INVESTMENT SUB-ADVISORY AGREEMENT between
INVESTMENT SUB-ADVISORY AGREEMENT
between
X. X. XXXXXX PRIVATE INVESTMENTS INC.
and
PACIFIC INVESTMENT MANAGEMENT COMPANY LLC
This INVESTMENT SUB-ADVISORY AGREEMENT (“Agreement”), effective as of [ ], 2023, between X.X. Xxxxxx Private Investments Inc. (the “Adviser”), a corporation organized and existing under the laws of the State of Delaware, and Pacific Investment Management Company LLC (the “Subadviser” or “PIMCO”), a limited liability company organized and existing under the laws of the State of Delaware.
WHEREAS, the Adviser has entered into an Investment Advisory Agreement dated as of [ ], 2023, (the “Advisory Agreement”) with Six Circles Credit Opportunities Fund (Cayman) Ltd., a Cayman Islands exempted company (the “Company”);
WHEREAS, the Company is a wholly-owned subsidiary of Six Circles Credit Opportunities Fund (the “Fund”), a series of Six Circles Trust, a Delaware statutory trust; (the “Trust”);
WHEREAS, the Trust is engaged in business as an open-end management investment company registered under the Investment Company Act of 1940, as amended (the “1940 Act”);
WHEREAS, the purpose of the Company is to facilitate the implementation of the Fund’s investment strategies, in particular with respect to investments in Regulation S securities;
WHEREAS, the Subadviser serves as an investment sub-adviser to the Fund pursuant to an investment sub-advisory agreement between the Subadviser and the Adviser dated June 22, 2018 (the “Fund Sub-Advisory Agreement”);
WHEREAS, the Subadviser is engaged principally in the business of rendering investment management services and is registered as an investment adviser under the Investment Advisers Act of 1940, as amended, (the “Advisers Act”);
WHEREAS, the Adviser represents that the Advisory Agreement permits the Adviser to delegate certain of its duties under the Advisory Agreement to other investment advisers subject to the requirements of applicable law; and
WHEREAS, the Adviser desires to retain the Subadviser in the provision of a continuous investment program for that portion of the assets of the Company which the Adviser may from time to time allocate to the Subadviser in accordance with the terms of this Agreement (the “Subadviser Assets”) and the Subadviser is willing to furnish such services (the “Investment Program”);
NOW, THEREFORE, in consideration of the premises and mutual promises herein set forth, the parties hereto agree as follows:
1. Appointment. The Adviser hereby retains the Subadviser to act as investment adviser for and to manage on a discretionary basis the Subadviser Assets for the period and on the terms set forth in this Agreement. The Subadviser accepts such appointment and agrees to render the services herein set forth. The Subadviser acknowledges and agrees that (i) the Adviser makes no commitment to allocate any
maximum or minimum portion of the Company’s assets to the Subadviser as the Subadviser Assets, (ii) at any time, upon written notice to the Subadviser, the Adviser may allocate all, none or any portion of the Company’s assets to the Subadviser, (iii) may reallocate any portion or all of the Subadviser Assets (a) to any other subadviser unaffiliated with the Adviser upon written notice to the Subadviser or (b) to itself or a subadviser affiliated with the Adviser upon 61 days’ written notice to the Subadviser (or such shorter period as may be agreed by the Subadviser after receipt of such notice) and (iv) subject to written notice to the Subadviser, and, as applicable, the written notice set forth in clause (iii)(b) of this paragraph 1, the Adviser retains authority to immediately assume direct responsibility for any function delegated to the Subadviser under this Agreement. The Adviser acknowledges that the Subadviser does not guarantee the future performance of the Subadviser Assets or any specific level of performance.
2. Duties of the Subadviser
A. Investment Subadvisory Services. Subject to the supervision of the Company’s Board of Directors (the “Board”) and the Adviser, the Subadviser shall manage the investments of the Subadviser Assets in accordance with (i) the Company’s Memorandum and Articles of Association, as currently in effect and as amended or supplemented from time to time (herein referred to as the “Memorandum and Articles”), (ii) the Fund’s investment objective, policies, and restrictions as provided in the Fund’s Prospectus and Statement of Additional Information, as currently in effect and as amended or supplemented from time to time (hereinafter referred to as the “Prospectus”), (iii) the portfolio guidelines agreed from time to time in writing by the Adviser and the Subadviser (the “Guidelines”), (iv) except as specifically set forth in the Guidelines, the requirements applicable to registered investment companies under applicable laws (including the 1940 Act) and (v) such other limitations as the Adviser may institute in writing and provide to Subadviser within a reasonable time prior to implementation. For the avoidance of doubt, the Subadviser agrees that it will manage the Subadviser Assets in accordance with the investment limitations and other restrictions under the 1940 Act as if the Subadviser Assets (together with the “Subadviser Assets,” with respect to the Fund, under the Fund Sub-Advisory Agreement) constituted a separate investment company registered under the 1940 Act. The Subadviser further agrees to manage the investments of the Subadviser Assets in accordance with Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”), as if the Subadviser Assets (together with the “Subadviser Assets,” with respect to the Fund, under the Fund Sub-Advisory Agreement) constituted a separate investment company registered under the 1940 Act, except as otherwise specifically set forth in the Guidelines. Without limiting the preceding obligations of the Subadviser, if the Adviser notifies the Subadviser that the Adviser has determined, in its sole discretion, that the Subadviser Assets are not in compliance with any of the Memorandum and Articles, the Trust’s Declaration of Trust and By-Laws, Prospectus, Guidelines, the 1940 Act or the Code, the Subadviser will immediately take action to bring the Subadviser Assets back into compliance; provided, however, the Subadviser’s action shall not, in and of itself, constitute an admission by the Subadviser that the Subadviser Assets are not in compliance with the Memorandum and Articles, the Trust’s Declaration of Trust and By-Laws, Prospectus, Guidelines, the 1940 Act or the Code. The Subadviser shall (a) make investment decisions for the Subadviser Assets and select securities for purchase or sale with respect to the Subadviser Assets; (b) place purchase and sale orders for portfolio transactions for the Subadviser Assets; and (c) employ professional portfolio managers and investment analysts whose duties include, without limitation, providing research services with respect to the Subadviser Assets. In providing these services, the Subadviser will conduct a program of investment, evaluation and, if appropriate, sale and reinvestment of the Subadviser Assets, including the amount to be held uninvested as cash or in cash equivalents selected by the Subadviser.
The Adviser shall make available to or furnish the Subadviser with copies of the Fund’s Prospectus and Statement of Additional Information, the Memorandum and Articles, the Trust’s Declaration of Trust and By-Laws, the Advisory Agreement, the Guidelines and any other limitations or guidelines instituted by the Adviser with regard to the Subadviser Assets, and any amendments thereto.
Upon notification by the Adviser of such amendments, the Subadviser shall immediately commence action if necessary to bring the Subadviser Assets into compliance.
The Subadviser shall have authority to instruct the Company’s custodian (the “Custodian”) to: (i) pay cash for securities and other property delivered to the Custodian for the Subadviser Assets, (ii) deliver or accept delivery of, upon receipt of payment or payment upon receipt of, securities, commodities or other property underlying any futures or options contracts, and other property purchased or sold in the Subadviser Assets, and (iii) deposit margin or collateral which shall include the transfer of money, securities or other property to the extent necessary to meet the obligations of the Subadviser Assets with respect to any investments made pursuant to this Agreement.
Subject to Section 2D (Brokerage) below, the Subadviser is authorized with respect to the Subadviser Assets to (i) enter into agreements and execute any documents (e.g., any derivatives documentation such as exchange traded and over-the-counter, as applicable) and take any other actions required to make investments pursuant to this Agreement, which shall include any market and/or industry standard documentation and the standard representations contained therein; (ii) acknowledge the receipt of brokers’ risk disclosure statements, electronic trading disclosure statements and similar disclosures.
The Subadviser shall not engage in securities lending transactions on behalf of the Subadviser Assets. If the Custodian enters into securities lending transactions on behalf of the Adviser, the Adviser or the custodian shall be responsible for ensuring that the securities or other assets in the Subadviser Assets are available for sale at all times. The Subadviser shall not be liable for any loss resulting from the sale by the Subadviser of a security that is not available in the Subadviser Assets for settlement as a result of such securities lending transactions.
