EXECUTION VERSION
INVESTMENT ADVISORY AGREEMENT
THIS INVESTMENT ADVISORY AGREEMENT, dated
as of December 1, 2017 (the "Agreement"), by and
between ABERDEEN INCOME CREDIT STRATEGIES
FUND (formerly, Avenue Income Credit Strategies
Fund), a Delaware statutory trust (the "Fund") and
ABERDEEN ASSET MANAGERS LIMITED (the
"Adviser"), a Scottish corporation registered under the
Investment Advisers Act of 1940 (the "Advisers Act"), is
authorized and regulated by the Financial Conduct
Authority of the United Kingdom (the "FCA"), and is
engaged in the business of rendering investment
advisory services to investment companies and other
institutional clients.
SECTION l. Appointment and Duties of Adviser. (a)
Subject to the terms and conditions set forth herein, the
Fund hereby appoints the Adviser, subject to the review
and supervision of the Board of Trustees of the Fund
(the "Board"), to act as the investment adviser for and to
manage the investment and reinvestment of the assets
of the Fund in accordance with the Fund's stated
investment objectives and policies and limitations, and to
manage the day-to-day business and affairs of the Fund
(except with respect to matters in the charge of the
Fund's chief compliance officer or other service
providers retained by the Fund), for the period and on
the terms set forth in this Agreement. The investment of
funds shall be subject to all restrictions of applicable law
(unless able to rely on an exemption or exemptive relief)
and the Amended and Restated Declaration of Trust and
By-Laws of the Fund, and resolutions of the Board as
may from time to time be in force and delivered in writing
to the Adviser. The Adviser acknowledges and agrees
that subject to the supervision and directions of the
Trust's Board of Trustees, it shall be responsible for
compliance with all disclosure requirements under all
applicable federal and state laws and regulations relating
to the Fund, including, without limitation, the 1940 Act,
and the rules and regulations thereunder, except that the
Adviser shall not have liability in connection with
information furnished by an unaffiliated sub-adviser, an
independent Trustee, independent Trustees' counsel or
any other unaffiliated third party to the Fund or to the
Adviser.
(b) The Adviser accepts such appointment and agrees
during the term of this Agreement to:
(i) supervise the investment activities of the Fund,
including advising and consulting with the Board as the
Board may reasonably request;
(ii) continuously manage the assets of the Fund in a
manner consistent with the stated investment objectives
and
policies of the Fund;
(iii) determine the securities to be purchased, sold or
otherwise disposed of by the Fund and the timing of
such purchases, sales and dispositions, including the
placing of purchase and sale orders on behalf of the
Fund, as necessary or appropriate;
(iv) furnish offices, facilities and equipment to the Fund
to the extent necessary for the management of the Fund;
(v) render periodic reports to the Board as the Board
may reasonably request regarding the Fund's
investment program and the services provided by the
Adviser hereunder; and
(vi) exercise or procure the exercise of any proxy voting
rights or other powers and discretion conferred on the
registered holder or the beneficial owner of any
securities in the Fund. 2
(c) The Adviser may delegate any of the foregoing
responsibilities to a third party with the consent of the
Fund, and with respect to foreign securities, may obtain
statistical and other factual information and advice
regarding economic factors and trends from its foreign
affiliates, and may obtain investment services from the
investment advisory personnel of its affiliates located
throughout the world to the extent permitted under
interpretations of the federal securities law.
(d) The Fund acknowledges that the Adviser makes no
warranty that any investments made by the Adviser
hereunder will not depreciate in value or at any time not
be affected by adverse tax consequences, nor does it
give any warranty as to the performance or profitability of
the assets or the success of any investment strategy
recommended or used by the Adviser.
(e) The Adviser is authorized on behalf of the Fund to
establish brokerage, bank and other accounts and
agreements.
(f) The Adviser shall regard the Fund as a professional
client in respect of its FCA obligations.
SECTION 2. Transactions with Affiliates. The Adviser is
authorized on behalf of the Fund, from time to time when
deemed to be in the best interests of the Fund and to the
extent permitted by applicable law or any exemptions
thereto, to purchase and/or sell securities and other
instruments which the Adviser or any of its affiliates
owns, underwrites, deals in, makes a market in and/or
for the issuer thereof performs or seeks to perform
investment banking or other services. The Adviser is
further authorized, to the extent permitted by applicable
law, to select brokers (including any brokers affiliated
with the Adviser) for the execution of trades for the Fund.
SECTION 3. Best Execution; Research Services. The
Adviser is authorized, for the purchase and sale of the
Fund's portfolio securities and other instruments, to
employ such dealers and brokers as may, in the
judgment of the Adviser, implement the policy of the
Fund to obtain the best execution, taking into account
such factors as price, including dealer spread, the size,
type and difficulty of the transaction involved, the firm's
general execution and operational facilities and the firm's
risk in positioning the securities involved. Consistent with
this policy, the Adviser is authorized to direct the
execution of the Fund's portfolio transactions to dealers
and brokers furnishing statistical information or research
deemed by the Adviser to be useful or valuable to the
performance of its investment advisory functions for the
Fund. It is understood that in these circumstances, as
contemplated by Section 28(e) of the Securities
Exchange Act of
1934, as amended, the commissions paid may be higher
than those which the Fund might otherwise have paid to
another broker if those services had not been provided.
Information so received will be in addition to and not in
lieu of the services required to be performed by the
Adviser. It is understood that the expenses of the
Adviser will not necessarily be reduced as a result of the
receipt of such information or research. Research
services furnished to the Adviser by brokers who effect
transactions for the Fund may be used by the Adviser in
servicing other investment companies, funds and
accounts which it manages. Similarly, research services
furnished to the Adviser by brokers who effect
transactions for other investment companies, funds and
accounts which the Adviser manages may be used by
the Adviser in servicing the Fund. It is understood that
not all of these research services are used by the
Adviser in managing any particular account, including
the Fund.
The Adviser and its affiliates may aggregate purchase or
sale orders for the Fund with purchase or sale orders for
the same instrument for the accounts of other clients of
the Adviser or of its affiliates and the Adviser's own
accounts, if such aggregation is consistent with
applicable law. However, the Adviser is under no
obligation to aggregate any such orders under any
circumstances.
SECTION 4. Independent Contractor. The Adviser shall
be deemed to be an independent contractor under this
Agreement and, unless otherwise expressly provided or
authorized, shall have no authority to act for or represent
the Fund in any way or otherwise be deemed as agent of
the Fund.
SECTION 5. Non-Exclusive Agreement. The services of
the Adviser to the Fund under this Agreement are not
exclusive, and the Adviser and any of its affiliates or
related persons shall be free to render similar services or
other services to others. Without limiting the generality of
the foregoing, the Adviser and its affiliates are not
restricted from forming additional investment funds, from
entering into other investment advisory relationships or
from engaging in other business activities, even though
such activities may be in 3
competition with the Fund or may involve substantial
time and resources from the Adviser.
SECTION 6. Fee. (a) For the services described in
Section 1, the Fund will accrue daily and pay to the
Adviser in U.S. dollars, within five business days after
the end of each calendar month, a monthly investment
management fee for such month at an annual rate of
1.25% of the Fund's average daily "Managed Assets"
during such month. "Managed Assets" are the total
assets of the Fund (including any assets attributable to
money borrowed for investment purposes, including
proceeds from (and assets subject to) reverse
repurchase agreements, any credit facility and any
issuance of preferred shares or notes) minus the sum of
the Fund's accrued liabilities (other than Fund liabilities
incurred for the purpose of leverage).
