser's reasonable judgment, such aggregation shall result in an overall ~~responsibilities~~ economic benefit to the ~~Fund or its other advisory clients. To the extent consistent~~ Funds in accordance with ~~Section 28(e) and the Board,~~ the Sub-~~Adviser shall not be deemed to have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason of such action~~Adviser’s policies and procedures. ~~Subject to seeking best execution, the Board or the Adviser may authorize, but not require, the~~ Sub-Adviser agrees to ~~effect transactions in portfolio securities through broker-dealers in~~ provide the Investment Adviser with a ~~manner that will help generate resources to pay the cost~~ copy of ~~certain expenses that the Trust is required to pay or for which the Trust is required to arrange payment~~these policies and procedures. ~~(f) On occasions when the Sub-~~C. The Investment Adviser ~~deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Sub-Adviser~~ understands and its affiliates, the Sub-Adviser to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner which the Sub-Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser agrees that the Sub-Adviser performs investment management services for various clients and ~~its affiliates~~ may ~~give advice and~~ take action ~~in the performance of their duties~~ with respect to any of ~~their~~ its other clients ~~that~~ which may differ from ~~advice given,~~ action taken or from the timing or nature of ~~actions taken, with respect to the Fund. The Adviser also acknowledges that~~ action taken by the Sub-Adviser ~~and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the~~ for a Fund~~, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships~~. ~~Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the~~ The Sub-Adviser~~, its affiliates, officers or employees~~ ’s authority hereunder shall not be impaired because of the fact that it may ~~purchase or sell~~ effect transactions with respect to securities for its ~~or their~~ own account or for the ~~account~~ accounts of ~~any client~~others which it manages which are identical or similar to securities to which it may, if in directed by the ~~sole and absolute discretion of~~ Investment Adviser, effect transactions for a Fund at the ~~Sub-Adviser it is for any reason impractical~~ same or ~~undesirable to take such action or make such recommendation for the Fund~~similar times. ~~(g)~~ D. The Sub-Adviser will provide Investment Adviser with copies of the Sub-Adviser’s current policies and procedures adopted in accordance with Rule 206(4)-7 under the Adviser Act. Only to the extent that the Funds are required by the 1940 Act to adopt any such policy or procedure, the Investment Adviser will submit such policy or procedure to the Trust’s Board of Trustees for adoption or ratification by each of the Funds, with such modifications or additions thereto as the Board of Trustees or the Investment Adviser may recommend subject to the concurrence of the Sub-Adviser. E. The Adviser and Sub-Adviser will maintain and preserve all accounts, books and records with respect to ~~each Fund~~ the Funds as are required of an investment adviser of a registered investment company pursuant to the ~~Investment Company~~ 1940 Act and the Advisers Act and the rules thereunder and the Adviser shall file with the SEC all forms pursuant to ~~Section 13~~ Sections 13D, 13F and 13G of the Exchange ~~Act~~Act solely on its own behalf (and those filings remain the property of the Sub-Adviser), with respect to its ~~duties as are set forth herein. (h)~~ investments or holdings. The Funds or the Sub-Adviser ~~will~~may have its own filing obligations with respect to Sections 13D, ~~unless and until otherwise~~ 13F or 13G under the Exchange Act. The records relating to the services provided under this Agreement shall be the property of the Fund. The Funds, the Sub-Adviser or the Investment Adviser shall have the right to copies of such records if required under applicable law. F. If directed by the Investment Adviser, the Sub-Adviser ~~or the Board and consistent with seeking the best interests of each Fund,~~ will exercise ~~(or not exercise in its discretion)~~ all investment rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the Sub-Adviser shall vote all proxies ~~solicited by or with respect to the issuers of securities in which assets of the Fund may be invested~~ in accordance with the Sub-Adviser's ’s then-current proxy voting ~~guidelines, a copy of which has been provided~~ policies. Notwithstanding anything else to the contrary in this Agreement, the Sub-Adviser will not compile or file claims or take any related actions on behalf of the Funds or Investment Adviser in any class action, bankruptcy or other legal proceeding related to the securities currently or previously held in the Funds, unless otherwise agreed to in writing by the Investment Adviser and the Funds. However, the Sub-Adviser shall provide factual information in its possession as the Investment Adviser may reasonably request. G. The Sub-Adviser will make available and provide information concerning the Sub-Adviser required by the Funds in the preparation of registration statements, reports and other documents required by federal and state securities laws, and such other information as the Funds or the Investment Adviser may reasonably request for use in the preparation of such documents, or of other materials necessary or helpful for the distribution of a Fund’s shares, subject to the express use of name approval rights of the Sub-Adviser pursuant to Section 14 of this Agreement. Subject to paragraph 5 of this Agreement, the Funds, Trust, Adviser or principal underwriter shall be solely responsible for the compliance of promotional materials with applicable laws and rules, including those of any applicable self-regulatory organization, subject to Section 14 of this Agreement. H. In the performance of its duties and obligations under this Agreement, the Sub-Adviser shall act in conformity with each Fund’s Prospectuses and SAI and with the instructions and directions of the Investment Adviser and of the Trustees and will conform and comply with the applicable requirements of the 1940 Act, the Internal Revenue Code of 1986, as amended, and all other applicable federal and state laws and regulations, as each is amended from time to time. I. The Sub-Adviser at its own expense will make available to the Trustees and the Adviser at reasonable times its portfolio managers and other appropriate personnel, either in person or, at the mutual convenience of the Investment Adviser and the Sub-Adviser, by telephone, in order to review the investment policies, performance and other investment related information regarding a Fund and to consult with the Trustees of the Fund and Investment Adviser regarding each Fund’s investment affairs, including economic, statistical and investment matters related to the Sub-Adviser’s duties hereunder, and will provide periodic reports to the Investment Adviser or the Trustees relating to the investment strategies it employs. The Sub- Adviser and its personnel shall also cooperate fully with the commercially reasonable requests of counsel and auditors for, and the Chief Compliance Officers of, the Investment Adviser and the Trust. J. The Sub-Adviser will review draft reports to shareholders and other documents provided or available to it and provide comments on a timely basis. The Investment Adviser will provide such documents to the Sub-Adviser in a reasonable timeframe prior to the due date. In addition, the Sub-Adviser and each officer and portfolio manager thereof designated by the Investment Adviser will provide on a timely basis such certifications or sub-certifications as the Investment Adviser may reasonably request in order to support and facilitate certifications required to be provided by the Trust’s Principal Executive Officer and Principal Accounting Officer.

Appears in 1 contract

Samples: Sub Advisory Agreement (Sprott Funds Trust)