In-Kind Securities that may be transferred into the Subadviser Assets shall be transferred in accordance with Appendix A, and Appendix A is hereby incorporated into this Agreement.
The Subadviser is authorized to effect cross transactions between the Subadviser Assets and other accounts managed by the Subadviser and its affiliates, provided that the Subadviser complies with the Fund’s procedures pursuant to Rule 17a-7 under the 1940 Act, or comparable Subadviser procedures approved by the Adviser.
The Subadviser may delegate trade execution and other support functions (but not portfolio management) to its affiliates and may share such information as necessary to accomplish these purposes. Additionally, the Subadviser will have the ability to delegate back office services to State Street Investment Manager Solutions, LLC and its affiliates. In all cases, the Subadviser shall remain liable as if such services were provided directly. No additional fees shall be imposed for such services except as otherwise agreed.
B. Subadviser Undertakings. In all matters relating to the performance of this Agreement, the Subadviser shall act in conformity with (a) the Memorandum and Articles, (b) the stated investment objectives, policies and restrictions of the Fund as described in the Prospectus, (c) the Guidelines, (d) any other written limitations instituted by the Adviser and agreed to by the Subadviser with regard to the Subadviser Assets, and (e) any written instructions and directions of the Board or the Adviser (so long as (x) such instructions and directions do not cause the Subadviser to violate applicable law or regulation
and (y) the Subadviser is provided a reasonable period of time to comply with such instructions and directions). The Subadviser hereby agrees to:
| (i) | regularly report to the Board, the Board of Trustees of the Trust (the “Fund Board”) and the Adviser (in such form and frequency as the Adviser and Subadviser mutually agree) with respect to the implementation of the Investment Program, compliance of the Subadviser Assets with the Memorandum and Articles, the Prospectus, the Guidelines, the 1940 Act and the Code, and other topics as may reasonably be requested by the Board, the Fund Board or the Adviser, including attending Fund Board meetings, as reasonably requested, to present such reports to the Fund Board; |
| (ii) | make themselves available, upon reasonable request by the Adviser, the Trust’s pricing agent and/or valuation committee, taking into account the time sensitive nature of the matter, to consult with the Adviser, the Trust’s pricing agent or valuation committee regarding the valuation of any of the Subadviser Assets for which the Adviser, the Trust’s pricing agent or valuation committee seeks assistance from the Subadviser or identifies for review by the Subadviser. Notwithstanding the foregoing, the Adviser acknowledges that (a) the Subadviser’s valuation policies may differ from the valuation policies of the Trust’s pricing agent and valuation committee and (b) therefore, the valuations made by the Fund with respect to the Subadviser Assets may differ from the valuations made by or on behalf of the Subadviser for other accounts that the Subadviser manages; |
| (iii) | in connection with any securities or other investments purchased, sold, retained or borrowed for the Subadviser Assets, arrange for the transmission to the Custodian on a daily basis such confirmation, trade tickets, and other documents and information, including, but not limited to, CUSIP, Sedol, or other numbers that identify the securities or other instruments to be purchased, sold, retained or borrowed on behalf of the Company, as may be reasonably necessary to enable the Custodian to perform its custodial, administrative, and recordkeeping responsibilities with respect to the Company. Communication by the Subadviser via electronic means is acceptable to the Adviser, the Custodian or the administrator (the “Administrator”). |
| (iv) | with respect to securities or other instruments of the Subadviser Assets to be settled through the Custodian, arrange for the transmission of the confirmation of such trades to the Custodian by the end of the day upon which such transaction occurs. For the avoidance of doubt, the parties acknowledge that the Subadviser is not a custodian of the Company’s assets and that it will not take possession or custody of such assets. Title to all investments shall be held in the name of the Company, provided that for convenience in buying, selling and exchanging securities (stocks, bonds, commercial paper, etc.), title to such securities may be held in the name of the Custodian, or its nominee, which bank shall be selected by the Adviser. All cash and the indicia of ownership of all other investments shall be held by the Custodian. The Subadviser shall not be liable for any act or omission of the Custodian; |
| (v) | reconcile all trades made on behalf of the Subadviser Assets with each executing broker and counterparty daily to facilitate accurate trade settlement and verify open positions (including cash). The Subadviser shall notify the Adviser and the Custodian promptly upon becoming aware of any trade which the Subadviser believes was not executed in accordance with its instructions and in no event shall notice be delivered later than one business day after the time as of which the Subadviser becomes aware of any such trade. The Company or its designee may also conduct a reconciliation of trades as reported from executing brokers and counterparties and the Subadviser shall reasonably cooperate with the Company or such designee in order to effect such reconciliation, including without limitation by arranging for reasonable access by the Company or such designee to the files and websites of the executing brokers and counterparties to the extent such access is available; |
| (vi) | promptly review each holdings reconciliation report relating to the Subadviser Assets that it receives from the Custodian and accounting agent and/or the Adviser, as appropriate, and shall use commercially reasonable efforts to resolve all open reconciliation items, including trade breaks, contained in such report within a reasonable amount of time as of which the Subadviser receives such report. The Subadviser shall notify the Adviser and the Company of any errors or discrepancies, including, without limitation, trade breaks, in the holdings reconciliation reports which have not been resolved within a reasonable amount of time as of which the Subadviser becomes aware of any such errors or discrepancies; |
| (vii) | use commercially reasonable efforts to prepare and cause to be filed in a timely manner Form 13F and Schedules 13D or 13G, if required, with respect to securities held in the Subadviser Assets, without regard for any other assets held by the Company or the Fund, unless specifically informed otherwise by the Adviser (it being understood that unless notified otherwise in writing, the Subadviser shall consider such securities as being subject to its investment discretion for purposes of Form 13F). The Subadviser agrees that it shall not acquire on behalf of the Company any equity securities registered under Section 12 of the Securities Exchange Act of 1934, as amended (“1934 Act”) with the purpose or effect, at the time of such acquisition, of changing or influencing control of the issuer of the securities or in connection with or as a participant in any transaction having such purpose or effect, including any transaction subject to Rule 13d-3(b) promulgated under the 1934 Act; |
| (viii) | provide such historical performance, fee and expense information about the accounts and investment funds the Subadviser manages that have investment objectives, policies, and strategies substantially similar to those employed by the Subadviser in managing the Subadviser Assets as may be reasonably necessary to allow the Company, the Board, the Fund Board or their agents to fulfill their duties under applicable laws, including, without limitation, Section 15 of the 1940 Act, and to permit the Adviser to satisfy its oversight responsibilities or to satisfy any request by applicable federal or state regulatory authorities. Such information may be provided in the form of a composite of accounts or on an anonymous basis and under no circumstances will the Subadviser be required to disclose confidential information regarding any of its specific clients; |
| (ix) | provide reasonable assistance to the Adviser with respect to the annual audit of the Fund’s financial statements, as related to the Subadviser Assets, including, but not limited to: (a) providing broker contacts as needed for obtaining trade confirmations; (b) subject to a written confidentiality arrangement between the parties or to some other confidentiality obligation to which the parties have agreed in writing to be bound, providing copies of term loans and swap agreements, within a reasonable time upon request by the Adviser; (c) providing reasonable assistance in obtaining trade confirmations in the event the Fund or the Fund’s independent registered public accounting firm is unable to obtain such confirmations directly from the brokers and (d) provide reasonable assistance in valuing investments that are not readily ascertainable in the event the Fund or the Fund’s independent registered public accounting firm is unable to obtain such market quotations through independent means, provided that under no circumstances will the Subadviser be responsible or liable for the audit of the Fund; and |
| (x) | provide timely input to and collaborate with the Adviser and the Fund (a) in determining appropriate liquidity classifications for the Subadviser Assets, for purposes of compliance with Rule 22e-4 under the 1940 Act and in accordance with the parameters of the Fund’s liquidity program, and (b) in providing data and information in connection with the preparation of the Fund’s shareholder reports (e.g. Form N-CSRs), census reporting forms (e.g. Form N-CEN) and portfolio holdings reporting forms (e.g. Form N-Q and/or N-PORT) or the financial reports contained therein. Notwithstanding any other provision to the contrary, Subadviser shall have no obligation to perform the following services: (a) shareholder services or support functions, such as responding to shareholders’ questions about the Fund or its investments or strategies, or preparing and filing materials for distribution to the Fund’s shareholders, including statistical information about the Fund and materials regarding the Fund’s performance or investments; (b) provision of legal, accounting or tax advice with respect to the Company or its investments by the Subadviser’s in-house legal, accounting or tax departments; (c) providing employees of the Subadviser to serve as officers of the Company; or (d) providing the Fund’s Chief Compliance Officer and associated staff or overseeing the Fund’s compliance program adopted pursuant to Rule 38a-1 under the 1940 Act, except to the extent that such oversight responsibilities are required to be performed by the Subadviser under its compliance program adopted pursuant to Rule 206(4)-7 under the Advisers Act. |
C. Expenses. The Subadviser will bear all of its expenses, including, without limitation, Subadviser’s insurance premiums and deductibles, in connection with the performance of its services under this Agreement. All other expenses to be incurred in the operation of the Company will be borne by the Company or the Fund, except to the extent specifically assumed by the Subadviser as set forth herein or otherwise. The expenses to be borne by the Company or the Fund may include, without limitation, the following: organizational costs, taxes, interest, brokerage fees and commissions, Board and Fund Board fees, Securities and Exchange Commission (the “SEC”) fees and state Blue Sky qualification fees, advisory fees, charges of custodians, transfer and dividend disbursing agents’ fees, insurance premiums and deductibles, industry association fees, outside auditing and Company- and Fund-related legal expenses, costs of independent pricing services, costs of maintaining existence, costs attributable to investor services (including, without limitation, telephone and personnel expenses), costs of preparing and printing prospectuses and statements of additional information for regulatory purposes and for distribution to existing stockholders, costs of stockholders’ reports and meetings, and any extraordinary expenses. Notwithstanding the foregoing, the Subadviser shall be responsible for all costs associated with any information statements, supplements and/or other disclosure materials that are required pursuant to any “assignment” or actual change in control or management of the Subadviser described in Section 15.B. hereof (including, but not limited to, the legal fees associated with preparation, printing, filing and mailing thereof, as well as any shareholder meeting and/or solicitation costs, if applicable). For all other costs associated with any information statements, supplements and/or other disclosure materials that are for the primary benefit of, or otherwise occur as a result of any event occurring with respect to the Subadviser, the parties agree to work together in good faith to address possible Subadviser payment of those expenses.