(b) For purposes of calculating such investment
management fee, the value of the Fund's total assets
shall be computed at the time and in the manner
specified for the calculation of the Fund's total assets in
the Fund's Registration Statement on Form N-2 (in the
section entitled "Net Asset Value"), as in effect from time
to time, filed with the Securities and Exchange
Commission (the "Commission") under the Investment
Company Act of 1940, as amended (the "1940 Act") and
the Securities Act of 1933, as amended. Further, on any
day when the value of the Fund's total assets is not
calculated, the Fund's total assets, for purposes of
calculating the investment management fee, shall be
deemed to be the Fund's total assets as of the close of
business of the last day on which such calculation was
made.
(c) For the month and year in which this Agreement
becomes effective or terminates, there shall be an
appropriate proration of the Adviser's fee on the basis of
the number of days that the Agreement is in effect during
such month and year, respectively.
SECTION 7. Expenses. (a) In addition to the fee of the
Adviser, the Fund shall pay all of its expenses, including,
among others, legal fees and expenses of counsel to the
Fund and to the Fund's independent trustees; insurance,
including trustees and officers insurance and errors and
omissions insurance; auditing and accounting expenses;
taxes and governmental fees; listing fees; dues and
expenses incurred in connection with membership in
investment company organizations; fees and expenses
of the Fund's custodians, administrators, transfer agents,
registrars and other service providers; expenses for
portfolio pricing services by a pricing agent, if any; other
expenses in connection with the
issuance, offering and underwriting of shares or debt
instruments issued by the Fund or with the securing of
any credit facility or other loans for the Fund; expenses
relating to investor and public relations; expenses of
registering or qualifying securities of the Fund for public
sale; brokerage commissions and other costs of
acquiring or disposing of any portfolio holding of the
Fund; expenses of preparation and distribution of
reports, notices and dividends to shareholders;
expenses of the dividend reinvestment plan (except for
brokerage expenses paid by participants in such plan);
compensation and expenses of trustees; costs of
stationery; any litigation expenses; and costs of
shareholder, Board and other meetings.
(b) The Adviser shall arrange, if acceptable to the Fund,
for officers or employees of the Adviser to serve, without
compensation from the Fund, as trustees, officers or
agents of the Fund if duly elected or appointed to such
positions and subject to their individual consent and to
any limitations imposed by the law.
SECTION 8. Interested Persons. Subject to applicable
statutes and regulations, it is understood that trustees,
officers, shareholders and agents of the Fund are or may
be interested in the Adviser as directors, officers,
shareholders, agents or otherwise and that the directors,
officers, shareholders and agents of the Adviser may be
interested in the Fund as trustees, officers,
shareholders, agents or otherwise.
SECTION 9. Liability. (a) The Adviser shall not be liable
for any error of judgment or mistake of law, or for any act
or omission or any loss suffered by the Fund in
connection with the matters to which this Agreement
relates, except a loss resulting from willful misfeasance,
bad faith or gross negligence on the part of the Adviser
in the performance of its obligations and duties
("disabling conduct"). The Adviser may consult with
counsel and accountants in respect of the Fund's affairs
and shall be fully protected and justified in any action or
inaction which is taken in accordance with the advice or
opinion of such counsel and accountants; provided, that
such counsel or accountants were selected with
reasonable care.
(b) The Fund will indemnify the Adviser against, and hold
it harmless from, any and all losses, claims, damages,
liabilities or expenses (including reasonable counsel fees
and expenses), including any 4
amounts paid in satisfaction of judgments, in
compromise or settlement or as fines or penalties, not
resulting from disabling conduct by the Adviser.
Indemnification shall be made only following: (i) a final
decision on the merits by a court or other body before
which the proceeding was brought that the Adviser was
not liable by reason of disabling conduct or (ii) in the
absence of such a decision, a determination, based
upon a review of the facts, that it would be reasonable to
conclude that the Adviser was not liable by reason of
disabling conduct by (a) the vote of a majority of a
quorum of trustees of the Fund who are neither
"interested persons" (as defined in the 0000 Xxx) of the
Fund nor parties to the proceeding ("disinterested non-
party trustees") or (b) an independent legal counsel in a
written opinion. The Adviser shall be entitled to
advances from the Fund for payment of the reasonable
expenses (including reasonable counsel fees and
expenses) incurred by it in connection with the matter as
to which it is seeking indemnification in the manner and
to the fullest extent permissible under law. Prior to any
such advance, the Adviser shall provide to the Fund a
written affirmation of its good faith belief that the
standard of conduct necessary for indemnification by the
Fund has been met and a written undertaking to repay
any such advance if it should ultimately be determined
that the standard of conduct has not been met. In
addition, at least one of the following additional
conditions shall be met: (x) the Adviser shall provide a
security in form and amount acceptable to the Fund for
its undertaking; (y) the Fund is insured against losses
arising by reason of the advance; or (z) a majority of a
quorum of disinterested non-party trustees or
independent legal counsel, in a written opinion, shall
have determined, based on a review of facts readily
available to the Fund at the time the advance is
proposed to be made, that there is reason to believe that
the Adviser may ultimately be found to be entitled to
indemnification.
(c) U.S. federal securities laws impose liabilities under
certain circumstances on persons who act in good faith
and nothing herein shall constitute a waiver of or
limitation on any right which the Fund may have under
any applicable securities laws.
SECTION 10. Term. (a) This Agreement shall become
effective on the date hereof and shall remain in full force
for the two-year period from the effective date hereof
unless sooner terminated as hereinafter provided. This
Agreement shall continue in force from year to year
thereafter, but only for so long as such continuance is
specifically approved as least annually in the manner
required by the 1940 Act.
(b) This Agreement shall automatically terminate in the
event of its assignment (as defined in the 1940 Act). This
Agreement may be terminated at any time without the
payment of any penalty by the Fund or by the Adviser on
sixty (60) days written notice to the other party. The
Fund may effect termination by action of the Board or by
vote of a majority of the outstanding voting securities of
the Fund, accompanied by appropriate notice.
(c) Termination of this Agreement shall not affect the
right of the Adviser to receive payment on any unpaid
balance of the compensation described in Section 6
above earned prior to such termination.
SECTION 11. Subadviser. The Adviser may employ one
or more subadvisers to perform such of the acts and
services of the Adviser, and upon such terms and
conditions as may be agreed upon between the Adviser
and such subadviser and agreed or approved by the
Trustees of the Fund, all as permitted by the 1940 Act.
SECTION 12. Representations and Warranties. The
Adviser represents and warrants that it is duly registered
and authorized as an investment adviser under the
Investment Advisers Act of 1940, as amended (the
"Advisers Act"), and the Adviser agrees to maintain
effective all material registration, authorizations and
licenses required for the performance of its duties
hereunder, as the case may be, until the termination of
this Agreement.
SECTION 13. Severability. If any provision of this
Agreement shall be held or made invalid by a court
decision, statue, rule or otherwise, the remainder shall
not thereby be affected.
SECTION 14. Notices. Any notice, request, instruction,
or other document to be given under this Agreement by
any party hereto to the other party shall be in writing
and, if other than routine business correspondence,
delivered by
(i) confirmed facsimile, (ii) registered or certified mail or
United States Postal Service Express Mail, (iii) a 5
nationally recognized overnight courier, (iv) hand, or (v)
e-mail (so long as a receipt for such e-mail is requested
and received). Such writing shall be addressed to a party
as set forth below, or to such other address as a party
may from time to time designate in any notice. Any
notice given hereunder shall be effective upon receipt.