SERVICES TO BE RENDERED BY THE SUB. ~~ADVISER~~ADVISER TO THE TRUST ~~(a) Subject~~ A. As sub-adviser to ~~the supervision of the Adviser and the Board~~each Fund, ~~the~~ Sub-Adviser ~~shall manage~~ will coordinate the investment ~~operations~~ and reinvestment of the assets of the Fund and determine the composition of the assets ~~assigned to the Sub-Adviser by the Adviser ("portfolio")~~ of ~~each Fund, including the purchase, retention and disposition of the securities and other instruments held by~~ the Fund, in accordance with ~~such~~ the terms of this Agreement, the Fund~~'s investment objective~~ ’s Prospectus and ~~policies as stated in~~ the ~~then-current prospectus ("PROSPECTUS") and~~ Fund’s Statement of Additional Information (~~"SAI") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT")~~as they may be updated or amended, ~~as such Prospectus and SAI are amended or supplemented~~ from time to time~~. As part~~ ) and subject to the direction, supervision and control of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Investment Adviser and the Sub-Adviser of all material facts concerning the investment and reinvestment of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the Board, and the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii) in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the following: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws Trustees of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund(s) (the "APPLICABLE LAWS"); (v) the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time; (vi) the Trust's policies and procedures adopted from time to time by the Board; and (vii) the written instructions of the Adviser. Prior to the commencement of the Sub-Adviser's ’s services hereunder, the Investment Adviser shall provide ~~the~~ Sub-Adviser with current copies of the ~~Trust Declaration, By-Laws,~~ Fund’s Prospectus and ~~SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief~~SAI. ~~The Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The~~ Investment Adviser undertakes to provide ~~the~~ Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to ~~any such above-mentioned document or information. (c) In furnishing services hereunder,~~ the Fund’s Prospectus and SAI and Sub-Adviser will not ~~consult with any other investment adviser~~ need to (i) the Fund, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed comply until a copy has been provided to ~~prohibit the~~ Sub-Adviser ~~from consulting with any of its affiliated persons concerning transactions in securities or other assets. This also shall not be deemed to prohibit the~~ and agreed upon. B. Sub-Adviser from consulting with any of the other covered advisers concerning compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required may place orders for the execution of transactions with or through such brokers, dealers or banks as Sub-Adviser ~~to faithfully perform its duties under this Agreement; and (ii) administrative facilities~~may select and, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have been provided to the Sub-Adviser or (ii) as described in the Trust's Prospectus and SAI. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Sub-Adviser shall seek to achieve for the Fund "best execution", considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund. (e) Subject to the appropriate policies and procedures approved by the Board, the Sub-Adviser may, to the extent consistent with the safe harbor set forth in Section 28(e) of the Securities Exchange Act of ~~1934~~1934 (the “Exchange Act”) and other applicable law, may pay commissions on transactions in excess of the amount of commissions another broker or dealer would have charged. Sub-Adviser will seek best execution under the circumstances of the particular transaction taking into consideration the full range and quality of a broker’s services in placing brokerage including, among other things, the value of research provided as ~~amended~~ well as execution capability, commission rate, financial responsibility and responsiveness to the Sub-Adviser. In no event shall Sub-Adviser be under any duty to obtain the lowest commission or best net price for the Fund on any particular transaction. Investment Adviser acknowledges and agrees that if the Investment Adviser has only one (~~"EXCHANGE ACT")~~1) OTC counterparty, ~~cause each~~ the Sub-Adviser may not be able to obtain best execution on such trades and such trades are at risk of not having the Investment Adviser’s preferred exposure if such counterparty refuses to accept a trade. Accordingly, the Investment Adviser acknowledges that all of its counterparty risk will be with a single entity. Sub-Adviser is not under any duty to execute transactions for the Fund before or after transactions for other like accounts managed by Sub-Adviser. Sub-Adviser may aggregate sales and purchase orders of securities or derivatives held in the Fund with similar orders being made simultaneously for other portfolios managed by Sub-Adviser if, in Sub-Adviser’s reasonable judgment, such aggregation shall result in an overall economic benefit to ~~pay~~ the Fund. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that ~~provides brokerage or research services to~~ is an “affiliated person” (as defined under the ~~Adviser,~~ Investment Company Act) of the Sub-Adviser or the ~~Fund an amount of commission for effecting a portfolio transaction in excess~~ Investment Adviser without the prior approval of the ~~amount of commission another broker or dealer would have charged for effecting that transaction if~~ Investment Adviser. The Investment Adviser shall provide the Sub-Adviser ~~determines, in good faith,~~ with a list of brokers or dealers that ~~such amount~~ are affiliated persons of ~~commission is reasonable in relationship to~~ the ~~value of such brokerage or research services provided viewed in terms of that particular transaction or the Sub-~~Investment Adviser~~'s overall responsibilities to the Fund or its other advisory clients.~~ . C. To the extent consistent with ~~Section 28(e) and~~ the ~~Board~~investment strategy for the Fund, ~~the~~ Sub-Adviser ~~shall not be deemed~~ is hereby authorized to ~~have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason~~ purchase, hold and sell The Bank of ~~such action. Subject to seeking best execution~~New York Mellon Corporation stock, which is the ~~Board or the Adviser may authorize, but not require, the Sub-Adviser to effect transactions in portfolio securities through broker-dealers in a manner that will help generate resources to pay the cost~~ stock of certain expenses that the Trust is required to pay or for which the Trust is required to arrange payment. (f) On occasions when the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients an affiliate of the Sub-Adviser. D. Investment Adviser understands and agrees that Sub-Adviser performs investment management services for various clients and may take action with respect to any of its ~~affiliates~~other clients which may differ from action taken or from the timing or nature of action taken by Sub-Adviser for the Fund. Sub-Adviser’s authority hereunder shall not be impaired because of the fact that it may effect transactions with respect to securities for its own account or for the accounts of others which it manages which are identical or similar to securities to which it may effect transactions for the Fund at the same or similar times. E. Sub-Adviser will provide Investment Adviser with copies of Sub-Adviser’s current policies and procedures adopted in accordance with Rule 206(4)-7 under the Adviser Act. To the extent the Fund(s) are required by the Investment Company Act to adopt any such policy or procedure, Investment Adviser will submit such policy or procedure to the Trust’s Board of Trustees for adoption by each of the Funds, with such modifications or additions thereto as the Board of Trustees or Investment Adviser may recommend with the concurrence of Sub-Adviser. The Sub-Adviser’s Chief Compliance Officer shall provide to the Investment Adviser’s Chief Compliance Officer or his or her delegate the following: (i) a report of any material changes to the Sub-~~Adviser~~ Adviser’s policies and procedures on a quarterly basis; (ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the Investment Company Act, that have occurred in connection with the Sub-Adviser’s policies and procedures on a quarterly basis; (iii) a copy of the Sub-Adviser’s Chief Compliance Officer’s report with respect to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation annual review of the ~~securities so purchased or sold~~Sub-Adviser’s policies and procedures pursuant to Rule 206(4)-7 under the Advisers Act; and (iv) an annual certification regarding the Sub-Adviser’s compliance with Rule 206(4)-8 under the Advisers Act and Section 38a-1 of the Investment Company Act, as well as the ~~expenses incurred in the transaction, will be made by the Sub~~foregoing sub-Adviser in the manner which the Sub-Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser agrees that the Sub-Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Fund. The Adviser also acknowledges that the Sub-Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives paragraphs (~~and will hold the same or similar investments~~i) as the Fund, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the Sub-Adviser, its affiliates, officers or employees may purchase or sell for its or their own account or for the account of any client, if in the sole and absolute discretion of the Sub-Adviser it is for any reason impractical or undesirable to take such action or make such recommendation for the Fundthrough (iii). ~~(g) The~~ F. Sub-Adviser will maintain and preserve all accounts, books and records with respect to ~~each~~ the Fund as are required of an investment adviser of a registered investment company pursuant to the Investment Company Act and Advisers Act and the rules thereunder and shall file with the SEC all forms pursuant to Section 13 13F and 13G of the Exchange Act, with respect to its duties as are set forth herein. ~~(h)~~ G. The Sub-Adviser ~~will~~shall reasonably cooperate with the Investment Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, ~~unless and until otherwise directed by~~ the ~~Adviser~~ Fund or the ~~Board and consistent with seeking the best interests of each Fund, exercise (~~Investment Adviser brought by any governmental or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the Sub-Adviser shall vote all proxies solicited by or with respect to the issuers of securities in which assets of the Fund may be invested in accordance with the Sub-Adviser's proxy voting guidelines, a copy of which has been provided to the Adviserregulatory authorities.