X. Xxxxxxxxx. Except as otherwise agreed with the Adviser herein or otherwise, the Subadviser will utilize counterparties for futures and options clearing, and ISDAs for over-the-counter derivatives under agreements set up by, or in the name of, the Adviser or the Company. Notwithstanding the foregoing, at the request of the Adviser and subject to the Adviser’s review and approval, Subadviser may negotiate and enter into such trading terms, ISDAs, control agreements, clearing agreements and other trading arrangements on behalf of the Company as may be necessary for the Subadviser to effect transactions for Subadviser Assets with brokers, dealers and counterparties selected by the Subadviser. The Subadviser shall not be liable for any act or omission of any brokerage firm or firms or counterparties
designated by the Adviser or chosen by the Subadviser with reasonable care. The Subadviser will be responsible for managing any collateral and margin requirements associated with investments made for the Subadviser Assets and will perform in-house reconciliation procedures on such accounts and provide information regarding such reconciliations to the Adviser upon reasonable request. The Subadviser shall notify the Custodian, the relevant counterparty and the Adviser of any significant discrepancies in the collateral requirements or daily collateral management activity promptly of the Subadviser becoming aware of a discrepancy and shall work to resolve any discrepancies in the collateral requirements or daily collateral management activity promptly after the time as of which the Subadviser becomes aware of such discrepancy. In selecting brokers or dealers to execute transactions on behalf of the Subadviser Assets, it shall be the policy of the Subadviser to seek to obtain best execution and the Subadviser agrees to act in conformance with its best execution policies and procedures. Subadviser shall provide updates of such best execution policies and procedures to the Adviser and the Company upon the implementation of any material changes made thereto. In assessing best execution, the Subadviser will consider factors it deems relevant, which may include, without limitation, the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer and the reasonableness of the commission, if any, for the specific transaction and on a continuing basis. In selecting brokers or dealers to execute a particular transaction, and in evaluating best execution, the Subadviser is authorized to consider the brokerage and research services (within the meaning of Section 28(e) of the Securities Exchange Act of 1934, as amended) provided to the Company and/or other accounts over which the Subadviser exercises investment discretion. Other than upon prior written approval by the Adviser, Subadviser will not engage in any transactions with respect to the Subadviser Assets with any affiliate of the Adviser. Subadviser will provide to Adviser a written list of its affiliates and will, from time to time, update such list as necessary. It is expressly understood and agreed that the Adviser: (i) shall provide timely and specific information to Subadviser regarding any restrictions on, or prohibitions against, the acquisition or holding by the Subadviser Assets of any “affiliate” (as such terms are defined in the 1940 Act); and (ii) has provided to Subadviser a list containing any such restricted securities, will update this list from time to time as may be necessary or appropriate, and acknowledges that unless and until such information has been provided to Subadviser, Subadviser is under no obligation to refrain from acquiring any such security on behalf of the Subadviser Assets. If the Adviser is not able to provide identifying information for each affiliate issuer as may be requested by Subadviser, the Adviser hereby acknowledges that Subadviser will use reasonable efforts to implement and monitor such restricted list.
E. Aggregation of Orders. Subject to the Subadviser’s obligations to seek to obtain best execution in selecting brokers or dealers to execute transactions on behalf of the Subadviser Assets as set forth in Section 2D (Brokerage), the Subadviser may to the extent permitted by applicable laws and regulations, but shall be under no obligation to, aggregate the securities and instruments to be so purchased or sold in order to obtain best execution and to elect, where appropriate, any beneficial regulatory treatment, including real time reporting delays. In such event, allocation of the orders, as well as the expenses incurred in the transaction, will be made by the Subadviser in a fair and equitable manner and consistent with the Subadviser’s fiduciary obligations to the Company and to its other clients and in a manner consistent with the Subadviser’s allocation policies and procedures. Subadviser shall provide updates of its policies and procedures concerning allocations of orders to the Adviser and the Company upon the implementation of any material changes made thereto. The Adviser recognizes that, in some cases, the Subadviser’s allocation procedure may limit the size of the position that may be acquired or sold for the Subadviser Assets.
F. Books and Records. The Subadviser shall maintain separate detailed records as are required by applicable laws and regulations applicable to the Subadviser, including, without limitation, Rule 31a-3 under the 1940 Act, of all matters hereunder pertaining to the Subadviser Assets (the “Company’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 Subadviser hereby agrees that
the Company’s Records are the property of the Company and further agrees to provide promptly to the Company copies of any of such records upon the Company’s or the Adviser’s request, provided, however, that Subadviser may retain copies of any such records. The Subadviser further agrees to preserve for the periods prescribed by Rule 31a-2 under the 1940 Act the records relating to its activities hereunder required to be maintained by Rule 31a-1 under the 1940 Act and to preserve the records relating to its activities hereunder required by Rule 204-2 under the Advisers Act for the period specified in said Rule. Notwithstanding the foregoing, Subadviser has no responsibility for the maintenance of the records of the Company, except for those related to the Subadviser Assets that are required to be maintained by the Subadviser under applicable requirements of the 1940 Act.
G. Subadviser Compliance Responsibilities. The Subadviser and the Adviser acknowledge that the Subadviser is not the compliance agent for the Company, and does not have access to all of the Trust’s books and records necessary to perform certain compliance testing. However, to the extent that the Subadviser has agreed to perform the services specified in this Agreement, the Subadviser shall perform (i) compliance monitoring designed to ensure compliance as set forth in Section 2A and (ii) periodic compliance testing with respect to the Subadviser Assets as it deems appropriate, based upon information in its possession. The Adviser shall promptly provide the Subadviser with complete and accurate copies of the Memorandum and Articles, the Trust’s Declaration of Trust and By-Laws, the Prospectus, the Guidelines and any written policies or procedures adopted by the Board and currently in effect applicable to the Subadviser Assets, and shall provide the Subadviser with any amendments or revisions thereto reasonably in advance of such adoptions, amendments or revisions taking effect. Subadviser shall supply such reports or other documentation as reasonably requested from time to time by the Adviser to evidence Subadviser’s compliance with the policies or procedures described in this paragraph.