If to the Fund:
Aberdeen Income Credit Strategies Fund
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Legal
If to the Adviser:
Aberdeen Asset Managers Limited
Bow Xxxxx Xxxxx, 0 Xxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxxxx
XX0X 0XX
Attn: Legal
SECTION 15. Disclaimer. The Adviser acknowledges
and agrees that, as provided by Section 8.01 of the
Amended and Restated Declaration of Trust of the Fund,
(i) this Agreement has been executed by officers of the
Fund in their capacity as officers, and not individually,
and (ii) the shareholders, trustees, officers, employees
and other agents of the Fund shall not personally be
bound by or liable hereunder, nor shall resort be had to
their private property for the satisfaction of any obligation
or claim hereunder and that any such resort may only be
had upon the assets and property of the Fund.
SECTION 16. Use of the Name "Aberdeen". The Adviser
hereby consents to the Fund using the identifying word
"Aberdeen" in the name of the Fund. Such consent is
expressly conditioned upon the Fund's employment of
the Adviser, or its successor, subsidiary, parent or
affiliate under common control, as investment adviser to
the Fund. As between the Adviser and the Fund, the
Adviser any and all goodwill associated with such use
shall inure to the sole benefit of the Adviser. The Fund
shall use "Aberdeen" solely in the form stipulated by the
Adviser and shall observe such standards as the Adviser
from time to time prescribes. The Adviser shall have the
right to inspect any designation, document or other
media bearing "Aberdeen" including any promotional
material. The Adviser may from time to time use, or
consent to others using, the identifying word "Aberdeen"
in any name or for other purpose, including without
limitation in the names of other investment companies,
corporations or businesses that it may manage, advise,
sponsor or own or in which it may have a financial
interest. The Fund acknowledges and agrees that the
Adviser may require the Fund to cease using the
identifying word "Aberdeen" if the Fund ceases to
employ the Adviser, or its successor, subsidiary, parent
or affiliate under common control, as investment adviser
to the Fund.
SECTION 17. Governing Law. All questions concerning
the validity, meaning and effect of this Agreement shall
be determined in accordance with the laws (without
giving effect to the conflict-of-law principles thereof) of
the State of Delaware applicable to contracts made and
to be performed in that state.
SECTION 18. Force Majeure. The Adviser shall not be
liable for the nonperformance of its obligations
hereunder by reason of circumstances preventing the
Adviser from performance, including, but not limited to,
any breakdown or failure of transmission or
communication or computer facilities (including, without
limitation, hardware or software), internet, firewalls,
encryptions systems, security devices, or power supply,
postal or other strikes or similar industrial action, the
failure of any relevant exchange, clearing house and/or
broker for any reason to perform its obligations,
government restrictions, exchange or market rulings,
suspensions of trading, acts of civil or military authority,
national emergencies, 6
riots, terrorism, war or such event of similar nature, labor
difficulties, non-performance by a third party not hired or
otherwise selected by it to provide services in connection
with this Agreement, natural disaster, casualty, elements
of nature, fires, earthquakes, floods, or other
catastrophes, acts of God, mechanical breakdowns, or
malfunctions, failure or disruption of utilities; provided
that any such aforementioned reason for
nonperformance is beyond the Adviser's reasonable
control. Further, the Adviser shall maintain disaster
recovery, business continuity and cybersecurity
procedures in effect consistent with those of similar
registered investment advisers to mutual funds.
SECTION 19. Miscellaneous. The Fund acknowledges
receipt of Part II of the Adviser's Form ADV, which
states information relative to the Adviser's investment
and brokerage policies and other important matters.
SECTION 20. Counterparts. This Agreement may be
executed in two or more counterparts, each of which
shall
be deemed to be an original, but all of which together
shall constitute one and the same instrument.
SECTION 21. Indulgences, Not Waivers. Neither the
failure nor any delay on the part of a party to exercise
any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, remedy, power
or privilege preclude any other or further exercise of the
same or of any other right, remedy, power or privilege,
nor shall any waiver or any right, remedy, power or
privilege with respect to any occurrence be construed as
a waiver of such right, remedy, power or privilege with
respect to any other occurrence. No waiver shall be
effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
SECTION 22. No Third-Party Beneficiaries. This
Agreement does not, and is not intended to, create any
third-party beneficiary or otherwise confer any rights,
privileges, claims or remedies upon any person other
than the parties and their respective successors and
permitted assigns.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be executed by their officers
designated below on the day and year first above
written.
ABERDEEN INCOME CREDIT STRATEGIES FUND
By: ___/s/Xxxxxxxx Takian__________________
Name: Xxxxxxxx Xxxxxx
Title: Trustee and Chief Executive Officer
ADVISER:
ABERDEEN ASSET MANAGERS LIMITED
By: /s/ Xxxxxx Xxxxxx 7
Name: Xxxxxx Xxxxxx
Title: Authorised Signatory 8
SUB-ADVISORY AGREEMENT
THIS AGREEMENT is made and entered into as of the 1st
day of December, 2017 ("Effective Date"), by and
among ABERDEEN INCOME CREDIT STRATEGIES FUND
(formerly, Avenue Income Credit Strategies Fund) (the
"Fund"), a Delaware statutory trust, ABERDEEN ASSET
MANAGERS LIMITED, a Scottish corporation (the
"Adviser") registered under the Investment Advisers Act
of 1940, as amended (the "Advisers Act"), and
ABERDEEN ASSET MANAGEMENT INC. (the "Sub-
Adviser"), a Delaware corporation and also registered
under the Advisers Act.
W I T N E S S E T H:
WHEREAS, the Fund is registered with the U.S.
Securities and Exchange Commission (the "SEC") as a
closed-end management investment company under
the Investment Company Act of 1940, as amended (the
"1940 Act");
WHEREAS, the Adviser has, pursuant to an Investment
Advisory Agreement with the Fund dated as of the 1st
day of December, 2017, as amended, (the "Advisory
Agreement"), been retained to act as investment
manager of the Fund;
WHEREAS, the Sub-Adviser represents that it is willing
and possesses legal authority to render such services
subject to the terms and conditions set forth in this
Agreement;
WHEREAS, the Fund and the Adviser each represent
that the Advisory Agreement permits the Adviser to, at
its expense, employ, consult, or associate with such
person or persons as it believes necessary to assist it in
carrying out its obligations under the Advisory
Agreement, subject to the requirements of the 1940
Act;
WHEREAS, the Adviser desires to retain the Sub-Adviser
to assist it in the provision of a continuous investment
program, and the Sub-Adviser is willing to render such
services subject to the terms and conditions set forth in
this Sub-Advisory Agreement;
NOW, THEREFORE, the parties do mutually agree and
promise as follows with respect to the Fund:
1. Appointment as Sub-Adviser. The Adviser hereby
appoints the Sub-Adviser to act as sub-adviser to the
Fund subject to the supervision of the Adviser and the
Board of Trustees of the Fund and subject to the terms
of this Agreement; and the Sub-Adviser hereby
accepts such appointment. In such capacity, the Sub-
Adviser shall be responsible for assistance with the
investment management of the Fund's Assets. It is
recognized that the Sub-Adviser and certain of its
affiliates now act, and that from time to time hereafter
may act, as investment adviser to one or more other
investment companies and to fiduciary or other
managed accounts and that the Adviser and the Fund
cannot object to such activities. 9
2. Duties of Sub-Adviser.
(a) Sub-Advisory Services. The Sub-Adviser is hereby
authorized and directed and hereby agrees, subject to
the stated investment objective, policies, limitations
and restrictions of the Fund, as set forth in the Fund's
prospectus and statement of additional information as
currently in effect and as supplemented or amended
from time to time (collectively referred to hereinafter
as the "Registration Statement") and shareholder
reports and subject to the directions of the Adviser and
the Fund's Board of Trustees, to monitor on a
continuous basis the performance of the Fund's assets
and to assist the Adviser in conducting a continuous
program of investment, evaluation and, if appropriate,
sale and reinvestment of the Fund's assets. The
Adviser agrees to provide the Sub-Adviser with such
assistance as may be reasonably requested by the Sub-
Adviser in connection with the Sub-Adviser's
activities under this Agreement, including, without
limitation, providing information concerning the
Fund, its funds available, or to become available, for
investment and generally as to the conditions of the
Fund or the Fund's affairs.
(b) Compliance with Applicable Laws, Governing
Documents and Fund Compliance Procedures. In the
performance of its services under this Agreement, the
Sub-Adviser shall act in conformity with: (i) the
Fund's Registration Statement and investment
objective, policies, limitations and restrictions; (ii) the
Fund's Amended and Restated Declaration of Trust
and By-Laws as currently in effect and, as soon as
practical after the Fund or the Adviser notifies the
Sub-Adviser thereof, as supplemented, amended
and/or restated from time to time (referred to
hereinafter as the "Declaration" and "By-Laws,"
respectively); (iii) the policies and procedures for
compliance by the Fund with the Federal Securities
Laws (as that term is defined in Rule 38a-1 under the
0000 Xxx) provided to the Sub-Adviser (together, the
"Fund Compliance Procedures"); and (iv) with the
instructions and directions received in writing from
the Adviser or the Trustees of the Fund. The Sub-
Adviser in performing its services under this
Agreement will conform to, and comply with, the
requirements of the 1940 Act, the Internal Revenue
Code of 1986, as amended (the "Code"), and all other
applicable federal and state laws and regulations.
Without limiting the preceding sentence, the Adviser
promptly shall notify the Sub-Adviser as to any act or
omission of the Sub-Adviser hereunder that the
Adviser reasonably deems to constitute or to be the
basis of any noncompliance or nonconformance with
any of the Fund's Declaration and By-Laws, the
Registration Statement and Fund Compliance
Procedures, the instructions and directions received in
writing from the Adviser or the Trustees of the Fund
or the 1940 Act, the Code, and all other applicable
federal and state laws and regulations.
Notwithstanding the foregoing, the Adviser shall
remain responsible for ensuring the Fund's overall
compliance with the 1940 Act, the Code and all other
applicable federal and state laws and regulations and
the Sub-Adviser is only obligated to comply with this
subsection (b) with respect to the investment
management services it provides. The Adviser will
promptly provide the Sub-Adviser with a copy of the
minutes of the meetings or resolutions of the Board of
Trustees of the Fund to the extent they may affect the
Fund or the services of the Sub-Adviser, copies of any
financial statements or reports made by the Fund to its
shareholders, and any further materials or information
which the Sub-Adviser may reasonably request to
enable it to perform its functions under this
Agreement. 10
Quarterly and annual tax compliance tests are performed to ensure that the
Fund is in compliance with Subchapter M and Section 817(h) of the Code. In
connection with such compliance tests, the Adviser shall inform the Sub-
Adviser at least ten (10) business days prior to a calendar quarter end if the
Fund's assets are out of compliance with the diversification requirements
under either Subchapter M or Section 817(h). If the Adviser notifies the Sub-
Adviser that the Fund's assets are not in compliance with such requirements
noted above, the Sub-Adviser will take prompt action to assist the Adviser
with bringing the Fund back into compliance within the time permitted under
the Code thereunder.
The Adviser will provide the Sub-Adviser with reasonable advance notice of
any change in the Fund's investment objectives, policies, limitations and
restrictions, and the Sub-Adviser shall, in the performance of its duties and
obligations under this Agreement, manage the Fund's assets consistent with
such changes, as soon as practical after the Fund or the Adviser notifies the
Sub-Adviser thereof and provided that the Sub-Adviser has received prompt
notice of the effectiveness of such changes from the Fund or the Adviser. In
addition to such notice, the Adviser shall provide to the Sub-Adviser a copy of
the document(s) reflecting such changes. The Adviser acknowledges that the
Fund will at all times be in compliance with all disclosure requirements under
all applicable federal and state laws and regulations relating to the Fund,
including, without limitation, the 1940 Act, and the rules and regulations
thereunder, and that the Sub-Adviser shall have no liability in connection
therewith, except as to the accuracy of material information furnished in
writing by the Sub-Adviser to the Fund or to the Adviser specifically for
inclusion in such materials. The Sub-Adviser hereby agrees to provide to the
Adviser in a timely manner such information relating to the Sub-Adviser and
its relationship to, and actions for, the Fund as may be required by the Fund
or the Adviser.
In order to assist the Fund and the Fund's Chief
Compliance Officer (the "Fund CCO") to satisfy the
requirements contained in Rule 38a-1 under the 1940
Act, the Sub-Adviser shall provide to the Fund CCO: (i)
direct access to the Sub-Adviser's chief compliance
officer (the "Sub-Adviser CCO"), as reasonably
requested by the Fund CCO; (ii) quarterly reports
confirming that the Sub-Adviser has complied with the
Fund Compliance Procedures in managing the Fund's
assets; and (iii) quarterly certifications that there were
no Material Compliance Matters (as that term is defined
by Rule 38a-1(e)(2)) that arose under the Fund
Compliance Procedures that related to the Sub-
Adviser's management of the Fund's assets. In addition,
the Sub-Adviser will provide sub-certifications, upon
request, with respect to Forms N-CSR and N-Q filings for
the Fund.
(c) Sub-Adviser Compliance Policies and Procedures.
The Sub-Adviser shall promptly provide the Fund
CCO with copies of: (i) the Sub-Adviser's policies
and procedures for compliance by the Sub-Adviser
with the Federal Securities Laws (together, the "Sub-
Adviser Compliance Procedures"), and (ii) any
material changes to the Sub-Adviser Compliance
Procedures. The Sub-Adviser shall cooperate fully
with the Fund CCO so as to facilitate the Fund CCO's
performance of the Fund CCO's responsibilities under
Rule 38a-1 to review, evaluate and report to the
Fund's Board of Trustees on the operation of the Sub-
Adviser Compliance Procedures, and shall promptly
report to the Fund CCO any Material Compliance
Matter arising under the Sub-Adviser Compliance
Procedures involving the Sub-Adviser's management
of the Fund's Assets. The Sub-Adviser shall provide
to the Fund CCO: (i) quarterly reports confirming the
Sub-Adviser's compliance with the Sub-Adviser
Compliance Procedures in managing the Fund's
assets, and (ii) certifications that there were no
Material Compliance Matters involving the Sub-
Adviser that arose under the Sub-Adviser Compliance
Procedures that affected the Fund's assets. At least
annually, the Sub-Adviser shall provide a certification
to the Fund 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 Sub-Adviser with the Federal
Securities Laws.