Appears in 1 contract

Samples: Sub Advisory Agreement (IndexIQ Trust)

SERVICES TO BE RENDERED BY THE SUB. ~~ADVISER~~ADVISER TO THE TRUST ~~(a) Subject~~ A. As sub-adviser to ~~the supervision of the Adviser and the Board~~each Fund, ~~the~~ Sub-Adviser ~~shall manage~~ will coordinate the investment ~~operations~~ and reinvestment of the assets of the Fund and determine the composition of the assets ~~assigned to the Sub-Adviser by the Adviser ("portfolio")~~ of ~~each Fund, including the purchase, retention and disposition of the securities and other instruments held by~~ the Fund, in accordance with ~~such~~ the terms of this Agreement, the Fund~~'s investment objective and policies as stated in the then-current prospectus ("PROSPECTUS")~~ ’s Prospectus and Statement of Additional Information ~~("SAI") for such Fund contained in~~ and subject to the ~~Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT")~~direction, ~~as such Prospectus~~ supervision and ~~SAI are amended or supplemented from time to time. As part~~ control of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Investment Adviser and the ~~Sub-Adviser of all material facts concerning the investment and reinvestment~~ Trustees of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the Board, and the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii) in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the . The Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the ~~Deposit Securities~~ securities to be accepted pursuant to the Fund’s benchmark index in exchange for “Creation Units” for the Fund and the ~~Fund Securities required~~ securities that will be applicable that day to redemption requests received for ~~a Fund Deposit or Redemption for each~~ the Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust~~'s Custodian~~ ’s custodian with respect to such ~~designation) (capitalized terms have the meaning set forth in the Funds' prospectus~~designations)~~. (b)~~ . In ~~furnishing services hereunder~~its capacity as sub-adviser to each Fund, the Sub-Adviser ~~shall be subject to, and shall perform its responsibilities~~ is hereby authorized to execute all necessary documents in ~~accordance~~ connection with the ~~following: (i)~~ investment and reinvestment of each Fund’s assets, including, without limitation, confirmations relating to trades and certifications that a Fund is a “qualified institutional buyer” for purposes of Rule 144A under the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company 1933 Act, the Advisers Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund(s) (the "APPLICABLE LAWS"); (v) the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time; (vi) the Trust's policies and procedures adopted from time to time by the Board; and (vii) the written instructions of the Adviser. Prior to the commencement of the Sub-Adviser's ’s services hereunder, the Investment Adviser shall provide ~~the~~ Sub-Adviser with current copies of the ~~Trust Declaration, By-Laws,~~ Fund’s Prospectus and ~~SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief~~SAI. ~~The Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The~~ Investment Adviser undertakes to provide ~~the~~ Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to ~~any such above-mentioned document or information. (c) In furnishing services hereunder,~~ the Fund’s Prospectus and SAI and Sub-Adviser will not ~~consult with any other investment adviser~~ need to (i) the Fund, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed comply until a copy has been provided to ~~prohibit the~~ Sub-Adviser ~~from consulting with any of its affiliated persons concerning transactions in securities or other assets. This also shall not be deemed to prohibit the~~ and agreed upon. B. Sub-Adviser from consulting with any of the other covered advisers concerning compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required may place orders for the execution of transactions with or through such brokers, dealers or banks as Sub-Adviser ~~to faithfully perform its duties under this Agreement; and (ii) administrative facilities~~may select and, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have been provided to the Sub-Adviser or (ii) as described in the Trust's Prospectus and SAI. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Sub-Adviser shall seek to achieve for the Fund "best execution", considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund. (e) Subject to the appropriate policies and procedures approved by the Board, the Sub-Adviser may, to the extent consistent with the safe harbor set forth in Section 28(e) of the Securities Exchange Act of ~~1934~~1934 (the “Exchange Act”) and other applicable law, ~~as amended ("EXCHANGE ACT"), cause each Fund to~~ may pay ~~a broker or dealer that provides brokerage or research services to the Adviser, the Sub-Adviser or the Fund an amount of commission for effecting a portfolio transaction~~ commissions on transactions in excess of the amount of ~~commission~~ commissions another broker or dealer would have ~~charged for effecting that transaction if the~~ charged. Sub-Adviser ~~determines~~will seek best execution under the circumstances of the particular transaction taking into consideration the full range and quality of a broker’s services in placing brokerage including, ~~in good faith~~among other things, ~~that such amount of commission is reasonable in relationship to~~ the value of ~~such brokerage or~~ research ~~services~~ provided ~~viewed in terms of that particular transaction or~~ as well as execution capability, commission rate, financial responsibility and responsiveness to the Sub-Adviser's . In no event shall Sub-Adviser be under any duty to obtain the lowest commission or best net price for the Fund on any particular transaction. Sub-Adviser is not under any duty to execute transactions for the Fund before or after transactions for other like accounts managed by Sub-Adviser. Sub-Adviser may aggregate sales and purchase orders of securities or derivatives held in the Fund with similar orders being made simultaneously for other portfolios managed by Sub-Adviser if, in Sub-Adviser’s reasonable judgment, such aggregation shall result in an overall ~~responsibilities~~ economic benefit to the ~~Fund or its other advisory clients.~~ Fund. C. To the extent consistent with ~~Section 28(e) and~~ the ~~Board~~investment strategy for the Fund, ~~the~~ Sub-Adviser ~~shall not be deemed~~ is hereby authorized to ~~have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason~~ purchase, hold and sell The Bank of ~~such action. Subject to seeking best execution~~New York Mellon Corporation stock, which is the ~~Board or the Adviser may authorize, but not require, the Sub-Adviser to effect transactions in portfolio securities through broker-dealers in a manner that will help generate resources to pay the cost~~ stock of certain expenses that the Trust is required to pay or for which the Trust is required to arrange payment. (f) On occasions when the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients an affiliate of the Sub-Adviser. D. Investment Adviser understands and ~~its affiliates, the~~ agrees that Sub-Adviser ~~to the extent permitted by applicable laws~~ performs investment management services for various clients and regulations, may, but shall be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner which the Sub-Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser agrees that the Sub-Adviser and its affiliates may ~~give advice and~~ take action ~~in the performance of their duties~~ with respect to any of ~~their~~ its other clients ~~that~~ which may differ from ~~advice given,~~ action taken or from the timing or nature of ~~actions taken,~~ action taken by Sub-Adviser for the Fund. Sub-Adviser’s authority hereunder shall not be impaired because of the fact that it may effect transactions with respect to the Fund. The Adviser also acknowledges that the Sub-Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Fund, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the Sub-Adviser, its affiliates, officers or employees may purchase or sell securities for its ~~or their~~ own account or for the ~~account~~ accounts of ~~any client, if in~~ others which it manages which are identical or similar to securities to which it may effect transactions for the ~~sole and absolute discretion of~~ Fund at the same or similar times. E. Sub-Adviser ~~it is~~ will provide Investment Adviser with copies of Sub-Adviser’s current policies and procedures adopted in accordance with Rule 206(4)-7 under the Adviser Act. To the extent the Fund(s) are required by the Investment Company Act to adopt any such policy or procedure, Investment Adviser will submit such policy or procedure to the Trust’s Board of Trustees for ~~any reason impractical~~ adoption by each of the Funds, with such modifications or ~~undesirable to take such action~~ additions thereto as the Board of Trustees or ~~make such recommendation for~~ Investment Adviser may recommend with the ~~Fund~~concurrence of Sub-Adviser. ~~(g) The~~ F. Sub-Adviser will maintain and preserve all accounts, books and records with respect to ~~each~~ the Fund as are required of an investment adviser of a registered investment company pursuant to the Investment Company Act and Advisers Act and the rules thereunder and shall file with the SEC all forms pursuant to Section 13 13F and 13G of the Exchange Act, with respect to its duties as are set forth herein. ~~(h) The~~ G. Sub-Adviser will, unless and until otherwise directed by ~~the Adviser or the Board and consistent with seeking the best interests of each Fund~~Investment Adviser, exercise ~~(or not exercise in its discretion)~~ all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the Sub-Adviser shall vote all proxies ~~solicited by or with respect to the issuers of securities in which assets of the Fund may be invested~~ in accordance with ~~the~~ Sub-Adviser's ’s then-current proxy voting ~~guidelines, a copy of which has been provided to the Adviser~~policies.