H. Proxy Voting and Corporate Action Authority.
| (i) | The Subadviser shall use its good faith judgment in a manner which it reasonably believes best serves the interests of the Company to vote or abstain from voting all proxies solicited by or with respect to the issuers of any voting securities in the Subadviser Assets. The Subadviser may use recommendations from a third party in order to make voting decisions and may use a third party service provider to perform the voting (a “Third Party Proxy Voting Service Provider”). The Custodian shall cause to be forwarded to the Subadviser or Third Party Proxy Voting Service Provider all proxy solicitation materials that the Company or its representatives may receive. The Subadviser agrees that it has adopted written proxy voting procedures that comply with the requirements of the 1940 Act and the Advisers Act. The Subadviser further agrees that it will provide the Board or the Fund Board as they may reasonably request, with a written report of the proxies voted during the most recent 12-month period or such other period as the Board or the Fund Board may designate, in a format reasonably requested by the Board or the Fund Board. Upon reasonable request, Subadviser shall provide the Adviser or the Administrator with all proxy voting records relating to the Subadviser Assets, including but not limited to those required by Form N-PX. The Subadviser will also provide an annual certification, in a form reasonably acceptable to Adviser, attesting to the accuracy and completeness of such proxy voting records. For the avoidance of doubt, the Subadviser has sole and full discretion to vote (or not to vote) any securities constituting the Subadviser Assets and the Adviser will not, directly or indirectly, attempt to influence the Subadviser’s voting decisions. The Adviser understands that the Subadviser shall be responsible for voting proxies only if the proxies and related proxy materials are received by the Subadviser or its designee from the Custodian in good order and in a timely manner. |
| (ii) | The investment authority granted to the Subadviser shall include the authority to exercise whatever powers the Adviser may possess with respect to any of its assets held in the Subadviser Assets, including, but not limited to, the power to exercise rights, options, warrants, conversion privileges, and redemption privileges, and to tender securities pursuant to a tender offer. The Subadviser will use commercially reasonable efforts to elect on corporate actions within the time frame prescribed by the Custodian or other agent of the Subadviser Assets. |
| (iii) | The Subadviser will not file class action claim forms or otherwise exercise any rights the Adviser may have with respect to participating in, commencing or defending suits or legal proceedings involving securities or issuers of securities held in, or formerly held in, the Subadviser Assets, unless the Subadviser and the Adviser mutually agree in writing that the Subadviser Assets takes any such actions. |
I. Use of Names.
| (i) | The Subadviser shall not use the name, logo, insignia, or other identifying mark of the Trust, the Fund, the Company or the Adviser or any of their affiliates or any derivative or logo or trade or service mark thereof, or disclose information related to the business of the Adviser or any of its affiliates in material relating to the Subadviser in any manner not approved in writing prior thereto by the Adviser; provided, however, that during the term of this Agreement, the Subadviser may use the Adviser’s or the Trust’s name and that of their affiliates which merely refer in accurate terms to the appointment of the Subadviser hereunder or which are required by the SEC, a state securities commission, law, regulation, court order or other similar request or demand or as otherwise permitted pursuant to this Agreement. |
| (ii) | It is understood that the name “Pacific Investment Management Company LLC” and “PIMCO” and any derivative thereof and certain trade names, trademarks, service marks and/or logos associated with such names (“PIMCO Marks”) are the valuable property of PIMCO and its affiliates. The Adviser, the Trust, the Fund and/or the Company may use the PIMCO Marks in the offering materials of the Fund or other written marketing materials regarding the Fund with the prior written approval of PIMCO, which approval shall not be unreasonably withheld or delayed for so long as PIMCO is the Subadviser to the Fund and/or the Company, provided that no approval is required for Fund materials or communications that contain only the name and/or the fact of the appointment or role of the Subadviser with the Fund and/or the Company or language that is identical to previously-approved language from the current Fund Prospectus or Statement of Additional Information. The Subadviser agrees to use commercial reasonable efforts to review all material promptly, but no later than ten days of their receipt thereof. The permission to use the PIMCO Marks is non-exclusive, non-transferable, non-sublicensable and non-assignable. In obtaining permission to use the PIMCO Marks for this purpose, the Adviser, the Trust, the Fund and/or the Company will acquire no right, title, or interest whatsoever to any of the PIMCO Marks. The Adviser, the Trust, the Fund and/or the Company shall not edit, excerpt or modify the PIMCO Marks in any way. Upon termination of this Agreement, between the Adviser and the Sub-Adviser, the Adviser, the Trust, the Fund and the Company shall immediately cease to use such name (or derivative or logo), except as may be required by law or regulation. |
J. Other Subadvisers. Without the prior written consent of the Adviser, the Subadviser will not consult with any other subadviser to the Company or the Fund (including, in the case of an offering of securities subject to Section 10(f) of the 1940 Act, any subadviser that is a principal underwriter or an affiliated person of a principal underwriter of such offering) concerning transactions for the Company or the Fund in securities or other assets, except, in the case of transactions involving securities of persons engaged in securities-related businesses, for purposes of complying with the conditions of paragraphs (a)
and (b) of Rule 12d3-1 under the 1940 Act. The Subadviser is responsible only for providing advice and the other services set forth herein with respect to the Subadviser Assets. Pursuant to Rule 17a-10 of the 1940 Act, the Adviser agrees that it will include a provision substantially similar to this Section 2J in each other subadvisory agreement relating to the Company or the Fund.
K. Portfolio Holdings. The Subadviser will not disclose, in any manner whatsoever, any list of securities held by the Company or a list of Subadviser Assets, other than (i) in accordance with the Fund’s portfolio holdings disclosure policy, (ii) to third party service providers that reasonably require such information to perform services with respect to the Subadviser Assets so long as such third party service providers are subject to confidentiality restrictions and covenants, (iii) as otherwise directed in writing by the Adviser or (iv) as required by applicable law, regulation, court order or other similar request or demand (including in connection with Section 15 of the 1940 Act). The foregoing shall not prohibit the Subadviser’s disclosure of portfolio securities and instruments held by any of its other client accounts or investment funds which pursue similar strategies to the Company.
L. Business Continuity. The Subadviser has established and will keep in effect a “disaster recovery” preparedness plan that sets forth procedures for recovery of critical business functions at minimum operating levels and is designed so that it can be implemented within a 24-hour time period. The Subadviser shall notify the Adviser, as soon as practicable by telephone, electronic mail or such other method of prompt communication as may be available under the circumstances, of the occurrence of any event requiring the Subadviser to implement any procedures under such plan.
M. Cybersecurity. The Subadviser has established and will keep in effect policies and procedures reasonably designed to detect and prevent cybersecurity breaches, including without limitation, malware, viruses, and other unauthorized access to information and information systems maintained by the Subadviser. The Subadviser shall notify the Adviser, as soon as practicable by telephone, electronic mail or such other method of prompt communication as may be available under the circumstances, of the occurrence or threat of any event that results in any unauthorized access to or modification of, loss or misuse of, or impairment of the integrity or availability of, any such information or information systems maintained by the Subadviser that is reasonably likely to result in the loss or misuse of information regarding the Company.
N. Subadviser Rights to Performance Record. Notwithstanding anything else to the contrary herein, the Subadviser shall retain a right to use the investment performance and track record of the Subadviser Assets (including in marketing) to the extent permitted by law, provided that the name of the Company, the Fund and the Trust is not specifically identified without the prior written approval of the Trust. Further, for the avoidance of doubt, the Subadviser shall be entitled to retain and use records of each of its transactions and other records pertaining to the Subadviser Assets and the Company as are necessary to support any such uses of the investment performance and track record.
O. Subadviser Trade Errors and Breaches. The Subadviser shall notify the Adviser as promptly as reasonably practicable upon detection of any trade error or any breach of Guidelines or breach of other applicable limitations or requirements (a “Breach”) in connection with its management of the Subadviser Assets and the Subadviser shall commence action to correct any trade error or Breach promptly upon detection of any trade error in connection with its management of the Subadviser Assets. In the event of a trade error or Breach in connection with its management of the Subadviser Assets, the Subadviser shall provide reasonable documentation to the Adviser describing the trade error or Breach and the action, if any, to be taken to prevent future occurrences of such trade error or Breach or, alternatively, a statement that the Subadviser has reviewed its existing controls, found them reasonably designed to prevent additional trade errors or Breaches in the future and has determined that no further action is required. The parties agree to work together in good faith to resolve trade errors or Xxxxxxxx,
which could include remediation by the Subadviser and/or reimbursement from the Subadviser to the Company of certain costs, losses and expenses incurred due to a trade error or Breach deemed by the parties to be caused by the Subadviser. The Subadviser shall provide the Adviser and the Company, or their agents, with access to documents and information within its possession or control reasonably necessary to assess, analyze and correct any trade error or Breach.