(d) Voting of Proxies. The Adviser may delegate to
the Sub-Adviser the Adviser's discretionary authority
to exercise voting rights with respect to the securities
11
and other investments in the Fund's assets and
authorizes the Sub-Adviser to delegate further such
discretionary authority to a designee identified in a
notice given to the Fund and the Adviser. The Sub-
Adviser, including without limitation its designee,
shall have the power to vote, either in person or by
proxy, all securities that have been so delegated, and
shall not be required to seek or take instructions from,
the Adviser or the Fund or take any action with
respect thereto. If both the Sub-Adviser and another
entity managing assets of the Fund have invested the
Fund's assets in the same security, the Sub-Adviser
and such other entity will each have the power to vote
its pro rata share of the Fund's security.
The Sub-Adviser has established a written procedure for proxy voting in
compliance with current applicable rules and regulations, including but not
limited to Rule 30b1-4 under the 1940 Act. The Sub-Adviser has provided the
Adviser a copy of such procedure and has established a process for the
timely distribution of the Sub-Adviser's voting record with respect to the
Fund's securities and other information necessary for the Fund to complete
information Form N-PX under the 1940 Act, Form N-Q under the 1940 Act,
and Form N-CSR under the 1940 Act, respectively.
(e) Agent. Subject to any other written instructions of
the Adviser or the Fund, the Sub-Adviser is hereby
appointed the Adviser's and the Fund's agent and
attorney-in-fact for the limited purposes of executing
account documentation, agreements, contracts and
other documents as the Sub-Adviser shall be requested
by brokers, dealers, counterparties and other persons
in connection with its management of the Fund's
assets. The Sub-Adviser agrees to provide the Adviser
and the Fund with copies of any such agreements
executed on behalf of the Adviser or the Fund.
(f) Brokerage. The Sub-Adviser is authorized, subject
to the supervision of the Adviser and the plenary
authority of the Fund's Board of Trustees, to establish
and maintain accounts on behalf of the Fund with, and
place orders for the investment and reinvestment,
including without limitation purchase and sale of the
Fund's assets that the Adviser and Sub-Adviser
mutually agree shall be traded by the Sub-Adviser
with or through, such persons, brokers (including, to
the extent permitted by applicable law, any broker
affiliated with the Sub-Adviser) or dealers
(collectively "Brokers") as the Sub-Adviser may elect
and negotiate commissions to be paid on such
transactions. The Sub-Adviser, however, is not
required to obtain the consent of the Adviser or the
Fund's Board of Trustees prior to establishing any
such brokerage account. The Sub-Adviser shall place
all orders for the purchase and sale of portfolio
investments that are agreed to with the Adviser to be
assigned to the Sub-Adviser for trading for the Fund's
account with Brokers selected by the Sub-Adviser. In
the selection of such Brokers and the placing of such
orders, the Sub-Adviser shall seek to obtain for the
Fund the most favorable price and execution
available, except to the extent it may be permitted to
pay higher brokerage commissions for brokerage and
research services, as provided below. In using its
reasonable efforts to obtain for the Fund the most
favorable price and execution available, the Sub-
Adviser, bearing in mind the best interests of the Fund
at all times, shall consider all factors it deems
relevant, including price, the size of the transaction,
the breadth and nature of the market for the security,
the difficulty of the execution, the amount of the
commission, if any, the timing of the transaction,
market prices and trends, the reputation, experience
and financial stability of the Broker involved, and the
quality of service rendered by the Broker in other
transactions. Notwithstanding the foregoing, neither
the Fund nor the Adviser shall instruct the Sub-
Adviser to place orders with any particular Broker(s)
with respect to any trades being 12
executed by the Sub-Adviser. Subject to such policies
as the Trustees may determine, or as may be mutually
agreed to by the Adviser and the Sub-Adviser, the
Sub-Adviser is authorized but not obligated to cause,
and shall not be deemed to have acted unlawfully or to
have breached any duty created by this Agreement or
otherwise solely by reason of its having caused, the
Fund to pay a Broker that provides brokerage and
research services (within the meaning of Section 28(e)
of the Securities Exchange Act of 1934 (the "1934
Act")) to the Sub-Adviser an amount of commission
for effecting an investment transaction that is in
excess of the amount of commission that another
Broker would have charged for effecting that
transaction if, but only if, the Sub-Adviser determines
in good faith that such commission was reasonable in
relation to the value of the brokerage and research
services provided by such Broker viewed in terms of
either that particular transaction or the overall
responsibility of the Sub-Adviser with respect to the
accounts as to which it exercises investment discretion
and that the total commissions paid by the Fund with
respect to Fund's assets will be reasonable in relation
to the benefits to the Fund in the long term.
It is recognized that the services provided by such Brokers may be useful to
the Sub-Adviser in connection with the Sub-Adviser's services to other
clients. On occasions when the Sub-Adviser deems the purchase or sale of a
security to be in the best interests of the Fund with respect to the Fund's
assets as well as other clients of the Sub-Adviser, the Sub-Adviser, to the
extent permitted by applicable laws and regulations, and subject to any
applicable procedures adopted by the Board of Trustees, may, but shall be
under no obligation to, aggregate the securities to be sold or purchased in
order to obtain the most favorable price or lower brokerage commissions
and efficient execution. In such event, allocation of securities so sold or
purchased, as well as the expenses incurred in the transaction, will be made
by the Sub-Adviser in the manner the Sub-Adviser considers to be the most
equitable and consistent with its fiduciary obligations to each Fund and to
such other clients. It is recognized that in some cases, this procedure may
adversely affect the price paid or received by the Fund or the size of the
position obtainable for, or disposed of by, the Fund with respect to the
Fund's assets.
(g) Securities Transactions. The Sub-Adviser and any
affiliated person of the Sub-Adviser will not purchase
securities or other instruments from or sell securities
or other instruments to the Fund; provided, however,
the Sub-Adviser or any affiliated person of the Sub-
Adviser may purchase securities or other instruments
from or sell securities or other instruments to the Fund
if such transaction is permissible under applicable
laws and regulations, including, without limitation,
the 1940 Act and the Advisers Act and the rules and
regulations promulgated thereunder.
The Sub-Adviser acknowledges that the Adviser and
the Fund may rely on Rule 17a-7, Rule 17a-10, Rule
10f-3, Rule 12d3-1 and Rule 17e-1 under the 1940
Act, and the Sub-Adviser hereby agrees that it shall
not consult with any other subadviser to the Fund (if
any) with respect to transactions in securities for the
Fund's assets.
The Sub-Adviser, on its own behalf and with respect to its Access Persons (as
defined in subsection (e) of Rule 17j-1 under the 1940 Act), agrees to observe
and comply with Rule 17j-1 and its Code of Ethics (which shall comply in all
material respects with Rule 17j-1), as the same may be amended from time
to time. Every quarter, the Sub-Adviser will comply with the reporting
requirements of Rule 17j-1, which may include either (i) certifying to the
Adviser that the Sub-Adviser and its Access Persons have complied with the
Sub-Adviser's Code of Ethics with respect to the Fund's assets or (ii)
identifying any violations which have occurred with respect to the Fund's
assets. The Sub-Adviser will have also submitted its Code of Ethics for its
initial approval by the Board of Trustees no later than the date of execution
of this agreement and subsequently within six months of any material
change thereto.