Appears in 1 contract

Samples: Sub Advisory Agreement (ALPS ETF Trust)

SERVICES TO BE RENDERED BY THE SUB. ADVISER ~~(a) Subject~~ A. As sub-adviser to the ~~supervision of the Adviser and the Board~~Fund, ~~the~~ Sub-Adviser ~~shall manage the investment operations and determine the composition of the assets assigned~~ will provide overall portfolio management services to the ~~Sub-Adviser by~~ Fund through the ~~Adviser ("portfolio")~~ coordination of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Fund, in accordance with such Fund's investment objective and policies as stated in the then-current prospectus ("PROSPECTUS") and Statement of Additional Information ("SAI") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT"), as such Prospectus and SAI are amended or supplemented from time to time. As part of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Adviser and the Sub-Adviser of all material facts concerning the investment and reinvestment of the assets in of the ~~Funds,~~ Fund and determination of the composition of the assets of the Fund. The Sub-Adviser (and its ~~key investment personnel~~ directors, managers, officers and ~~operations providing~~ employees) shall perform all services ~~with respect~~ under this Agreement on a discretionary basis, subject to the general direction, supervision and control of the Investment Adviser and the Fund~~; make regular and periodic special written reports~~ 's Board of ~~such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the Board~~Directors, and ~~the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii)~~ in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the followingstrict conformity with: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers ~~Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange~~ Act and ~~the rules under each,~~ any and all other ~~federal~~ applicable laws; (ii) the Fund's Articles of Amendment and ~~state laws~~ Restatement and bylaws; (iii) any and all investment guidelines, instructions and directions provided by the Investment Adviser or ~~regulations applicable to~~ the ~~Trust~~ Fund; (iv) the Fund's compliance policies, procedures and ~~the Fund(s) (the "APPLICABLE LAWS")~~guidelines; and (v) the ~~terms~~ investment objectives, policies and ~~conditions~~ restrictions set forth in the prospectus and statement of ~~exemptive~~ additional information contained in the Fund's Registration Statement on Form N-2 under the Securities Act of 1933, as amended (the "Securities Act") and ~~no-action relief granted to~~ the ~~Trust~~ Investment Company Act, as currently in effect and as supplemented and/or amended from time to ~~time;~~ time (~~vi)~~ respectively, the ~~Trust's policies~~ "Prospectus", the "Statement of Additional Information", and ~~procedures adopted~~ the "Registration Statement"), as each may be modified from time to time by (the ~~Board; and~~ documents described in (~~vii~~ii) through (v) above, the ~~written instructions of the Adviser~~"Fund Documents"). Prior to the commencement of the Sub-Adviser's services hereunder, the Investment Adviser shall provide ~~the~~ Sub-Adviser with current copies of the Trust Declaration, By-Laws, Prospectus and SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief. The Adviser shall also assist the Sub-Adviser with the interpretation an application Fund Documents (or make aware of the ~~Applicable Laws~~electronic availability and website location of such Fund Documents). ~~The~~ Investment Adviser undertakes to provide ~~the~~ Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to the Fund Documents, and Sub-Adviser will not need to comply until a copy or notice has been provided to Sub-Adviser. Fund Documents that are posted to the Fund’s website shall be deemed as notice to Sub-Adviser. Notwithstanding anything contained herein to the contrary, should Sub-Adviser choose to utilize reverse repurchase agreement obligations, derivative instruments or other instruments or trading practices that, according to the Securities and Exchange Commission ("SEC") or its staff, may cause senior securities concerns, the Investment Adviser acknowledges that the monitoring of the use of such instruments or trading practices for compliance with the Investment Company Act, or interpretations or modifications by the SEC, SEC staff or other authority with appropriate jurisdiction, including as may be required for the Fund under Rule 18f-4 of the Investment Company Act is the responsibility of the Sub-Adviser and not the Investment Adviser. The Investment Adviser, and not the Sub-Adviser, is responsible for making recommendations to the Fund regarding and monitoring (for purposes of Investment Company Act compliance, general market conditions and otherwise) the Fund's use of bank borrowings (other than reverse repurchase agreements) or other similar term loans and the Fund's issuance of preferred shares (or other "senior securities" in the form of debt or stock pursuant to Section 18 of the Investment Company Act), if any. The Sub-Adviser shall fully cooperate with the Fund's and the Investment Adviser's Chief Compliance Officers, the Fund's legal counsel, any ~~such above-mentioned document or information~~counsel to the Fund's directors who are not "interested persons" of the Fund (as that term is defined under the Investment Company Act) and the Fund's independent public accounting firm. ~~(c)~~ B. All directions, orders or instructions for the purchase or sale of securities or instruments will be transmitted from the Sub-Adviser to the Investment Adviser for execution of such order using the brokers or other parties as selected by the Investment Adviser. The transmission of such orders from the Sub-Adviser to the Investment Adviser will be made using such security protocols and in the manner prescribed by the Investment Adviser. The Sub-Adviser retains all responsibility for such trades and for such recommendations or directions made. C. The Sub-Adviser will furnish to the Investment Adviser and the Fund, from time to time and as the Investment Adviser may request, reports and other data or information on portfolio transactions and reports and other data or information on the Fund's assets, all in such detail and in such frequency as may be reasonably requested from time to time. The Sub-Adviser will also provide the Investment Adviser and the Fund, upon the Investment Adviser's or the Fund's request, with economic and investment analysis and reports or other investment services normally available to institutional or other clients of the Sub-Adviser. The Sub-Adviser will make available its officers and employees to meet with the Investment Adviser and the Fund's Board of Directors to review the investments of the Fund, on a quarterly, or upon due notice, at a time requested by the Investment Adviser or the Fund's Board of Directors. D. Investment Adviser understands and agrees that Sub-Adviser performs investment management services for various clients and may take action with respect to any of its other clients which may differ from action taken or from the timing or nature of action taken by Sub-Adviser for the Fund. Sub-Adviser's authority hereunder shall not be impaired because of the fact that it may effect transactions with respect to securities for its own account or for the accounts of others which it manages which are identical or similar to securities to which it may direct transactions for the Fund at the same or similar times. E. The Sub-Adviser also will promptly furnish and make available to the Fund such information concerning the Sub-Adviser and its services hereunder as the Investment Adviser or the Fund may request in the preparation of the Fund's or the Investment Adviser's regulatory filings, reports and other documents or in the fulfillment of its other compliance obligations. The Sub-Adviser will review draft filings, reports and other documents provided to it, and provide comments/corrections to the same on a timely basis. In ~~furnishing services hereunder~~addition, the Sub-Adviser will ~~not consult with any other investment adviser~~ provide on a timely basis such certifications or sub-certifications as the Investment Adviser or the Fund may reasonably request in order to support and facilitate certifications required to be provided by the Investment Adviser or the Fund (ior their officers) from time to time. F. The Sub-Adviser shall promptly provide the Investment Adviser's and the Fund's Chief Compliance Officer ("CCO"), ~~(ii) any other Fund~~ upon request, copies of ~~the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit~~ its policies and procedures for compliance by the Sub-Adviser ~~from consulting~~ and the Fund with the Federal Securities Laws as defined in Rule 38a-1 under the Investment Company Act and promptly provide the CCO with copies of any material changes to those policies and procedures. The Sub-Adviser shall fully cooperate with the CCO as to facilitate the CCO's performance of ~~its affiliated persons concerning transactions in securities or other assets~~his/her responsibilities under Rule 38a-1 to review, evaluate and report to the Fund's Board of Directors on the operation of the Sub-Adviser's compliance policies and procedures and shall promptly report to the CCO any "Material Compliance Matter" as defined by Rule 38a-1(e)(2). ~~This also shall not be deemed to prohibit~~ At least annually, the Sub-Adviser ~~from consulting~~ shall provide a certification to the CCO to the effect that the Sub-Adviser has in place and has implemented policies and procedures that are reasonably designed to ensure compliance by the Fund and the Sub-Adviser with ~~any~~ the Federal Securities Laws. G. The Sub-Adviser will maintain all books and records relating to investment decisions, trade orders and similar undertakings of the ~~other covered advisers concerning compliance~~ Sub-Adviser under this Agreement required to be maintained pursuant to the Investment Company Act and the rules and regulations promulgated thereunder with ~~paragraphs (a)~~ respect to transactions made by it on behalf of the Fund including, without limitation, the books and ~~(b) of~~ records required by Rule ~~12d3~~31a-1 l under the Investment Company Act~~.) (d)~~ , and shall timely furnish to the Adviser all information relating to the Sub-Adviser's services hereunder needed by the Adviser to keep such other books and records of the Fund required by Rule 31a-1 under the Investment Company Act. The Sub-Adviser will also preserve all such books and records for the periods prescribed in Rule 31a-2 under the Investment Company Act. The Sub-Adviser further agrees that all books and records maintained hereunder shall be made available to the Investment Adviser and the Fund at any time upon request, including facsimile, without delay, during any business day. Upon termination of this Agreement, the Sub-Adviser, at its expense, ~~will furnish: (i) all necessary facilities and personnel~~shall promptly upon demand, ~~including salaries, expenses and fees of~~ return to the Investment Adviser and/or the Fund any ~~personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping,~~ and all ~~equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement~~such records. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have been provided to the Sub-Adviser or (ii) as described in the Trust's Prospectus and SAI. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Sub-Adviser shall seek to achieve for the Fund "best execution", considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund. (e) Subject to the appropriate policies and procedures approved by the Board, the Sub-Adviser may, to the extent consistent with the safe harbor set forth in Section 28(e) of the Securities Exchange Act of 1934, as amended ("EXCHANGE ACT"), cause each Fund to pay a broker or dealer that provides brokerage or research services to the Adviser, the Sub-Adviser or the Fund an amount of commission for effecting a portfolio transaction in excess of the amount of commission another broker or dealer would have charged for effecting that transaction if the Sub-Adviser determines, in good faith, that such amount of commission is reasonable in relationship to the value of such brokerage or research services provided viewed in terms of that particular transaction or the Sub-Adviser's overall responsibilities to the Fund or its other advisory clients. To the extent consistent with Section 28(e) and the Board, the Sub-Adviser shall not be deemed to have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason of such action. Subject to seeking best execution, the Board or the Adviser may authorize, but not require, the Sub-Adviser to effect transactions in portfolio securities through broker-dealers in a manner that will help generate resources to pay the cost of certain expenses that the Trust is required to ~~pay or for which the Trust is~~ maintain books and records that are required to ~~arrange payment. (f) On occasions when~~ be maintained by the ~~Sub-Adviser deems the purchase or sale~~ Fund's administrator other than as required of ~~a security to be in the best interest of the Fund(s) as well as other clients of the Sub-Adviser and its affiliates, the Sub-Adviser to the extent permitted~~ it by applicable laws and regulations~~, may, but shall be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution~~. ~~Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the~~ Sub-Adviser in the manner which the Sub-Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser agrees that the Sub-Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Fund. The Adviser also acknowledges that the Sub-Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Fund, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the Sub-Adviser, its affiliates, officers or employees may purchase or sell for its or their own account or for the account of any client, if in the sole and absolute discretion of the Sub-Adviser it is for any reason impractical or undesirable to take such action or make such recommendation for the Fund. (g) The Sub-Adviser will maintain all accounts, books and records with respect to each Fund as are required of an investment adviser of a registered investment company pursuant to the Investment Company Act and Advisers Act and the rules thereunder and shall file with the SEC all forms pursuant to ~~Section 13 of~~ the ~~Exchange Act,~~ 1934 Act with respect to its duties as are set forth herein. ~~(h)~~ H. The Investment Adviser will exercise all investor rights with respect to the Fund's assets, including voting proxies in accordance with the Investment Adviser's then-current proxy voting policies and procedures. Investment Adviser will provide the Sub-Adviser with an opportunity to review the proxy votes prior to such vote being made, at which point the Sub-Adviser may direct the Investment Adviser to change the Fund's vote on any particular proxy matter relating to the Fund's portfolio securities, or otherwise provide advice or recommendations on such proxy votes as Investment Adviser might request from time to time. The Sub-Adviser ~~will~~represents that it has adopted and implemented written policies and procedures that are reasonably designed to ensure that, ~~unless and until otherwise directed by~~ to the extent Sub-Adviser or the Board and consistent with seeking the best interests of each Fund, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: is responsible for voting proxies, ~~converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights~~ it votes such proxies in the ~~context~~ best interest of ~~a bankruptcy~~ its clients in compliance with the requirements of Rule 206(4)-6 under the Advisers Act. The Sub-Adviser shall promptly provide notice and copies of any material changes to its policies procedures or other ~~reorganization. Unless the Adviser or the Board gives written instructions~~ guidelines for voting proxies to the ~~contrary~~Fund and the Investment Adviser. Upon request, the Sub-Adviser shall ~~vote all proxies solicited~~ provide the Investment Adviser and the Fund with a complete and current copy of its policies, procedures and other guidelines or a description of the same for the purpose of disclosing such information in the Fund's prospectus or as otherwise required by ~~or with respect~~ applicable law. I. The Sub-Adviser will promptly inform and forward to the ~~issuers of securities in which assets of the Fund may be invested in accordance with the~~ Investment Adviser any and all information received by Sub-~~Adviser~~Adviser relating to any class action or other litigation, any bankruptcy matters, or any other legal proceedings involving the Fund's ~~proxy voting guidelines, a copy of which has been provided to the Adviser~~portfolio investments.