3. Compensation of Subadviser. In recognition of the fact that the Subadviser shall receive compensation from the Adviser under the Fund Sub-Advisory Agreement, the Subadviser shall receive no additional compensation from the Adviser or the Company for the services rendered pursuant to this Agreement.
4. Standard of Care.
A. The Subadviser shall exercise its best judgment in rendering its services described in this Agreement. Except as may otherwise be required by the 1940 Act or the rules thereunder or other applicable law, or as otherwise provided in Section 2O above and Section 5 below, the Subadviser shall not be liable for the acts or omissions of any other fiduciary respecting the Subadviser Assets or for any error of judgment or mistake of law or for acting in accordance with specific directions or instructions from the Adviser or for any loss suffered by the Company or the Adviser in connection with the matters to which this Agreement relates, except a loss resulting from Xxxxxxxxxx’s willful misfeasance, bad faith or gross negligence on its part in the performance of its duties hereunder, or from reckless disregard by it of its obligations and duties under this Agreement or from its material breach of this Agreement. Without limiting the generality of the foregoing, the Subadviser will not be liable for any indirect, special, incidental or consequential damages. It is acknowledged and agreed that any trade error that results in a gain to the Company shall inure to the benefit of the Company.
B. The Subadviser is expressly authorized to rely upon any and all instructions, approvals and notices given on behalf of the Adviser by any one or more of those persons designated as representatives of the Adviser whose names, titles and specimen signatures appear in Appendix B attached hereto. The Adviser shall provide a Secretary Certificate, Incumbency Certificate, or similar document indicating that the persons designated as representatives have the authority to bind the Adviser. The Adviser may amend such Appendix B from time to time by written notice to the Subadviser. Subadviser shall continue to rely upon these instructions until notified by the Adviser to the contrary.
5. Indemnification.
A. The Adviser shall indemnify the Subadviser and the Subadviser’s affiliates, agents, controlling persons, directors, partners, officers, employees and shareholders (collectively, the “Subadviser Indemnified Parties”) against, and hold such Subadviser Indemnified Parties harmless from, any reasonable costs, expense, claim, loss, liability, judgment, fine, settlement or damage (including reasonable legal and other expenses) (collectively, “Losses”) arising out of any claim, demands, actions, suits or proceedings (civil, criminal, administrative or investigative) asserted or threatened to be asserted by any third party (collectively, “Proceedings”) in so far as such Loss (or actions with respect thereto) arises out of or is based upon (i) any material misstatement or omission of a material fact in the Fund’s Prospectus, registration statement, proxy materials or reports filed with the SEC, unless and to the extent such material misstatement or omission was made in reliance upon, and is consistent with, information furnished in writing to the Adviser by any Subadviser Indemnified Party for use therein; (ii) the Adviser’s willful misfeasance, bad faith or gross negligence in the performance of its duties hereunder or the Adviser’s reckless disregard of its obligations and duties under this Agreement or the Adviser’s material breach of this Agreement; or (iii) any material breach by the Adviser of this Agreement including, without limitation, any representation or warranty contained herein. This indemnity shall survive the termination of this Agreement.
B. The Subadviser shall indemnify the Company, the Trust, the Adviser and each of their respective affiliates, agents, controlling persons, directors, members of the Board and the Fund Board, partners, officers, employees and shareholders (the “Adviser Indemnified Parties”) against, and hold them harmless from, any and all Losses arising out of any Proceedings in so far as such Loss (or actions with respect thereto) arises out of or is based upon (i) any material misstatement or omission of a material fact in information regarding the Subadviser furnished in writing to the Adviser by the Subadviser for use in the Fund’s Prospectus, registration statement, proxy materials or reports filed with the SEC; (ii) the failure of the Subadviser to execute, or cause to be executed, portfolio investment transactions according to the requirements of applicable law, including the 1940 Act, the Code, the Prospectus and the Guidelines; (iii) any material breach by the Subadviser of this Agreement including, without limitation, any representation or warranty contained herein (and other written instructions given by the Board or the Adviser to the Subadviser in accordance with this Agreement); or (iv) the Subadviser’s willful misfeasance, bad faith or gross negligence in the performance of its duties hereunder or the Subadviser’s reckless disregard of its obligations and duties under this Agreement.
6. Non-Exclusivity. The services of the Subadviser to the Adviser with respect to the Subadviser Assets are not to be deemed to be exclusive, and the Subadviser and its affiliates shall be free to render any investment advisory or any other services to others whether similar or dissimilar in nature to the services hereunder (including investment companies) and to engage in any other activities. It is understood and agreed that the directors, officers, and employees of the Subadviser are not prohibited from engaging in any other business activity or from rendering services to any other person, or from serving as partners, officers, directors, trustees, or employees of any other firm or corporation, including investment companies.
The Adviser acknowledges that the Subadviser now acts and from time to time hereafter may act as investment adviser or sub-investment adviser to one or more private funds, investment companies and fiduciary or other managed accounts (collectively, the “accounts”), and the Adviser has no objection to the Subadviser so acting. The Adviser acknowledges that while the Subadviser Assets and other accounts may invest in the same type of securities, the Subadviser may give advice or exercise investment responsibility and take such other action with respect to such other accounts which may differ from advice given or the timing or nature of action taken with respect to the Subadviser Assets; provided, however, that any such advice is consistent with the Subadviser’s fiduciary duties and obligations to the Subadviser Assets. The Adviser acknowledges that the investment results achieved by the Subadviser may not be the same as the investment results achieved by any other account or investment product advised by the Subadviser, including products or accounts with similar names, investment objectives, benchmarks or policies.
In addition, it is understood that the persons employed by the Subadviser to assist in the performance of the Subadviser’s duties hereunder will not devote their full time to such services and nothing contained herein shall be deemed to limit or restrict the Subadviser’s right or the right of any of the Subadviser’s affiliates to engage in and devote time and attention to other businesses or to render services of whatever kind or nature.
The Subadviser shall, for all purposes hereof, be an independent contractor and, except as expressly provided hereunder, the Subadviser shall have no authority to act for or represent the Company or the Adviser in any way or otherwise be deemed an agent of the Company or the Adviser.
7. Maintenance of Insurance. During the term of the Agreement and for a period of one year after the termination hereof, Subadviser will be covered by errors and omissions insurance, fidelity bond coverage and commercial general liability insurance coverage maintained by the Subadviser or any of its affiliates each in a commercially reasonable amount based upon the amount of assets managed by the Subadviser and industry standards. Subadviser shall upon reasonable request provide to the Adviser any information it may reasonably require concerning the amount of or scope of the insurance and shall promptly notify the Adviser if the issuer or the amount of the foregoing policies shall change.
8. Confidentiality.
A. Each party to this Agreement shall keep confidential any nonpublic information concerning the other party and will not use or disclose such information for any purpose other than to a limited number of employees, attorneys, accountants, affiliates and other advisers (collectively, “Representatives”) for which such disclosure is necessary for the performance of its responsibilities and duties hereunder. Nonpublic information shall not include information a party to this Agreement can clearly establish was (a) known to such party prior to disclosure to such party by the other party or its representatives and not otherwise subject to a separate confidentiality obligation (b) rightfully acquired by the party from third parties whom the party reasonably believes after due inquiry are not under an obligation of confidentiality to the other party to this Agreement; (c) placed in public domain without fault of the party or its affiliates; or (d) independently developed by the party without reference or reliance upon the nonpublic information.
Neither party shall use the information provided by the other party to trade for their own account or, without the other party’s consent, for the account of any other person (other than the Company or the Fund).
B. The Subadviser may disclose information relating to the Adviser, the Trust, the Fund, the Company and/or the Subadviser Assets to its associates, to any of its delegates and other agents under the Agreement, to any market counterparty or any broker (in accordance with market practice) in relation to transactions undertaken for the Subadviser Assets, and to the Custodian, in order to assist or enable the proper performance of its services under the Agreement. Subject to the Guidelines, the Subadviser and any trading counterparties are authorized to disclose transaction and other information to data repositories and regulators for the purposes of meeting applicable transaction and other regulatory reporting requirements. The Subadviser may mention the Adviser’s, the Company’s or the Trust’s name in a list of its clients.