(h) Books and Records. The Sub-Adviser shall
maintain separate detailed records as are required by
applicable laws and regulations of all matters
hereunder pertaining to the Fund's assets (the "Fund's
Records"), including, without limitation, brokerage
and other records of all securities transactions. In
compliance with the requirements of Rule 31a-3 under
the 1940 Act, the Sub-Adviser hereby agrees that all
13
records which it maintains for the Fund are the
property of the Fund, agrees to preserve for the
periods prescribed by Rule 31a-2 under the 1940 Act
any records that it maintains for the Fund and that are
required to be maintained by Rule 31a-1 under the
1940 Act, and further agrees to surrender promptly to
the Fund any records which it maintains for the Fund
upon request by the Fund (except that the Sub-
Adviser, at its own expense, is entitled to make and
keep a copy of the Fund's Records for its internal
files). The Fund's Records shall be available to the
Adviser or the Fund at any time upon reasonable
request during normal business hours and shall be
available for telecopying promptly to the Adviser
during any day that the Fund is open for business as
set forth in the Registration Statement.
(i) Information Concerning Fund's assets and Sub-
Adviser. From time to time as the Adviser or the Fund
reasonably may request in good faith, the Sub-Adviser
will furnish the requesting party reports on portfolio
transactions and reports on its management services
provided with respect to the Fund's assets, all in such
reasonable detail as the parties may reasonably agree
in good faith. The Sub-Adviser will also inform the
Adviser prior to any such change of material changes
in portfolio managers responsible for Fund's assets,
any changes in the ownership or management of the
Sub-Adviser, or of material changes in the control of
the Sub-Adviser. Upon the Fund's or the Adviser's
reasonable request, the Sub-Adviser will make
available its officers and employees to meet with the
Fund's Board of Trustees to review its management
services provided with respect to the Fund via
telephone on a quarterly basis and on a less frequent
basis as agreed upon by the parties in person.
Subject to the other provisions of this Agreement, the Sub-Adviser will also
provide such information or perform such additional acts with respect to the
Fund's assets as are reasonably required for the Fund or the Adviser to
comply with their respective obligations under applicable laws, including
without limitation, the Code, the 1940 Act, the Advisers Act, and the
Securities Act of 1933, as amended, and any rule or regulation thereunder.
(j) Custody Arrangements. The Fund or the Adviser
shall notify the Sub-Adviser of the identities of its
custodian banks and the custody arrangements
therewith with respect to the Fund's assets and shall
give the Sub-Adviser written notice of any changes in
such custodian banks or custody arrangements. The
Sub-Adviser shall on each business day provide the
Adviser and the Fund's custodian such information as
the Adviser and the Fund's custodian may reasonably
request in good faith relating to all transactions
concerning the Fund's assets. The Fund shall instruct
its custodian banks to (A) carry out all investment
instructions as may be directed by the Sub-Adviser
with respect to the Fund's assets (which instructions
may be orally given if confirmed in writing); and (B)
provide the Sub-Adviser with all operational
information necessary for the Sub-Adviser to trade the
Fund's assets on behalf of the Fund. The Sub-Adviser
shall have no liability for the acts or omissions of the
authorized custodian(s), unless such act or omission is
required by and taken in reliance upon instructions
given to the authorized custodian(s) by a
representative of the Sub-Adviser properly authorized
(pursuant to written instruction by the Adviser) to give
such instructions.
(k) Valuation of Fund's assets. The Sub-Adviser
agrees to monitor the Fund's assets and to notify the
Adviser or its designee on any day that the Sub-
Adviser determines that a significant event has
occurred with respect to one or more securities held
by the Fund. As requested by the Adviser or the
Fund's Valuation Committee, the 14
Sub-Adviser hereby agrees to provide additional
assistance to the Valuation Committee of the Fund,
the Adviser and the Fund's pricing agents in valuing
Fund's assets held in the portfolio. Such assistance
may include fair value pricing of portfolio securities,
as requested by the Adviser. The Sub-Adviser agrees
that it will act, at all times, in accordance with the
Fund's Valuation Procedures, and will provide such
certifications or sub-certifications relating to its
compliance with the Fund's Valuation Procedures as
reasonably may be requested, from time to time, by
the Adviser or the Fund. The Sub-Adviser agrees that
it will regularly reconcile its portfolio holdings list for
the Fund against the portfolio holdings list provided
by the Fund's service providers and alert the Adviser
in the event that the Sub-Adviser's list does not match
the list provided by the Fund's service providers.
The Sub-Adviser also will provide such information
or perform such additional acts as are customarily
performed by a Sub-Adviser and may be required for
a Fund or the Adviser to comply with their respective
obligations under applicable federal securities laws,
including, without limitation, the 1940 Act, the
Advisers Act, the 1934 Act, the Securities Act, and
any rule or regulation thereunder.
3. Independent Contractor. In the performance of its
services hereunder, the Sub-Adviser is and shall be an
independent contractor and unless otherwise expressly
provided herein or otherwise authorized in writing,
shall have no authority to act for or represent the
Fund, the Fund or the Adviser in any way or
otherwise be deemed an agent of the Fund, the Fund
or the Adviser.
4. Expenses. During the term of this Agreement, the
Sub-Adviser will pay all expenses and overhead
incurred by it in connection with its activities under
this Agreement. The Sub-Adviser shall, at its sole
expense, employ or associate itself with such persons
as it believes to be particularly fitted to assist it in the
execution of its duties under this Agreement. The Sub-
Adviser shall not be responsible for the Fund's or the
Adviser's expenses, which shall include, but not be
limited to, the cost of securities, commodities and
other investments (including brokerage commissions
and other transaction charges, if any) purchased for
the Fund and any losses incurred in connection
therewith, expenses of holding or carrying Fund's
assets, including, without limitation, expenses of
dividends on stock borrowed to cover a short sale and
interest, fees or other charges incurred in connection
with leverage and related borrowings with respect to
the Fund's assets, organizational and offering
expenses (which include, but are not limited to, out-
of-pocket expenses, but not overhead or employee
costs of the Sub-Adviser); expenses for legal,
accounting and auditing services; taxes and
governmental fees; dues and expenses incurred in
connection with membership in investment company
organizations; costs of printing and distributing
shareholder reports, proxy materials, Registration
Statements, stock certificates and distribution of
dividends; charges of the Fund's custodians and sub-
custodians, administrators and sub-administrators,
registrars, transfer agents, dividend disbursing agents
and dividend reinvestment plan agents; payment for
portfolio pricing services to a pricing agent, if any;
registration and filing fees of the SEC; expenses of
registering or qualifying securities of the Fund for sale
in the various states; freight and other charges in
connection with the shipment of the Fund's portfolio
securities; fees and expenses of non-interested
Trustees; salaries of shareholder relations personnel;
costs of shareholders meetings; insurance; interest;
brokerage costs; and litigation and other extraordinary
or non-recurring expenses of the Fund. The Fund or
the Adviser, as the case may be, shall reimburse the
Sub-Adviser for any expenses of the Fund or 15
the Adviser as may be reasonably incurred by such
Sub-Adviser on behalf of the Fund or the Adviser, it
being understood that the Fund will not reimburse the
Sub-Adviser for any expenses for which the Fund
would not be responsible under the Advisory
Agreement. The Sub-Adviser shall keep and supply to
the Fund and the Adviser reasonable records of all
such expenses.
5. Compensation. For services provided pursuant to
this Agreement, the Sub-Adviser is entitled to the fee
listed for the Fund on Exhibit A hereto. In any month
in which fees are to be paid to the Sub-Adviser, such
fees will be paid by the Adviser no later than the
twentieth (20th) business day following the end of the
month.