Appears in 1 contract

Samples: Interim Investment Sub Advisory Agreement (Boulder Growth & Income Fund)

SERVICES TO BE RENDERED BY THE SUB. ~~ADVISER~~ADVISER TO THE TRUST ~~(a) Subject~~ A. As sub-adviser to the ~~supervision of the Adviser and the Board~~Fund, the Sub-Adviser ~~shall manage~~ will coordinate the investment ~~operations~~ and reinvestment of the assets of the Fund and determine the composition of the assets ~~assigned to~~ of the ~~Sub-Adviser by the Adviser ("portfolio") of each~~ Fund, ~~including the purchase, retention~~ and ~~disposition of the~~ shall have discretion in purchasing and in selling securities and other ~~instruments held by~~ assets for the Fund, in accordance with ~~such~~ the terms of this Agreement, the Fund~~'s investment objective and policies as stated in the then-current prospectus ("PROSPECTUS")~~ ’s Prospectus and Statement of Additional Information ("“SAI"”) ~~for such Fund contained in~~ and subject to the ~~Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT")~~direction, ~~as such Prospectus~~ supervision and ~~SAI are amended or supplemented from time to time. As part~~ control of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Investment Adviser and the ~~Sub-Adviser~~ Board of all material facts concerning the investment and reinvestment of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the Board, and the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii) in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the following: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws Trustees of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund(s) (the "APPLICABLE LAWS"); (v) the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time; (vi) the Trust's policies and procedures adopted from time to time by the Board; and (vii) the written instructions of the Adviser. Prior to the commencement of the Sub-Adviser's ’s services hereunder, the Investment Adviser shall provide the Sub-Adviser with current copies of the ~~Trust Declaration, By-Laws,~~ Fund’s Prospectus and ~~SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief~~SAI. The ~~Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The~~ Investment Adviser undertakes to provide the Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to ~~any such above-mentioned document or information. (c) In furnishing services hereunder,~~ the Fund’s Prospectus and SAI and the Sub-Adviser will not ~~consult with any other investment adviser~~ need to (i) the Fund, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit the Sub-Adviser from consulting with any of its affiliated persons concerning transactions in securities or other assets. This also shall not be deemed to prohibit the Sub-Adviser from consulting with any of the other covered advisers concerning compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have comply until a copy has been provided to the Sub-Adviser ~~or (ii) as described~~ and agreed upon. B. The Sub-Adviser is authorized, in ~~the Trust's Prospectus and SAI. In placing any~~ its discretion, to place orders for the purchase or and sale of ~~investments for each Fund~~securities with or through such brokers, dealers or banks as the Sub-Adviser may select and to open, maintain and close accounts in the name and on behalf of the Trust and the Fund or any of its ~~nominees~~subsidiaries with such brokers, dealers and banks, and may also place orders directly with an issuer. The Sub-Adviser will seek to obtain best execution under the circumstances of the particular transaction taking into consideration the full range and quality of a broker’s services in placing brokerage including, among other things, the value of research provided as well as execution capability, commission rate, financial responsibility and responsiveness to the Sub-Adviser. Consistent with this principle, the Sub-Adviser ~~shall seek to achieve for the Fund "best execution", considering all~~ may place orders with brokers and dealers (including affiliates of the ~~circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from~~ Adviser or ~~sold to~~ the Sub-Adviser, ~~or any affiliated person thereof, except in accordance~~ subject to compliance with the ~~Investment Company Act, the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund. (e) Subject to the appropriate~~ Trust’s Rule 17e-1 policies and ~~procedures approved by the Board,~~ procedures) that provide the Sub-Adviser ~~may, to the extent consistent~~ with ~~the safe harbor set forth~~ “research services” as such term is used in Section 28(e) of the Securities Exchange Act of 1934, as ~~amended~~ amended, and the rules and regulations thereunder (~~"EXCHANGE ACT"~~the “1934 Act”)~~, cause each Fund to pay a broker or dealer that provides brokerage or~~ . Such research services received from such brokers and dealers will be in addition to, and not in lieu of, the services required to ~~the Adviser,~~ be performed by the Sub-Adviser hereunder or the ~~Fund an amount of commission for effecting a portfolio transaction in excess of the amount of commission another broker or dealer would have charged for effecting that transaction if~~ compensation to be received by the Sub-Adviser ~~determines, in good faith,~~ hereunder. Subject to any Fund procedures that ~~such amount of commission is reasonable in relationship~~ are communicated to ~~the value of such brokerage or research services provided viewed in terms of that particular transaction or~~ the Sub-~~Adviser's overall responsibilities to the Fund or its other advisory clients. To the extent consistent with Section 28(e)~~ Adviser in writing and ~~the Board~~applicable law, the Sub-Adviser shall not be deemed to have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason of ~~such action. Subject~~ its having caused the Fund to ~~seeking best execution, the Board~~ pay a broker or ~~the Adviser may authorize, but not require,~~ dealer that provides brokerage and research services to the Sub-Adviser ~~to effect transactions~~ or its affiliates an amount of commission for effecting a portfolio investment transaction in ~~portfolio securities through broker-dealers in a manner~~ excess of the amount of commission another broker or dealer would have charged for effecting that ~~will help generate resources to pay the cost of certain expenses that the Trust is required to pay or for which the Trust is required to arrange payment. (f) On occasions when~~ transaction, if the Sub-Adviser ~~deems~~ determines in good faith that such amount of commission was reasonable in relation to the ~~purchase or sale of a security to be in the best interest~~ value of the ~~Fund(s) as well as~~ brokerage and research services provided by such broker or dealer, viewed in terms of either that particular transaction or the Sub-Adviser’s overall responsibilities with respect to the Fund and to other clients of the Sub-Adviser and its ~~affiliates,~~ affiliates as to which the Sub-Adviser ~~to the extent permitted by applicable laws~~ and ~~regulations, may,~~ its affiliates exercise investment discretion. The Sub-Adviser may (but ~~shall be under no obligation~~ is not required to, ) aggregate ~~the~~ sales and purchase orders of securities ~~to be purchased~~ or ~~sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred~~ derivatives held in the ~~transaction, will be~~ Fund with similar orders being made simultaneously for other portfolios managed by the Sub-Adviser if, in ~~the manner which~~ the Sub-Adviser's reasonable judgment, such aggregation shall result in an overall economic benefit to the Fund. C. The Investment Adviser ~~considers to be the most equitable~~ understands and ~~consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser~~ agrees that the Sub-Adviser and its affiliates perform investment management services for various clients, some of which have investment strategies similar to the Fund, and may ~~give advice and~~ take action ~~in the performance of their duties~~ with respect to any of its or their other clients ~~that~~ which may differ ~~from advice given~~from, or be substantially similar to, action taken or from the timing or nature of ~~actions taken, with respect to~~ action taken by the Sub-Adviser for the Fund. The Adviser also acknowledges that the Sub-Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Fund, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the Sub-Adviser, ’s authority hereunder shall not be impaired because of the fact that it or its ~~affiliates, officers or employees~~ affiliates may ~~purchase or sell~~ effect transactions with respect to securities for its or their own account or for the ~~account~~ accounts of ~~any client, if in~~ others which the ~~sole and absolute discretion~~ Sub-Adviser or an affiliate manages which are identical or similar to securities with respect to which the Sub-Adviser may effect transactions for the Fund at the same or similar times. D. The Sub-Adviser will provide the Investment Adviser with copies of the Sub-Adviser’s current policies and procedures adopted in accordance with Rule 206(4)-7 under the Advisers Act. To the extent the Fund is required by the 1940 Act to adopt any such policy or procedure, the Investment Adviser ~~it is~~ will submit such policy or procedure to the Board of Trustees for ~~any reason impractical or undesirable to take such action or make such recommendation for~~ adoption by the Fund, with such modifications or additions thereto as the Board of Trustees or the Investment Adviser may recommend with the concurrence of the Sub-Adviser. ~~(g)~~ E. The Sub-Adviser will maintain and preserve all accounts, books and records with respect to ~~each~~ its services hereunder on behalf of the Fund as are required of an investment adviser of a registered investment company pursuant to the ~~Investment Company~~ 1940 Act and Advisers Act and ~~the rules thereunder and~~ shall file with the ~~SEC~~ U.S. Securities and Exchange Commission (“SEC”) all forms it is required to file pursuant to Section 13 13(f) and 13(g) of the ~~Exchange~~ 1934 Act, with respect to its duties as are set forth herein. The records maintained by the Sub-Adviser hereunder on behalf of the Fund and relating to the services provided under this Agreement shall be the property of the Fund. ~~(h)~~ F. The Sub-Adviser will, unless and until otherwise directed by the ~~Adviser or the Board and consistent with seeking the best interests of each Fund~~Investment Adviser, exercise ~~(or not exercise in its discretion)~~ all rights of security holders with respect to securities held by ~~each~~ the Fund, including, but not limited to: , voting proxies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the Sub-Adviser shall vote all proxies ~~solicited by or with respect to the issuers of securities in which assets of the Fund may be invested~~ in accordance with the Sub-Adviser's ’s then-current proxy voting ~~guidelines~~policies. as approved by the Fund and filing class action claims with respect to securities held by the Fund. G. The Sub-Adviser will make available and provide information concerning the Sub-Adviser required by the Fund in the preparation of its registration statements, ~~a copy~~ reports and other documents required by federal and state securities laws, and such other information as the Fund or the Investment Adviser may reasonably request for use in the preparation of ~~which has been provided~~ such documents or of other materials necessary or helpful for the distribution of the Fund’s shares. H. In the performance of its duties and obligations under this Agreement, the Sub-Adviser shall act in conformity with the Fund’s Prospectus and SAI and with the instructions and directions of the Investment Adviser and of the Board of Trustees and will comply in all materials respects with the applicable requirements of the 1940 Act, the Internal Revenue Code of 1986, as amended, and all other applicable federal and state laws and regulations, as each is amended from time to time. I. The Sub-Adviser at its expense will make available to the Board of Trustees and the Investment Adviser at reasonable times its portfolio managers and other appropriate personnel, either in person or by telephone, at the mutual convenience of the Investment Adviser and the Sub-Adviser, in order to review the investment policies, performance and other investment related information regarding a Fund and to consult with the Board of Trustees of the Fund and Investment Adviser regarding the Fund’s investment affairs, including economic, statistical and investment matters related to the Sub-Adviser’s duties hereunder. The Sub-Adviser and its personnel shall also cooperate fully with counsel and auditors for, and the Chief Compliance Officers of, the Investment Adviser and the Trust in matters relating to the Sub-Adviser’s services on behalf of the Fund. J. The Sub-Adviser will review draft reports to shareholders and other documents provided or available to it and provide any comments on a timely basis. The Investment Adviser or the Fund will provide such documents to the Sub-Adviser in a reasonable timeframe prior to the due date. In addition, the Sub-Adviser and each officer and portfolio manager thereof designated by the Investment Adviser will provide on a timely basis such certifications or sub-certifications as the Investment Adviser or the Fund may reasonably request in order to support and facilitate certifications required to be provided by the Trust’s Principal Executive Officer and Principal Accounting Officer in order to satisfy the Trust’s legal and regulatory requirements.