C. The Adviser or the Company may disclose information relating to the Subadviser and/or the Subadviser Assets to its affiliates’ officers, directors, employees (including the officers, directors and employees of JPMC’s corporate parent and those of such parent’s direct and indirect subsidiaries), agents, advisors, attorneys, service providers, accountants, and employees of other contractors or consultants retained by JPMC (including those retained by JPMC’s corporate parent or such parent’s direct or indirect subsidiaries) in order to enable the proper performance of its responsibilities and duties hereunder or if such disclosure is expressly required or requested by applicable federal or state regulatory authorities or other judicial or governmental process; provided, that the receiving party advises the entity to which disclosure is made of the confidential nature of the information.
D. All third parties listed in the provisions above receiving non-public information shall (a) have a need to know such information for its performance in connection with the Company; and (b) have been informed of the confidential nature of the information, and have been directed by the receiving party to maintain the confidential and proprietary nature of such information to the extent required of the receiving party hereto.
9. Term of Agreement. This Agreement shall become effective as of the date of its execution and shall continue in effect for a period of two years from the date of execution. Thereafter, this Agreement shall continue automatically for successive annual periods, provided (i) such continuance is specifically approved at least annually by the Board and (ii) the continuance of the Fund Sub-Advisory Agreement is specifically approved at least annually by the Fund Board or by the vote of a “majority” (as defined in the 1940 Act) of the Fund’s outstanding voting securities, provided that in either event the continuance also is approved by a majority of the Fund Board who are not “interested persons” (as defined in the 1940 Act) of any party to the Fund Sub-Advisory Agreement, by vote cast in person at a meeting called for the purpose of voting on such approval. This Agreement is terminable at any time (including during the initial two year term), without penalty, (i) on 61 days’ written notice by the Adviser, or (ii) on 60 days’ written notice by the Board, by a vote of the Board to terminate this Agreement, by a vote of the Fund Board to terminate the Fund Sub-Advisory Agreement or this Agreement, or by a vote of holders of a majority of the Fund’s shares to terminate the Fund Sub-Advisory Agreement or this Agreement, or (iii) by the Subadviser, and will terminate five business days after the Subadviser receives written notice of the termination of the Advisory Agreement between the Company and the Adviser. This Agreement also will terminate automatically in the event of its Assignment (as defined in the 1940 Act).
10. Representations of Subadviser. The Subadviser represents, warrants, and agrees on each day during the term of this Agreement as follows:
A. The Subadviser: (i) is registered as an investment adviser under the Advisers Act and will continue to be so registered for so long as this Agreement remains in effect; (ii) meets, and will continue to meet for so long as this Agreement remains in effect, any other applicable federal, state or foreign law requirements, or the applicable requirements of any regulatory or industry self-regulatory organization, necessary to be met in order to perform the services contemplated by this Agreement; (iii) has all necessary federal, state and foreign governmental, regulatory and commodity exchange licenses and approvals required to conduct its business as contemplated hereby; (iv) is and will continue to be operated in compliance in all material respects with all applicable laws, rules, and regulations; (v) has in effect all filings and registrations with federal and state governmental and regulatory agencies required to conduct its business and to act as described herein or required to perform its obligations hereunder (including, by way of example only but without limitation, to the extent required, registration with the Commodity Futures Trading Commission (the “CFTC”) as a commodity trading advisor under the Commodity Exchange Act, as amended (the “CEA”) and membership with the National Futures Association (the “NFA”)), and the performance of such obligations will not materially violate or result in a material breach of any provision of the Subadviser’s certificate of formation or operating agreement; (vi) has the authority to enter into and perform the services contemplated by this Agreement; (vii) will promptly notify the Adviser of the occurrence of any event that would disqualify the Subadviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act or otherwise; and (viii) will manage the Subadviser Assets in a manner consistent with the Subadviser’s code of ethics (the “Code of Ethics”) and its compliance policies and procedures.
B. The Subadviser has adopted a written Code of Ethics complying with the requirements of Rule 17j-1 under the 1940 Act and, if it has not already done so, will provide the Adviser and the Company with a summary of such code of ethics. On a quarterly basis upon written request of the Adviser, the Subadviser will comply with the reporting requirements of Rule 17j-1, which may include (i) certifying to the Adviser that the Subadviser and its Access Persons have complied with the Subadviser’s Code of Ethics with respect to the Subadviser Assets and (ii) identifying any material violations of the Subadviser’s Code of Ethics which have occurred with respect to the Subadviser Assets. Upon the reasonable request of the Adviser, the Subadviser shall permit the Adviser, its employees or its agents to examine the reports required to be made by the Subadviser pursuant to Rule 17j-1.
C. The Subadviser has adopted and implemented written policies and procedures, as required by Rule 206(4)-7 under the Advisers Act, which are reasonably designed to prevent violations of the federal securities laws by the Subadviser, its employees, officers and agents. Upon reasonable request, the Subadviser shall provide the Adviser with access to the records relating to such policies and procedures as they relate to the Subadviser Assets. The Subadviser will also provide, at the reasonable request of the Adviser, periodic certifications, in a form mutually agreed to by the Adviser and Subadviser, attesting to such written policies and procedures. In addition, on an annual basis, the Subadviser will provide the Adviser with a summary of their annual review of its policies and procedures as required by Rule 206(4)-7 of the Advisers Act.
D. The Subadviser has provided the Adviser and the Company with a copy of its Form ADV Part 2 as most recently filed with the SEC and hereafter will provide a copy of its annual amendment to the Adviser. The Adviser acknowledges receipt of the Subadviser’s Form ADV more than 48 hours prior to the execution of this Agreement.
E. The written information provided by the Subadviser to the Adviser, the Company, the Fund and/or the Trust for use in (i) the Fund’s Prospectus, registration statement or proxy materials (the “Offering Materials”) and/or (ii) advertisements or sales literature or in communications with the Board, the Fund Board, governmental or self-regulatory authorities or reports filed with the SEC (only when considered together with the other information included in the Offering Materials) does not, as of the date hereof, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading in any material respect.
F. The execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein will not constitute a breach of, or default under, any instrument by which the Subadviser is bound or any order, rule, statue or regulation applicable to the Subadviser of any court or any governmental body or administrative agency having jurisdiction over the Subadviser, including, without limitation the 1940 Act or the Advisers Act.
G. The Subadviser is not in default of any material obligation to which it is bound or agreement to which it is a party, nor is the Subadviser in violation of any statute, regulation, law, order, writ, injunction, judgment or decree to which it is subject, which default or violation would materially adversely affect the business or financial condition of the Subadviser or are reasonably likely to have a material adverse effect on the Subadviser’s ability to carry out its obligations to the Company under this Agreement.
H. Other than as may have been disclosed in writing to the Adviser, there is not pending, or to the best of the Subadviser’s knowledge threatened, any action, suit or proceeding before or by any court or other governmental body to which the Subadviser is a party, or to which any of the assets of the Subadviser are subject, which would reasonably be expected to have a material adverse effect on the Subadviser’s ability to perform its obligations under this Agreement. Other than as may have been disclosed in writing to the Adviser, the Subadviser has not received any notice of an investigation or warning letter from any regulatory organization, including, without limitation, the SEC, the NFA or the CFTC regarding material non-compliance by the Subadviser with any rule, regulation or statute, which notice or letter is reasonably expected to result in a material adverse effect on the Subadviser’s ability to perform its obligations under this Agreement.
I. This Agreement has been duly and validly authorized, executed and delivered by the Subadviser and constitutes a legal, valid and binding agreement of the Subadviser enforceable in accordance with its terms except as may be limited by bankruptcy, insolvency laws and principals and doctrines of equity.
J. The Subadviser is an entity duly organized and validly existing and in good standing under the laws of the jurisdiction of its organization and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially affect the Subadviser’s ability to perform its obligations under this Agreement. The Subadviser has full power and authority to perform its obligations under this Agreement and it has the requisite power and authority to own property, perform its obligations and conduct its business.
K. Except as otherwise agreed by the Adviser, the Subadviser will manage the investments of the Subadviser Assets in accordance with the exemption provided in CFTC Rule 4.13(a)(3).