6. Representations and Warranties of Sub-Adviser.
The Sub-Adviser represents and warrants to the
Adviser and the Fund as follows:
(a) The Sub-Adviser is registered as an investment
adviser under the Advisers Act;
(b) The Sub-Adviser is registered as a Commodity
Trading Advisor under the Commodity Exchange Act,
as amended (the "CEA"), with the Commodity
Futures Trading Commission (the "CFTC"), or is not
required to file such registration;
(c) The Sub-Adviser is a corporation duly organized
and operating under the laws of the State of Delaware
with the power to own and possess its assets and carry
on its business as it is now being conducted and as
proposed to be conducted hereunder;
(d) The execution, delivery and performance by the
Sub-Adviser of this Agreement are within the Sub-
Adviser's powers and have been duly authorized by
all necessary actions of its directors or shareholders,
and no action by, or in respect of, or filing with, any
governmental body, agency or official is required on
the part of the Sub-Adviser for execution, delivery and
performance by the Sub-Adviser of this Agreement,
and the execution, delivery and performance by the
Sub-Adviser of this Agreement do not contravene or
constitute a violation of, or a material default under,
(i) any provision of applicable law, rule or regulation,
(ii) the Sub-Adviser's governing instruments, or (iii)
any agreement, judgment, injunction, order, decree or
other instrument binding upon the Sub-Adviser; and
(e) The Form ADV of the Sub-Adviser provided to the
Adviser and the Fund is a true and complete copy of
the form, including that part or parts of the Form ADV
filed with the SEC, that part or parts maintained in the
records of the Adviser, and/or that part or parts
provided or offered to clients, in each case as required
under the Advisers Act and rules thereunder, and the
information contained therein is accurate and
complete in all material respects and does not omit to
state any material fact necessary in order to make the
statements made, in light of the circumstances under
which they were made, not misleading.
7. Representations and Warranties of Adviser. The
Adviser represents and warrants to the Sub-Adviser as
follows:
(a) The Adviser is registered as an investment adviser
under the Advisers Act; 16
(b) The Adviser is registered as a Commodity Trading
Advisor under the Commodity Exchange Act, as
amended (the "CEA"), with the Commodity Futures
Trading Commission (the "CFTC"), or is not required
to file such registration;
(c) The Adviser is a company duly organized and
validly existing under the laws of Scotland with the
power to own and possess its assets and carry on its
business as it is now being conducted and as proposed
to be conducted hereunder, is regulated by the
Financial Conduct Authority of the United Kingdom,
and is engaged in the business of rendering investment
advisory services to investment companies and other
institutional clients;
(d) The execution, delivery and performance by the
Adviser of this Agreement are within the Adviser's
powers and have been duly authorized by all
necessary action on the part of its directors or
shareholders, and no action by, or in respect of, or
filing with, any governmental body, agency or official
is required on the part of the Adviser for the
execution, delivery and performance by the Adviser of
this Agreement, and the execution, delivery and
performance by the Adviser of this Agreement do not
contravene or constitute a violation of, or a material
default under, (i) any provision of applicable law, rule
or regulation, (ii) the Adviser's governing
instruments, or (iii) any agreement, judgment,
injunction, order, decree or other instrument binding
upon the Adviser;
(e) The Form ADV of the Adviser provided to the
Sub-Adviser and the Fund is a true and complete copy
of the form, including that part or parts of the Form
ADV filed with the SEC, that part or parts maintained
in the records of the Adviser, and/or that part or parts
provided or offered to clients, in each case as required
under the Advisers Act and rules thereunder, and the
information contained therein is accurate and
complete in all material respects and does not omit to
state any material fact necessary in order to make the
statements made, in light of the circumstances under
which they were made, not misleading;
(f) The Adviser acknowledges that it received a copy
of the Sub-Adviser's Form ADV prior to the
execution of this Agreement; and
(g) The Adviser and the Fund have duly entered into
the Advisory Agreement pursuant to which the
Adviser may, at its expense, employ, consult, or
associate with itself such person or persons as it
believes necessary to assist it in carrying out its
obligations under the Advisory Agreement.
8. Representations and Warranties of the Fund. The
Fund represents and warrants to the Adviser and the
Sub-Adviser as follows:
(a) The Fund is a statutory trust duly formed and
validly existing under the laws of the State of
Delaware with the power to own and possess its assets
and carry on its business as it is now being conducted
and as proposed to be conducted hereunder;
(b) The Fund is registered as an investment company
under the 1940 Act and has elected to qualify and has
qualified as a regulated investment company under the
Code, and the Fund's shares are registered under the
Securities Act; 17
(c) The execution, delivery and performance by the
Fund of this Agreement are within the Fund's powers
and have been duly authorized by all necessary action
on the part of the Fund and its Board of Trustees, and
no action by, or in respect of, or filing with, any
governmental body, agency or official is required on
the part of the Fund for the execution, delivery and
performance by the Adviser of this Agreement, and
the execution, delivery and performance by the Fund
of this Agreement do not contravene or constitute a
default under (i) any provision of applicable law, rule
or regulation, (ii) the Fund's governing instruments,
or (iii) any agreement, judgment, injunction, order,
decree or other instrument binding upon the Fund; and
(d) The Fund acknowledges that it received a copy of
the Sub-Adviser's Form ADV prior to the execution
of this Agreement.
9. Survival of Representations and Warranties; Duty
to Update Information. All representations and
warranties made by the Sub-Adviser, the Adviser and
the Fund pursuant to the recitals above and Sections 6,
7 and 8, respectively, shall survive for the duration of
this Agreement and the parties hereto shall promptly
notify each other in writing upon becoming aware that
any of the foregoing representations and warranties
are no longer true or accurate in all material respects.
10. Liability.
The Sub-Adviser shall exercise its best judgment in
rendering its services in accordance with the terms of
this Agreement, but otherwise, in the absence of
willful misfeasance, bad faith or gross negligence on
the part of the Sub-Adviser or a reckless disregard of
its duties hereunder, the Sub-Adviser, each of its
affiliates and all respective partners, officers, directors
and employees ("Affiliates") and each person, if any,
who within the meaning of the Securities Act controls
the Sub-Adviser ("Controlling Persons") other than
the Adviser, if any, shall not be subject to any
expenses or liability to the Adviser, any other
subadviser to the Fund or the Fund or any of its
shareholders, in connection with the matters to which
this Agreement relates, including without limitation
for any losses that may be sustained in the purchase,
holding or sale of Funds assets, except a loss resulting
from a breach of fiduciary duty with respect to receipt
of compensation for services (in which case any
award of damages shall be limited to the period and
the amount set forth in Section 36(b)(3) of the 1940
Act). The Adviser shall exercise its best judgment in
rendering its obligations in accordance with the terms
of this Agreement, but otherwise (except as set forth
in Section 10(c) below), in the absence of willful
misfeasance, bad faith or gross negligence on the part
of the Adviser or a reckless disregard of its duties
hereunder, the Adviser, any of its Affiliates and each
of the Adviser's Controlling Persons, if any, shall not
be subject to any liability to the Sub-Adviser, for any
act or omission in the case of, or connected with,
rendering services hereunder or for any losses that
may be sustained in the purchase, holding or sale of
the Fund's assets. Notwithstanding the foregoing,
nothing herein shall relieve the Adviser and the Sub-
Adviser from any of their obligations under applicable
law, including, without limitation, the federal and
state securities laws and the CEA.