Appears in 1 contract

Samples: Sub Advisory Agreement (Financial Investors Trust)

SERVICES TO BE RENDERED BY THE SUB. ~~ADVISER~~ADVISER TO THE TRUST ~~(a) Subject~~ A. As sub-adviser to ~~the supervision of the Adviser and the Board~~each Fund, ~~the~~ Sub-Adviser ~~shall manage~~ will coordinate the investment ~~operations~~ and reinvestment of the assets of the Fund and determine the composition of the assets ~~assigned to the Sub-Adviser by the Adviser ("portfolio")~~ of ~~each Fund, including the purchase, retention and disposition of the securities and other instruments held by~~ the Fund, in accordance with ~~such~~ the terms of this Agreement, the Fund~~'s investment objective and policies as stated in the then-current prospectus ("PROSPECTUS")~~ ’s Prospectus and Statement of Additional Information ~~("SAI") for such Fund contained in~~ and subject to the ~~Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT")~~xxxxxxxxx, ~~as such Prospectus~~ supervision and ~~SAI are amended or supplemented from time to time. As part~~ control of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Investment Adviser and the ~~Sub-Adviser of all material facts concerning the investment and reinvestment~~ Trustees of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the Board, and the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii) in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the . The Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the ~~Deposit Securities~~ securities to be accepted pursuant to the Fund’s benchmark index in exchange for “Creation Units” for the Fund and the ~~Fund Securities required~~ securities that will be applicable that day to redemption requests received for ~~a Fund Deposit or Redemption for each~~ the Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust~~'s Custodian~~ ’s custodian with respect to such ~~designation) (capitalized terms have the meaning set forth in the Funds' prospectus~~designations)~~. (b)~~ . In ~~furnishing services hereunder~~its capacity as sub-adviser to each Fund, the Sub-Adviser ~~shall be subject to, and shall perform its responsibilities~~ is hereby authorized to execute all necessary documents in ~~accordance~~ connection with the ~~following: (i)~~ investment and reinvestment of each Fund’s assets, including, without limitation, confirmations relating to trades and certifications that a Fund is a “qualified institutional buyer” for purposes of Rule 144A under the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company 1933 Act, the Advisers Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund(s) (the "APPLICABLE LAWS"); (v) the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time; (vi) the Trust's policies and procedures adopted from time to time by the Board; and (vii) the written instructions of the Adviser. Prior to the commencement of the Sub-Adviser's ’s services hereunder, the Investment Adviser shall provide ~~the~~ Sub-Adviser with current copies of the ~~Trust Declaration, By-Laws,~~ Fund’s Prospectus and ~~SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief~~SAI. ~~The Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The~~ Investment Adviser undertakes to provide ~~the~~ Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to ~~any such above-mentioned document or information. (c) In furnishing services hereunder,~~ the Fund’s Prospectus and SAI and Sub-Adviser will not ~~consult with any other investment adviser~~ need to (i) the Fund, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed comply until a copy has been provided to ~~prohibit the~~ Sub-Adviser ~~from consulting with any of its affiliated persons concerning transactions in securities or other assets. This also shall not be deemed to prohibit the~~ and agreed upon. B. Sub-Adviser from consulting with any of the other covered advisers concerning compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required may place orders for the execution of transactions with or through such brokers, dealers or banks as Sub-Adviser ~~to faithfully perform its duties under this Agreement; and (ii) administrative facilities~~may select and, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have been provided to the Sub-Adviser or (ii) as described in the Trust's Prospectus and SAI. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Sub-Adviser shall seek to achieve for the Fund "best execution", considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, the Advisers Act and the rules under each, and all other federal and state laws or regulations applicable to the Trust and the Fund. (e) Subject to the appropriate policies and procedures approved by the Board, the Sub-Adviser may, to the extent consistent with the safe harbor set forth in Section 28(e) of the Securities Exchange Act of ~~1934~~1934 (the “Exchange Act”) and other applicable law, ~~as amended ("EXCHANGE ACT"), cause each Fund to~~ may pay ~~a broker or dealer that provides brokerage or research services to the Adviser, the Sub-Adviser or the Fund an amount of commission for effecting a portfolio transaction~~ commissions on transactions in excess of the amount of ~~commission~~ commissions another broker or dealer would have ~~charged for effecting that transaction if the~~ charged. Sub-Adviser ~~determines~~will seek best execution under the circumstances of the particular transaction taking into consideration the full range and quality of a broker’s services in placing brokerage including, ~~in good faith~~among other things, ~~that such amount of commission is reasonable in relationship to~~ the value of ~~such brokerage or~~ research ~~services~~ provided ~~viewed in terms of that particular transaction or~~ as well as execution capability, commission rate, financial responsibility and responsiveness to the Sub-Adviser's . In no event shall Sub-Adviser be under any duty to obtain the lowest commission or best net price for the Fund on any particular transaction. Sub-Adviser is not under any duty to execute transactions for the Fund before or after transactions for other like accounts managed by Sub-Adviser. Sub-Adviser may aggregate sales and purchase orders of securities or derivatives held in the Fund with similar orders being made simultaneously for other portfolios managed by Sub-Adviser if, in Sub-Adviser’s reasonable judgment, such aggregation shall result in an overall ~~responsibilities~~ economic benefit to the ~~Fund or its other advisory clients.~~ Fund. C. To the extent consistent with ~~Section 28(e) and~~ the ~~Board~~investment strategy for the Fund, ~~the~~ Sub-Adviser ~~shall not be deemed~~ is hereby authorized to ~~have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason~~ purchase, hold and sell The Bank of ~~such action. Subject to seeking best execution~~New York Mellon Corporation stock, which is the ~~Board or the Adviser may authorize, but not require, the Sub-Adviser to effect transactions in portfolio securities through broker-dealers in a manner that will help generate resources to pay the cost~~ stock of certain expenses that the Trust is required to pay or for which the Trust is required to arrange payment. (f) On occasions when the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients an affiliate of the Sub-Adviser. D. Investment Adviser understands and ~~its affiliates, the~~ agrees that Sub-Adviser ~~to the extent permitted by applicable laws~~ performs investment management services for various clients and regulations, may, but shall be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner which the Sub-Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser agrees that the Sub-Adviser and its affiliates may ~~give advice and~~ take action ~~in the performance of their duties~~ with respect to any of ~~their~~ its other clients ~~that~~ which may differ from ~~advice given,~~ action taken or from the timing or nature of ~~actions taken,~~ action taken by Sub-Adviser for the Fund. Sub-Adviser’s authority hereunder shall not be impaired because of the fact that it may effect transactions with respect to the Fund. The Adviser also acknowledges that the Sub-Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Fund, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the Sub-Adviser, its affiliates, officers or employees may purchase or sell securities for its ~~or their~~ own account or for the ~~account~~ accounts of ~~any client, if in~~ others which it manages which are identical or similar to securities to which it may effect transactions for the ~~sole and absolute discretion of~~ Fund at the same or similar times. E. Sub-Adviser ~~it is~~ will provide Investment Adviser with copies of Sub-Adviser’s current policies and procedures adopted in accordance with Rule 206(4)-7 under the Adviser Act. To the extent the Fund(s) are required by the Investment Company Act to adopt any such policy or procedure, Investment Adviser will submit such policy or procedure to the Trust’s Board of Trustees for ~~any reason impractical~~ adoption by each of the Funds, with such modifications or ~~undesirable to take such action~~ additions thereto as the Board of Trustees or ~~make such recommendation for~~ Investment Adviser may recommend with the ~~Fund~~concurrence of Sub-Adviser. ~~(g) The~~ F. Sub-Adviser will maintain and preserve all accounts, books and records with respect to ~~each~~ the Fund as are required of an investment adviser of a registered investment company pursuant to the Investment Company Act and Advisers Act and the rules thereunder and shall file with the SEC all forms pursuant to Section 13 13F and 13G of the Exchange Act, with respect to its duties as are set forth herein. ~~(h) The~~ G. Sub-Adviser will, unless and until otherwise directed by ~~the Adviser or the Board and consistent with seeking the best interests of each Fund~~Investment Adviser, exercise ~~(or not exercise in its discretion)~~ all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the Sub-Adviser shall vote all proxies ~~solicited by or with respect to the issuers of securities in which assets of the Fund may be invested~~ in accordance with ~~the~~ Sub-Adviser's ’s then-current proxy voting ~~guidelines, a copy of which has been provided to the Adviser~~policies.