L. The Subadviser has policies and procedures to ensure compliance with all applicable laws, rules and regulations, including without limitation, economic sanctions programs (“Sanctions”), such as those administered or promulgated by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the European Union, and the United Nations Security Council; and neither the execution or delivery of this Agreement by the Subadviser nor any action taken in its performance of its obligations hereunder shall cause the Company or the Adviser to be in violation of Sanctions; and neither the execution or delivery of this Agreement by the Subadviser nor its performance of its obligations hereunder shall conflict with, violate, breach or constitute a default under any term or provision of its constituent or governing documents or any indenture, mortgage, deed of trust, instrument, agreement or other document to which the Subadviser is a party or by which it is bound or to which any of its assets are subject or any applicable statute, law, rule, regulation, order or other legal requirement applicable to the Subadviser or any of its assets.
If at any time, any event shall occur which would make any of the foregoing representations and warranties of the Subadviser no longer true and accurate in any material respect, the Subadviser shall notify the Adviser as soon as is reasonably practicable, except as prohibited by applicable law.
11. Representations of Adviser. The Adviser represents, warrants, and agrees, on each day during the term of this Agreement, as follows:
A. The Adviser: (i) is registered as an investment adviser under the Advisers Act and will continue to be so registered for so long as this Agreement remains in effect; (ii) has the authority to enter into and perform the services contemplated by this Agreement; (iii) will promptly notify the Subadviser of the occurrence of any event that would disqualify the Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act or otherwise unless exemptive relief has been obtained; (iv) is and will continue to be operated in compliance in all material respects with all applicable laws, rules, and regulations necessary to be met in order to advise the Company and to perform the services contemplated by this Agreement; and (v) has in effect all filings and registrations with federal and state governmental and regulatory agencies required to conduct its business for the Company and to act as described herein or required to perform its obligations to the Company.
B. Each of the Company and the Trust is duly organized and validly existing and in good standing under the laws of the jurisdiction of its organization and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification, and the Trust is registered as an investment company under the 1940 Act and shall maintain such registration in good standing throughout the term of this Agreement.
C. Neither the Offering Materials nor any advertisements or sales literature regarding the Fund contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading in any material respect.
D. The Adviser is an entity duly organized and validly existing and in good standing under the laws of the jurisdiction of its organization and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially affect the Adviser’s ability to perform its obligations under this Agreement. The Adviser has full power and authority to perform its obligations under this Agreement and it has the requisite power and authority to own property, perform its obligations and conduct its business.
E. The Adviser is not in default of any material obligation to which it is bound or agreement to which it is a party, nor is the Adviser in violation of any statute, regulation, law, order, writ, injunction, judgment or decree to which it is subject, which default or violation would materially adversely affect the business or financial condition of the Adviser or its ability to provide services to the Company or are reasonably likely to have a material adverse effect on the Adviser’s ability to carry out its obligations to the Company.
F. Other than as may have been disclosed in writing to the Subadviser, there is not pending, or to the best of the Adviser’s knowledge threatened, any action, suit or proceeding before or by any court or other governmental body to which the Adviser is a party, or to which any of the assets of the Adviser are subject, which would reasonably be expected to have a material adverse effect on the Adviser’s ability to perform its obligations under this Agreement. Other than as may have been disclosed in writing to the Subadviser, the Adviser has not received any notice of an investigation or warning letter from any regulatory organization, including, without limitation, the SEC, the NFA or the CFTC regarding material non-compliance by the Adviser with any rule, regulation or statute, which notice or letter is reasonably expected to result in a material adverse effect on the Adviser’s ability to perform its obligations under this Agreement. Other than as may have been disclosed in writing to the Subadviser, the Company has not received any notice of an investigation or warning letter from any regulatory organization, including, without limitation, the SEC, the NFA or the CFTC regarding material non-compliance by the Company with any rule, regulation or statute, which notice or letter is reasonably expected to result in a material adverse effect on the Subadviser Assets.
G. The execution and delivery of this Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein will not constitute a breach of, or default under, any instrument by which the Adviser is bound or any order, rule, statue or regulation applicable to the Adviser of any court or any governmental body or administrative agency having jurisdiction over the Adviser including, without limitation the 1940 Act or the Advisers Act.
H. This Agreement has been duly and validly authorized, executed and delivered by the Adviser and constitutes a legal, valid and binding agreement of the Adviser enforceable in accordance with its terms. This Agreement has been duly approved by the Company and the Board in accordance with all applicable requirements of the 1940 Act.
I. When fully seeded, the Company is a “qualified institutional buyer” (“QIB”) as defined in Rule 144A under the Securities Act of 1933, as amended, and the Adviser will promptly notify the Subadviser if the Company ceases to be a QIB.
J. When fully seeded, the Company is a “qualified eligible person” (“QEP”) as defined in Commodity Futures Trading Commission Rule 4.7 (“CFTC Rule 4.7”), and the Adviser will promptly notify the Subadviser if the Company ceases to be a QEP, and hereby consents to be treated as an “exempt account” under CFTC Rule 4.7.
K. Subadviser Assets are free from all liens and charges, and undertakes that no liens or charges will arise from the act or omissions of the Adviser, the Trust, the Fund or the Company which may prevent the Subadviser from giving a first priority lien or charge on the assets solely in connection with the Subadviser’s authority to direct the deposit of margin or collateral to the extent necessary to meet the obligations of the Subadviser Assets with respect to any investments made pursuant to the Guidelines.
L. The Adviser has established “know your customer” policies and procedures that comply with all applicable regulations and which are reasonably designed to detect and prevent the Company from using the Subadviser’s services for illegal purposes, including to launder money or finance terrorist activities. To the best of Adviser’s knowledge, the Subadviser Assets do not contain funds derived from unlawful activity and/or violates U.S. anti-money laundering laws.
M. The Adviser agrees to annually provide the Subadviser with a list of (i) each “government entity,” as defined in Rule 206(4)-5 under the Advisers Act, invested in the Fund where the account of such government entity can reasonably be identified as being held in the name of or for the benefit of such government entity on the records of the Fund or its transfer agent; and (ii) each government entity that sponsors or establishes a 529 Plan and has selected the Fund as an option to be offered by such 529 Plan, to the extent applicable and at such time as requested by the Subadviser.
If at any time, any event shall occur which would make any of the foregoing representations and warranties of the Adviser no longer true and accurate in any material respect, the Adviser shall notify the Subadviser as soon as is reasonably practicable, except as prohibited by applicable law.
12. Provision of Certain Information by Subadviser.
A. The Subadviser will promptly notify the Adviser, as permitted by applicable law, (1) in the event the SEC, CFTC, NFA or other US or non-US governmental or self-regulatory authority has (i) censured the Subadviser or any of its affiliates; (ii) placed limitations upon its (or any affiliate’s) activities, functions or operations which may reasonably be expected to have a material adverse effect on the Subadviser’s ability to perform its obligations under this Agreement; (iii) suspended or revoked its (or any affiliate’s) registration, if any, as an investment adviser; or (iv) has commenced proceedings or a formal investigation that may reasonably be expected to have a material adverse effect on the Subadviser’s ability to perform its obligations under this Agreement; (2) upon having a reasonable basis for believing that the Subadviser Assets, assuming the Subadviser Assets (together with the “Subadviser Assets,” with respect to the Fund, under the Fund Sub-Advisory Agreement) constituted a separate investment company registered under the 1940 Act, have ceased to qualify or might reasonably be expected to fail to qualify as a regulated investment company under Subchapter M of the Code, except as otherwise provided for in the Guidelines; or (3) there occurs any (a) conviction, settlement or plea of guilty or no contest by the Subadviser or any of its affiliates, or any principal or officer or portfolio manager who manages the Subadviser Assets (the “Relevant Persons”) regarding any felony, securities law-related misdemeanor or any criminal misdemeanor involving theft or fraud, (b) settlement with or final determination by any regulatory authority involving a material violation of a securities law or regulation on the part of any Relevant Person; (c) formal allegation by any US or non-US governmental or self-regulatory body (including, but not to, limited to Xxxxx Notices) of fraud, embezzlement, money laundering, xxxxxxx xxxxxxx, market manipulation or abuse, or breach of regulation with reference to, any Relevant Persons or the initiation of any such Proceeding (as defined in the general instructions to Form ADV) against any Relevant Persons; (d) disciplinary information that Subadviser is obligated to disclose to its clients under Item 11 of Form ADV Part 1A or Item 9 of Form ADV Part 2A; (e) material breach of
this Agreement of which the Subadviser is aware; or (f) any other event which could, in the reasonable determination of the Subadviser, have a material adverse effect on the Subadviser’s ability to carry out its obligations to the Company under this Agreement.