11. Duration and Termination.
(a) Duration. Unless sooner terminated, this
Agreement shall continue for an initial two year
period from the Effective Date, and thereafter shall
continue 18
automatically for successive annual periods, provided
that such continuance is specifically approved at least
annually by the Fund's Board of Trustees or a vote of
the lesser of (a) 67% of the shares of the Fund
represented at a meeting if holders of more than 50%
of the outstanding shares of the Fund are present in
person or by proxy or (b) more than 50% of the
outstanding shares of the Fund; provided further that
in either event its continuance also is approved by a
majority of the Fund's Trustees who are not
"interested persons" (as defined in the 0000 Xxx) of
any party to this Agreement, by vote cast in person at
a meeting called for the purpose of voting on such
approval.
(b) Termination. Notwithstanding whatever may be
provided herein to the contrary, this Agreement may
be terminated at any time with respect to the Fund,
without payment of any penalty:
(i) By vote of a majority of the Fund's Board of
Trustees, or by "vote of a majority of the outstanding
voting securities" of the Fund (as defined in the 1940
Act), or by the Adviser, in each case, upon written
notice to the Sub-Adviser;
(ii) By any party hereto immediately upon written
notice to the other parties in the event of a breach of
any provision of this Agreement by either of the other
parties; or
(iii) By the Sub-Adviser upon 90 days' written notice
to the Adviser and the Fund.
This Agreement shall not be assigned (as such term is
defined in the 0000 Xxx) and shall terminate
automatically in the event of its assignment or upon the
termination of the Advisory Agreement.
12. Duties of the Adviser. The Adviser shall continue
to have responsibility for all services to be provided to
the Fund pursuant to the Advisory Agreement and
shall oversee and review the Sub-Adviser's
performance of its duties under this Agreement.
Nothing contained in this Agreement shall obligate the
Adviser to provide any funding or other support for
the purpose of directly or indirectly promoting
investments in the Fund.
13. Amendment. This Agreement may be amended by
mutual consent of the parties, provided that the terms
of any material amendment shall be approved by: (a)
the Fund's Board of Trustees or by a vote of a
majority of the outstanding voting securities of the
Funds (as required by the 1940 Act), and (b) the vote
of a majority of those Trustees of the Fund who are
not "interested persons" of any party to this
Agreement cast in person at a meeting called for the
purpose of voting on such approval, if such approval
is required by applicable law.
14. Confidentiality. Subject to the duties of the
Adviser, the Fund and the Sub-Adviser to comply
with applicable law, including any demand of any
regulatory or taxing authority having jurisdiction, the
parties hereto shall treat as confidential and shall not
disclose any and all information pertaining to the
Fund and the actions of the Sub-Adviser, the Adviser
and the Fund in respect thereof; except to the extent:
(a) Authorized. The Adviser or the Fund has
authorized such disclosure; 19
(b) Court or Regulatory Authority. Disclosure of such
information is expressly required or requested by a
court or other tribunal of competent jurisdiction or
applicable federal or state regulatory authorities;
(c) Publicly Known Without Breach. Such
information becomes known to the general public
without a breach of this Agreement or a similar
confidential disclosure agreement regarding such
information;
(d) Already Known. Such information already was
known by the party prior to the date hereof;
(e) Received From Third Party. Such information was
or is hereafter rightfully received by the party from a
third party (expressly excluding the Fund's custodian,
prime broker and administrator) without restriction on
its disclosure and without breach of this Agreement or
of a similar confidential disclosure agreement
regarding them; or
(f) Independently Developed. The party independently
developed such information.
15. Notice. Any notice that is required to be given by
the parties to each other under the terms of this
Agreement shall be in writing, delivered, or mailed
postpaid to the other parties, or transmitted by
facsimile with acknowledgment of receipt, to the
parties at the following addresses or facsimile
numbers, which may from time to time be changed by
the parties by notice to the other party:
(a) If to the Subadviser:
Aberdeen Asset Management Inc.
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Legal Department
Email: xxxxx.xx@xxxxxxxx-xxxxx.xxx
Facsimile: (000) 000-0000
(b) If to the Adviser:
Aberdeen Asset Managers Limited
Bow Xxxxx Xxxxx
0 Xxxxx Xxxxxx
Xxxxxx, Xxxxxx Xxxxxxx
XX0X 0XX
Attention: Legal Department
Email: xxxxx.xx@xxxxxxxx-xxxxx.xxx
Facsimile: 00-000-000-0000 20
(c) If to the Fund:
Aberdeen Income Credit Strategies Fund
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: President of the Funds
Facsimile: (000) 000-0000
16. Jurisdiction. This Agreement shall be governed by
and construed in accordance with substantive laws of
the State of Delaware without reference to choice of
law principles thereof and in accordance with the
1940 Act. In the case of any conflict, the 1940 Act
shall prevail.
17. Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be
deemed an original, all of which shall together
constitute one and the same instrument.
18. Certain Definitions. For the purposes of this
Agreement and except as otherwise provided herein,
"interested person," "affiliated person," and
"assignment" shall have their respective meanings as
set forth in the 1940 Act, subject, however, to such
exemptions as may be granted by the SEC.
19. Captions. The captions herein are included for
convenience of reference only and shall be ignored in
the construction or interpretation hereof.
20. Severability. If any provision of this Agreement
shall be held or made invalid by a court decision or
applicable law, the remainder of the Agreement shall
not be affected adversely and shall remain in full force
and effect.
21. Entire Agreement. This Agreement, together with
all exhibits, attachments and appendices, contains the
entire understanding and agreement of the parties with
respect to the subject matter hereof. 21
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement on the day and year first
written above.
ABERDEEN INCOME CREDIT STRATEGIES FUND
By: ___/s/Xxxxxxxx Takian__________________
Name: Xxxxxxxx Xxxxxx
Title: Trustee and Chief Executive Officer
ADVISER:
ABERDEEN ASSET MANAGERS LIMITED
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Authorised Signatory
SUBADVISER:
ABERDEEN ASSET MANAGEMENT INC.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
EXHIBIT A
SUBADVISORY AGREEMENT AMONG
ABERDEEN INCOME CREDIT STRATEGIES FUND,
ABERDEEN ASSET MANAGERS LIMITED
AND ABERDEEN ASSET MANAGEMENT INC.
T
h
e
S
u
b
-
A
d
v
i
s
e
r
i
s
e
n
t
i
t
l
e
d
t
o
t
h
e
p
e
r
c
e
n
t
a
g
e
o
f
t
h
e
a
d
v
i
s
o
r
y
f
e
e
r
e
c
e
i
v
e
d
a
f
t
e
r
f
e
e
w
a
i
v
e
r
s
a
n
d
e
x
p
e
n
s
e
r
e
i
m
b
u
r
s
e
m
e
n
t
s
,
i
f
a
n
y
,
b
y
t
h
e
A
d
v
i
s
e
r
f
o
r
t
h
e
F
u
n
d
a
s
d
e
t
a
i
l
e
d
b
e
l
o
w
:
P
e
r
c
e
n
t
o
f
A
d
v
i
s
o
r
y
F
e
e
s
4
0
%
o
f
f
e
e
s
r
e
c
e
i
v
e
d
b
y
t
h
e
A
d
v
i
s
e
r
Information Classification: Limited Access
Information Classification: Limited Access