Appears in 1 contract

Samples: Sub Advisory Agreement (ALPS ETF Trust)

SERVICES TO BE RENDERED BY THE SUB. ADVISER ~~(a) Subject~~ A. As sub-adviser to the ~~supervision of the Adviser and the Board~~Fund, ~~the~~ Sub-Adviser ~~shall manage~~ will coordinate and execute the investment ~~operations~~ and reinvestment of the assets of the Fund and determine the composition of the assets ~~assigned to~~ of the Fund. The Sub-Adviser by (and its directors, managers, officers and employees) shall perform all services under this Agreement on a discretionary basis, subject to the ~~Adviser ("portfolio") of each Fund~~general direction, ~~including the purchase, retention~~ supervision and ~~disposition~~ control of the securities and other instruments held by the Fund, in accordance with such Fund's investment objective and policies as stated in the then-current prospectus ("PROSPECTUS") and Statement of Additional Information ("SAI") for such Fund contained in the Trust's Registration Statement on Form N-1A (the "REGISTRATION STATEMENT"), as such Prospectus and SAI are amended or supplemented from time to time. As part of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) maintain books and records with respect to the Trust's securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Investment Adviser and the ~~Sub-Adviser~~ Fund’s Board of all material facts concerning the investment and reinvestment of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the BoardTrustees, and ~~the Sub-Adviser will attend meetings with the Adviser and/or the Trustees, as reasonably requested, to discuss the foregoing; (iii)~~ in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; (iv) cooperate with and provide reasonable assistance to the Adviser, the Trust's administrator, the Trust's custodian and foreign custodians, the Trust's transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform its responsibilities in accordance with the followingstrict conformity with: (i) the Trust's Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time ("TRUST DECLARATION"); (ii) the By-Laws of the Trust, as the same may be hereafter modified and/or amended from time to time ("BY-LAWS"); (iii) the Prospectus and SAI of the Trust filed with the Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as the same may be hereafter modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers ~~Act, the applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities Exchange~~ Act and ~~the rules under each,~~ any and all other ~~federal and state laws or regulations~~ applicable to laws; (ii) the Fund’s Declaration of Trust and bylaws; (iii) any and all investment guidelines, instructions and directions provided by the ~~Fund(s~~Investment Adviser or the Fund; (iv) (the ~~"APPLICABLE LAWS")~~Fund’s compliance policies, procedures and guidelines; and (v) the ~~terms~~ investment objectives, policies and ~~conditions~~ restrictions set forth in the prospectus and statement of ~~exemptive~~ additional information contained in the Fund’s Registration Statement on Form N-2 under the Securities Act of 1933, as amended (the “Securities Act”) and ~~no-action relief granted to~~ the ~~Trust~~ Investment Company Act, as currently in effect and as supplemented and/or amended from time to ~~time;~~ time (~~vi)~~ respectively, the ~~Trust's policies~~ “Prospectus”, the “Statement of Additional Information”, and ~~procedures adopted~~ the “Registration Statement”), as each may be modified from time to time by (the ~~Board; and~~ documents described in (~~vii~~ii) through (v) above, the ~~written instructions of the Adviser~~“Fund Documents”). Prior to the commencement of the Sub-Adviser's ’s services hereunder, the Investment Adviser shall provide ~~the~~ Sub-Adviser with current copies of the ~~Trust Declaration, By-Laws, Prospectus and SAI and other relevant policies and procedures adopted by the Board and by applicable exemptive and no action relief~~Fund Documents. ~~The Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The~~ Investment Adviser undertakes to provide ~~the~~ Sub-Adviser with copies or other written notice of any amendments, modifications or supplements to ~~any such above-mentioned document or information. (c) In furnishing services hereunder~~the Fund Documents, ~~the~~ and Sub-Adviser will not ~~consult with any other investment adviser~~ need to ~~(i)~~ comply until a copy has been provided to Sub-Adviser. Notwithstanding anything contained herein to the ~~Fund~~contrary, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit the should Sub-Adviser ~~from consulting with any of its affiliated persons concerning transactions in securities~~ choose to utilize reverse repurchase agreement obligations, derivative instruments or other ~~assets. This also shall not be deemed~~ instruments or trading practices that, according to ~~prohibit~~ the ~~Sub-~~Securities and Exchange Commission (“SEC”) or its staff, may cause senior securities concerns, the Investment Adviser ~~from consulting with any~~ acknowledges that the monitoring of the ~~other covered advisers concerning~~ use of such instruments or trading practices for compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's duties under this Agreement. The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have been provided to the Sub-Adviser or (ii) as described in the Trust's Prospectus and SAI. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Sub-Adviser shall seek to achieve for the Fund "best execution", considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with the Investment Company Act, or interpretations or modifications by the ~~Advisers Act~~ SEC, SEC staff or other authority with appropriate jurisdiction, is the responsibility of the Sub-Adviser and not the ~~rules under each~~Investment Adviser. The Investment Adviser, and ~~all other federal and state laws or regulations applicable~~ not the Sub-Adviser, is responsible for making recommendations to the ~~Trust~~ Fund regarding, and monitoring (for purposes of Investment Company Act compliance, general market conditions and otherwise), the Fund’s use of bank borrowings (other than reverse repurchase agreements) or other similar term loans and the Fund’s issuance of preferred shares (or other “senior securities” in the form of debt or stock pursuant to Section 18 of the Investment Company Act), if any. The Sub-Adviser shall fully cooperate with the Fund’s and the Investment Adviser’s Chief Compliance Officers, the Fund’s legal counsel, any counsel to the Fund’s trustees who are not “interested persons” of the Fund (as that term is defined under the Investment Company Act) and the Fund’s independent public accounting firm. ~~(e)~~ B. Subject to any direction from the ~~appropriate policies and procedures approved by~~ Investment Adviser or the ~~Board~~Fund, the Sub-Adviser ~~may~~is responsible for placing orders for the execution of portfolio transactions with or through or with such brokers, dealers, counterparties or banks as Sub-Adviser may select. In choosing broker-dealers, Sub-Adviser may take into account, in addition to commission costs and execution capabilities, the ~~extent consistent with~~ financial stability and reputation of the ~~safe harbor set forth~~ broker-dealers and the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of ~~1934~~1934 (the “1934 Act”)) provided by such broker-dealers. In addition, ~~as amended ("EXCHANGE ACT")~~Sub-Adviser may receive brokerage and research services in connection with certain riskless principal transactions, ~~cause each Fund~~ in accordance with applicable law. Sub-Adviser is authorized to pay ~~a broker or dealer that provides~~ broker-dealers who provide such brokerage or research services a commission (or equivalent) for executing a transaction which is in excess of the commissions (or equivalents) another broker-dealer would have charged for executing that transaction, if Sub-Adviser determines that such commission (or equivalent) is reasonable in relation to the value of the brokerage and research services provided to Sub-Adviser by the broker-dealer. Sub-Adviser will use its best efforts to obtain best execution under the circumstances for all portfolio transactions for the Fund and will use its best judgment to choose the broker-dealer most capable of providing the services necessary to obtain most favorable execution under the circumstances, taking into consideration the full range and quality of a broker-dealer’s services in placing transactions with broker-dealers including, among other things, the value of research provided (with respect to evaluating commissions and commission equivalents) as well as execution capability, commission rate (or commission equivalent), financial stability and responsibility, reputation, and responsiveness to the Sub-Adviser. In no event shall Sub-Adviser be under any duty to obtain the lowest commission for the Fund on any particular transaction. Sub-Adviser is not under any duty to execute transactions for the Fund before or after transactions for other like accounts managed by Sub-Adviser, except to the extent that doing so would violate applicable law. Sub-Adviser may aggregate sales and purchase orders of securities or derivatives held in the Fund with similar orders being made simultaneously for other portfolios managed by Sub-Adviser if, in Sub-Adviser’s reasonable judgment, such aggregation shall result in an overall economic benefit to the Fund, taking into consideration the advantageous selling or purchase price, brokerage commission, and other expenses. If an aggregate order is executed in parts at different prices, or two or more separate orders for two or more of Sub-Adviser’s clients are entered at approximately the same time on any day and are executed at different prices, Sub-Adviser has discretion, subject to its fiduciary duty to the Fund and its other advisory clients, to use an average price at which such securities were purchased or sold for the Fund and each of the clients for whom such orders were executed. Sub-Adviser may engage in brokerage and other securities transactions on behalf of the Fund with broker-dealer affiliates of Sub-Adviser in accordance with applicable Fund documents and applicable law. C. The Sub-Adviser will furnish to the Investment Adviser and the Fund, from time to time and as the Investment Adviser may request, reports and other data or information on portfolio transactions and reports and other data or information on the Fund’s assets, all in such detail and in such frequency as may be requested from time to time. The Sub-Adviser will also provide the Investment Adviser and the Fund, upon the Investment Adviser’s or the Fund’s request, with economic and investment analysis and reports or other investment services normally available to institutional or other clients of the Sub-Adviser. The Sub-Adviser will make available its officers and employees to meet with the Investment Adviser and the Fund’s Board of Trustees to review the investments of the Fund, on a quarterly, or upon due notice, at a time requested by the Investment Adviser or the Fund’s Board of Trustees. D. Investment Adviser understands and agrees that Sub-Adviser performs investment management services for various clients and may take action with respect to any of its other clients which may differ from action taken or from the timing or nature of action taken by Sub-Adviser for the Fund. Sub-Adviser’s authority hereunder shall not be impaired because of the fact that it may effect transactions with respect to securities for its own account or for the accounts of others which it manages which are identical or similar to securities to which it may effect transactions for the Fund at the same or similar times. E. The Sub-Adviser also will promptly furnish and make available to the Fund such information concerning the Sub-Adviser and its services hereunder as the Investment Adviser or the Fund may request in the preparation of the Fund’s or the Investment Adviser’s regulatory filings, reports and other documents or in the fulfillment of its other compliance obligations. The Sub-Adviser will review draft filings, reports and other documents provided to it, and provide comments/corrections to the same on a timely basis. In addition, the Sub-Adviser will provide on a timely basis such certifications or sub-certifications as the Investment Adviser or the Fund ~~an amount~~ may reasonably request in order to support and facilitate certifications required to be provided by the Investment Adviser or the Fund (or their officers) from time to time. F. The Sub-Adviser shall promptly provide the Investment Adviser’s and the Fund’s Chief Compliance Officer (“CCO”), upon request, copies of ~~commission~~ its policies and procedures for ~~effecting a portfolio transaction in excess of the amount of commission another broker or dealer would have charged for effecting that transaction if~~ compliance by the Sub-Adviser ~~determines~~and the Fund with the Federal Securities Laws as defined in Rule 38a-1 under the Investment Company Act and promptly provide the CCO with copies of any material changes to those policies and procedures. The Sub-Adviser shall fully cooperate with the CCO as to facilitate the CCO’s performance of his/her responsibilities under Rule 38a-1 to review, ~~in good faith, that such amount of commission is reasonable in relationship~~ evaluate and report to the ~~value~~ Fund’s Board of ~~such brokerage or research services provided viewed in terms~~ Trustees on the operation of ~~that particular transaction or~~ the Sub-Adviser~~'s overall responsibilities~~ ’s compliance policies and procedures and shall promptly report to the ~~Fund or its other advisory clients~~CCO any “Material Compliance Matter” as defined by Rule 38a-1(e)(2). ~~To the extent consistent with Section 28(e) and the Board~~At least annually, the Sub-Adviser shall not be deemed to have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason of such action. Subject to seeking best execution, the Board or the Adviser may authorize, but not require, the Sub-Adviser to effect transactions in portfolio securities through broker-dealers in provide a manner that will help generate resources to pay the cost of certain expenses that the Trust is required to pay or for which the Trust is required to arrange payment. (f) On occasions when the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Sub-Adviser and its affiliates, the Sub-Adviser certification to the ~~extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate~~ CCO to the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner which the Sub-Adviser considers to be the most equitable and consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser agrees effect that the Sub-Adviser has in place and ~~its affiliates may give advice~~ has implemented policies and ~~take action in~~ procedures that are reasonably designed to ensure compliance by the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Fund. The Adviser also acknowledges that Fund and the Sub-Adviser ~~and its affiliates are fiduciaries to other entities, some of which have~~ with the same or similar investment objectives (and will hold the same or similar investments) as the Fund, and that the Sub-Adviser will carryout its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the Sub-Adviser, its affiliates, officers or employees may purchase or sell for its or their own account or for the account of any client, if in the sole and absolute discretion of the Sub-Adviser it is for any reason impractical or undesirable to take such action or make such recommendation for the FundFederal Securities Laws. ~~(g)~~ G. The Sub-Adviser will maintain all ~~accounts,~~ books and records ~~with respect~~ relating to ~~each Fund as are~~ investment decisions, trade orders and similar undertakings of the Sub-Adviser under this Agreement required ~~of an investment adviser of a registered investment company~~ to be maintained pursuant to the Investment Company Act and ~~Advisers Act~~ the rules and regulations promulgated thereunder with respect to transactions made by it on behalf of the Fund including, without limitation, the books and records required by Rule 31a-l under the Investment Company Act, and shall timely furnish to the Adviser all information relating to the Sub-Adviser’s services hereunder needed by the Adviser to keep such other books and records of the Fund required by Rule 31a-1 under the Investment Company Act. The Sub-Adviser will also preserve all such books and records for the periods prescribed in Rule 31a-2 under the Investment Company Act. The Sub-Adviser further agrees that all books and records maintained hereunder shall be made available to the Investment Adviser and the ~~rules thereunder~~ Fund at any time upon request, including facsimile, without delay, during any business day. Upon termination of this Agreement, the Sub-Adviser, at it expense, shall promptly upon demand, return to the Investment Adviser and the Fund any and all such records. The Sub-Adviser shall not be required to maintain books and records that are required to be maintained by the Fund’s administrator other than as required of it by applicable laws and regulations. Sub-Adviser shall file with the SEC all forms pursuant to ~~Section 13 of~~ the ~~Exchange Act,~~ 1934 Act with respect to its duties as are set forth herein. ~~(h)~~ H. The Sub-Adviser will, unless and until otherwise directed by the ~~Adviser or the Board and consistent with seeking the best interests of each Fund~~Investment Adviser, exercise ~~(or not exercise in its discretion)~~ all investor rights ~~of security holders~~ with respect to ~~securities held by each~~ the Fund’s assets, including, but not limited to: , voting proxies, converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the Sub-Adviser shall vote all proxies ~~solicited by or with respect to the issuers of securities in which assets of the Fund may be invested~~ in accordance with the Sub-Adviser's ’s then-current proxy voting ~~guidelines~~policies and procedures. The Sub-Adviser will report quarterly to the Investment Adviser and the Fund regarding such voting in a format reasonably requested by the Investment Adviser or the Fund. The Sub-Adviser represents that it has adopted and implemented written policies and procedures that are reasonably designed to ensure that the Sub-Adviser votes proxies in the best interest of the Fund in compliance with the requirements of Rule 206(4)-6 under the Advisers Act. The Sub-Adviser shall promptly provide notice and copies of any material changes to its policies procedures or other guidelines for voting proxies to the Fund and the Investment Adviser. Upon request, the Sub-Adviser shall provide the Investment Adviser and the Fund with a complete and current copy of ~~which has been provided~~ its policies, procedures and other guidelines or a description of the same for the purpose of disclosing such information in the Fund’s prospectus or as otherwise required by applicable law. The Sub-Adviser will promptly inform and forward to the ~~Adviser~~Investment Adviser any and all information received by Sub-Adviser relating to any class action or other litigation, any bankruptcy matters, or any other legal proceedings involving the Fund’s portfolio investments.

Appears in 1 contract

Samples: Investment Sub Advisory Agreement (Principal Real Estate Income Fund)

SERVICES TO BE RENDERED BY THE SUB. ADVISER (a) Subject to the ~~supervision~~ oversight of the Adviser and the Board, the Sub-Adviser shall manage the investment operations and determine the composition of the assets assigned to the Sub-Adviser by the Adviser ("“portfolio"”) of each Fund, including the purchase, retention and disposition of the securities and other instruments held by the Fund, on a discretionary basis but subject to and in accordance with such Fund's ’s investment ~~objective~~ objective, restrictions, and policies as stated in the then-current prospectus (~~"PROSPECTUS"~~“Prospectus”) and Statement of Additional Information ("“SAI"”) for such Fund contained in the Trust's ’s Registration Statement on Form ~~N-1A~~ N-lA (the ~~"REGISTRATION STATEMENT"~~“Registration Statement”), as such ~~Prospectus and SAI~~ documents are amended or supplemented from time to time. As part of the services it will provide hereunder, the Sub-Adviser shall: (i) provide supervision of each Fund's ’s investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; (ii) ~~maintain~~ maintain, or cause to be maintained, books and records with respect to the Trust's ’s securities transactions and ~~keep~~ shall render to the Board ~~and~~ such reports as the Board or the Adviser ~~fully informed on an ongoing basis~~ may reasonably request and as agreed by the Adviser and the Sub-Adviser of in relation to all material facts with respect to the Funds concerning the investment and reinvestment of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make ~~regular and periodic special~~ written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the Board, and the Sub-Adviser will attend meetings with the Adviser and/or the ~~Trustees~~Board, as reasonably requested, to discuss the foregoing; (iii) in accordance with procedures and methods established by the Board, which may be amended from time to time, provide reasonable assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in ~~the~~ a Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security;; and (iv) instruct (where applicable), cooperate with and provide reasonable assistance to the Adviser, the Trust's ’s administrator, the Trust's ’s custodian and foreign custodians, the Trust's ’s transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and (v) the Sub-Adviser shall initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust's Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds' prospectus). (b) In furnishing services hereunder, the Sub-Adviser shall ~~be subject to, and shall~~ perform its responsibilities in ~~accordance~~ conformity with the following: (i) the Trust's ’s Agreement and Declaration of Trust, as the same may be hereafter modified and/or amended from time to time (~~"TRUST DECLARATION"~~“Trust Declaration”); (ii) the By-Laws of the Trust, as the same may be hereafter modified and/or amended from time to time (~~"BY~~“By-~~LAWS"~~Laws”); (iii) the Prospectus and SAI of the Trust (as modified, amended and/or supplemented) that have been filed with the Securities and Exchange Commission ("“SEC"”) and delivered to the Sub-Adviser~~, as the same may be hereafter modified, amended and/or supplemented~~; (iv) the applicable provisions of the MiFID Regulations, the Investment Company Act, the Advisers Act, the ~~applicable provisions~~ Securities Act of 1933 (the “Securities Act”), the Securities Exchange Act of 1934 (the “Exchange Act”), the Internal Revenue Code of 1986, the Commodities Exchange Act, each as amended, and the ~~Commodities Exchange Act~~ rules and ~~the rules~~ regulations under each, and all other ~~federal~~ laws, rules, regulations and ~~state laws~~ case law of the relevant jurisdictions where investments of the Fund(s) are made or ~~regulations~~ otherwise applicable to the ~~Trust and~~ Trust, the Fund(s) and/or the Sub-Adviser with respect to the performance of its activities contemplated by this Agreement (collectively, the ~~"APPLICABLE LAWS"~~“Applicable Laws”); (v) the terms and conditions of exemptive and no-action relief granted to the Trust as amended from time to time; (vi) the Trust's ’s policies and procedures adopted from time to time by the Board; and (vii) the written instructions and directions of the ~~Adviser~~Adviser and the Board. ~~Prior to the commencement of the Sub-Adviser's services hereunder, the~~ The Adviser shall provide the Sub-Adviser with current copies of the Trust Declaration, By-Laws, Prospectus and SAI and other relevant policies and procedures adopted by the Board and by any applicable exemptive and no action ~~relief. The Adviser shall also assist the Sub-Adviser with the interpretation an application of the Applicable Laws. The Adviser undertakes to provide the Sub-Adviser with~~ relief (and any copies or ~~other~~ written notice of any amendments, modifications or supplements to any such above-mentioned document or ~~information.~~information material to the services to be rendered by the Sub-Adviser hereunder). The Adviser shall, upon request by the Sub-Adviser, assist the Sub-Adviser with the interpretation and application of the Applicable Laws. EXECUTION COPY (c) In furnishing services hereunder, the Sub-Adviser will not consult with any other ~~investment~~ sub-adviser to (i) the Fund, (ii) any other Fund of the Trust or (iii) any other investment company under common control with the Trust concerning transactions of the Fund in securities or other assets. (This shall not be deemed to prohibit the Sub-Adviser from consulting with any of its affiliated persons concerning transactions in securities or other assets. This also shall not be deemed to prohibit the Sub-Adviser from consulting with any of the other covered advisers concerning compliance with paragraphs (a) and (b) of Rule 12d3-1 l under the Investment Company Act.) (d) The Sub-Adviser, at its expense, will ~~furnish~~arrange: (i) all necessary facilities and personnel, including salaries, expenses and fees of any personnel required for the Sub-Adviser to faithfully perform its duties under this Agreement; and (ii) administrative facilities, including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser's ’s duties under this Agreement. . (e) The Sub-Adviser will select brokers and dealers to effect all portfolio transactions subject to the conditions set forth herein which may include brokers and dealers affiliated with the Sub-Adviser if and as permitted by ~~applicable law~~Applicable Law and the policies and procedures of the Trust as in effect from time to time. The Sub-Adviser will place all necessary orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable. The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in accordance with any written policies, practices or procedures that may be established by the Board or the Adviser from time to time and which have been provided to the Sub-Adviser or (ii) as described in the Trust's ’s Prospectus and SAI. In placing any orders for the purchase or sale of investments for each Fund, in the name of the Fund or its nominees, the Sub-Adviser shall seek to achieve for the Fund "“best execution"” in line with its best execution policy, considering all of the circumstances, and shall maintain records adequate to demonstrate compliance with this requirement. In no instance will portfolio securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except in accordance with ~~the Investment Company Act, the Advisers Act~~ Applicable Laws and the ~~rules under each~~policies and procedures of the Trust as in effect from time to time. The Adviser reserves the right from time to time to specify the brokers and dealers to be used by the Sub-Adviser, and ~~all other federal~~ any terms on which transactions are entered into through or with such brokers and ~~state laws or regulations applicable to the Trust and the Fund~~dealers. (ef) Subject to the appropriate policies and procedures approved by the Board, the Sub-Adviser may, to the extent consistent with ~~the safe harbor set forth in~~ Section 28(e) of the ~~Securities~~ Exchange ~~Act of 1934, as amended ("EXCHANGE ACT")~~Act, cause each Fund to pay a broker or dealer that provides brokerage or research services to the Adviser, the Sub-Adviser or the Fund an amount of commission for effecting a portfolio transaction in excess of the amount of commission another broker or dealer would have charged for effecting that transaction if the Sub-Adviser determines, in good faith, that such amount of commission is reasonable in ~~relationship~~ relation to the value of such brokerage or research services provided viewed in terms of that particular transaction or the Sub-Adviser's ’s overall responsibilities to ~~the Fund or~~ its ~~other~~ advisory clients. To the extent consistent with Section 28(e) and the ~~Board~~provisions of this Agreement, the Sub-Adviser shall not be deemed to have acted unlawfully or to have breached any fiduciary duty ~~created by~~ under this Agreement or ~~otherwise~~ Applicable Law solely by reason of such action. ~~Subject to seeking best execution, the~~ The Board or the Adviser may ~~authorize, but not require,~~ instruct the Sub-Adviser to effect transactions in portfolio securities through broker-dealers in a manner that will help generate resources to pay the cost of certain expenses that the Trust is required to pay or for which the Trust is required to arrange payment. (fg) On occasions when the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Fund(s) as well as other clients of the Sub-Adviser and its affiliates, the Sub-Adviser to the extent permitted by ~~applicable laws and regulations~~Applicable Laws, may, but shall be under no obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more favorable price or lower brokerage commissions and efficient execution. Allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser fairly and in the manner which the Sub-Adviser considers to be ~~the most equitable and~~ consistent with its fiduciary obligations to each Fund and to its other clients over time. The Adviser agrees that the Sub-Adviser and its affiliates may give advice and take action in the performance of their duties with respect to any of their other clients that may differ from advice given, or the timing or nature of actions taken, with respect to the Fund. The Adviser also acknowledges that the Sub-Adviser and its affiliates are fiduciaries to other entities, some of which have the same or similar investment objectives (and will hold the same or similar investments) as the Fund, and that the Sub-Adviser will ~~carryout~~ carry out its duties hereunder together with its duties under such relationships. Nothing in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or sale for the Fund any investment that the Sub-Adviser, its affiliates, officers or employees may purchase or sell for its or their own account or for the account of any client, if in the sole and absolute discretion of the Sub-Adviser it is for any reason impractical or undesirable to take such action or make such recommendation for the Fund. (gh) The Sub-Adviser will maintain all accounts, books and records with respect to each Fund as are required by Applicable Law, including but not limited to subparagraphs (b)(5), (6), (7), (9), (10), and (11) and paragraph (f) of ~~an investment adviser of a registered investment company pursuant to~~ Rule 31a-1 under the Investment Company ~~Act and Advisers Act and the rules thereunder and~~ Act, and, as applicable, shall ~~file~~ cause to be filed with the SEC all forms pursuant to Section 13 of the Securities Exchange ~~Act~~Act of 1934, as amended, with respect to its duties as are set forth herein. The Sub-Adviser shall provide to the Adviser or the Board such periodic and special reports, balance sheets or financial information, and such other information with regard to its affairs as the Adviser or Board may reasonably request. (hi) The Sub-Adviser agrees to permit the Adviser, the Trust’s officers and a Fund’s independent registered public accounting firm to inspect and/or audit such records pertaining to the Fund at all reasonable times during regular business hours upon notice. In addition, for the duration of this Agreement, the Sub-Adviser shall preserve for the periods prescribed by Rule 31a-2 under the Investment Company Act and Rule 204-2 under the Advisers Act any such records as are required to be maintained by it pursuant to this Agreement or Applicable Law, and (while it may retain copies thereof as described above) shall transfer said records to any successor sub-adviser upon the termination of this Agreement (or, if there is no successor sub-adviser, to the Adviser). EXECUTION COPY (j) The Sub-Adviser will, unless and until otherwise directed by the Adviser or the Board and consistent with seeking the best interests of each Fund, exercise (or not exercise in its discretion) all rights of security holders with respect to securities held by each Fund, including, but not limited to: ~~voting proxies,~~ converting, tendering, exchanging or redeeming securities; acting as a claimant in class action litigation (including litigation with respect to securities previously held); and exercising rights in the context of a bankruptcy or other reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the Sub-Adviser shall ~~vote all proxies solicited by or~~ have full discretionary authority in connection with ~~respect~~ any corporate action relating to the ~~issuers of securities~~ Fund which requires discretionary action by the Adviser, to take any action in ~~which assets of the Fund may be invested in accordance with~~ relation to such corporate action as the Sub-~~Adviser's proxy voting guidelines, a copy of which has been provided to~~ Adviser deems appropriate under the ~~Adviser~~then prevailing circumstances.

Appears in 1 contract

Samples: Investment Sub Advisory Agreement (State Street Institutional Investment Trust)

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