B. As reasonably requested by the Trust on behalf of the Trust’s officers and in accordance with the scope of Subadviser’s obligations and responsibilities contained in this Agreement, Subadviser will provide reasonable assistance to the Trust in connection with the Trust’s compliance with the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated by the SEC thereunder, and Rule 38a-1 of the 1940 Act. Such assistance shall include, but not be limited to, (i) providing such reports and certifications as the Chief Compliance Officer of the Fund may reasonably request pursuant to Rules 17j-1 and 38a-1 under the 1940 Act and Rule 206(4)-7 under the Advisers Act; (ii) reasonably facilitating and cooperating with third-party audits arranged by the Trust to evaluate the effectiveness of its compliance controls; (iii) providing the Trust’s chief compliance officer with direct reasonable access to its chief compliance officer; (iv) providing the Trust’s chief compliance officer with such periodic reports as may be reasonably requested to allow the Trust’s chief compliance officer to address in his or her annual written report to the Fund Board pursuant to Rule 38a-1 the operation of the policies and procedures of the Subadviser as they relate to the Subadviser Assets; and (v) providing special reports in the event of “material compliance matters,” as defined by Rule 38a-1(e)(2), relating to the Subadviser Assets, as soon as is reasonably practicable and permitted by applicable law. Further, Subadviser is aware that: (a) the Chief Executive Officer (Principal Executive Officer) and Treasury/Chief Financial Officer (Principal Financial Officer) of the Trust (collectively, “Certifying Officers”) currently are required to certify the Trust’s periodic reports on Form N-CSR pursuant to Rule 30a-2 under the 1940 Act; and (b) the Certifying Officers must rely upon certain matters of fact generated by Subadviser of which they do not have firsthand knowledge. Consequently, Subadviser will provide the Adviser, the Trust or the Fund Board with such information and assurances (including any sub-certifications) as the Adviser, the Trust or the Fund Board may reasonably request from time to time in order to assist the Trust in its preparation of periodic reports on Form N-CSR.
13. Provision of Certain Information by the Adviser. The Adviser shall timely furnish the Subadviser with such additional information as may be reasonably necessary for, and reasonably requested by, the Subadviser to perform its responsibilities pursuant to this Agreement. The Adviser will also promptly notify the Subadviser, as permitted by applicable law: (1) in the event that the SEC, CFTC, NFA or other US or non-US governmental or self-regulatory authority has (i) censured the Adviser, the Trust or the Company; (ii) placed limitations upon either of their activities, functions, or operations which may reasonably be expected to have a material adverse effect on the Adviser’s ability to perform its obligations under this Agreement or have a material adverse effect on the Trust or the Company; (iii) suspended or revoked the Adviser’s registration as an investment adviser; or (iv) has commenced proceedings or an investigation that may reasonably be expected to have a material adverse effect on the Adviser’s ability to perform its obligations under this Agreement; (2) upon having a reasonable basis for believing that the Fund has ceased to qualify or might reasonably be expected to fail to qualify as a regulated investment company under Subchapter M of the Code; or (3) any event which could have a material adverse effect on the Adviser’s ability to carry out its obligations to the Company under this Agreement.
14. Amendment of Agreement. No provision of this Agreement may be changed, waived, discharged, or terminated orally, but only by an instrument in writing signed by both parties.
15. Miscellaneous.
A. Governing Law. This Agreement shall be construed in accordance with the laws of the State of New York, without giving effect to the conflicts of laws principles thereof, and with the 1940 Act. To the extent that the applicable laws of the State of New York conflict with the applicable provisions of the 1940 Act, the latter shall control.
B. Notification of Changes. The Subadviser will notify the Adviser of any “assignment” or actual change in control or management of the Subadviser within the meaning of Section 2(a)(4) and Rule 2a-6 under the 1940 Act, and Section 202(a)(1) and Rule 202(a)(1)-1 under the Advisers Act, in each case prior to or promptly after such change. In addition, the Subadviser will notify the Adviser of any changes in the key personnel of the Subadviser involved in the management and oversight of the Subadviser Assets, including portfolio managers and senior management or any performing a similar role with respect to the Subadviser Assets.
C. Captions. The Captions contained in this Agreement are included for convenience of reference only and in no way define or delimit any of the provisions hereof or otherwise affect their construction or effect.
D. Entire Agreement. This Agreement represents the entire agreement and understanding of the parties hereto and shall supersede any prior agreements between the parties relating to the subject matter hereof.
E. Definitions. Any question of interpretation of any term or provision of this Agreement having a counterpart in or otherwise derived from a term or provision of the 1940 Act shall be resolved by reference to such term or provision of the 1940 Act and to interpretations thereof, if any, by the United States courts or, in the absence of any controlling decision of any such court, by rules, releases or orders of the SEC validly issued pursuant to the 1940 Act. As used in this Agreement, the terms “majority of the outstanding voting securities,” “affiliated person,” “interested person,” “assignment,” “broker,” “investment adviser,” “net assets,” “sale,” “sell,” and “security” shall have the same meaning as such terms have in the 1940 Act, subject to such exemptions as may be granted by the SEC by any rule, release or order. Where the effect of a requirement of the federal securities laws reflected in any provision of this Agreement is made less restrictive by a rule, release, or order of the SEC, whether of special or general application, such provision shall be deemed to incorporate the effect of such rule, release, or order.
F. Notices and Communications. Any notice herein required is to be in writing and is deemed to have been given to Subadviser or Adviser upon receipt of the same at their respective addresses set forth below. All written notices required or permitted to be given under this Agreement will be delivered by personal service, by postage mail return receipt requested, by email or similar means of delivery that provide evidence of receipt.
All notices to Adviser shall be sent to: X.X. Xxxxxx Private Investments Inc., 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxx Xxxxxx email: xxxx.xxxxxx@xxxxxxxx.xxx.
All notices to Subadviser shall be sent to: Pacific Investment Management Company LLC, Newport Beach, CA 92660, Attention: General Counsel; E-mail: XXXxxxxxxx@xxxxx.xxx; cc: Xxxxx Xxxxxxxxxx, Account Manager; E-mail: Xxxxx.Xxxxxxxxxx@xxxxx.xxx
The Adviser confirms that it has provided the Subadviser with at least one valid electronic email address where communications can be sent. The Adviser acknowledges that the Subadviser reserves the right to distribute certain communications via fax, mail or other means to the extent required by applicable law or otherwise deemed advisable. The Adviser may withdraw consent to electronic delivery at any time by giving the Subadviser notice pursuant to this provision.
G. Third-Party Beneficiaries. Each of the Company and the Fund is an intended third-party beneficiary under this Agreement and is entitled to enforce this Agreement as if it were a party thereto. The parties do not intend for this Agreement to benefit any other person, including, without limitation, a record owner or beneficial owner of shares of the Trust or the Fund.
H. Survival. Sections 2B(ix), 2B(x), 2F, 2I, 2K, 2N, 4, 5, 7 (for a period of 1 year), 8, 15A and 15G shall survive the termination of this Agreement.
[Signature page follows]
PURSUANT TO AN EXEMPTION FROM THE COMMODITY FUTURES TRADING COMMISSION IN CONNECTION WITH ACCOUNTS OF QUALIFIED ELIGIBLE PERSONS, THIS ACCOUNT DOCUMENT IS NOT REQUIRED TO BE, AND HAS NOT BEEN, FILED WITH THE COMMISSION. THE COMMODITY FUTURES TRADING COMMISSION DOES NOT PASS UPON THE MERITS OF PARTICIPATING IN A TRADING PROGRAM OR UPON THE ADEQUACY OR ACCURACY OF COMMODITY TRADING ADVISOR DISCLOSURE. CONSEQUENTLY, THE COMMODITY FUTURES TRADING COMMISSION HAS NOT REVIEWED OR APPROVED THIS TRADING PROGRAM OR THIS ACCOUNT DOCUMENT.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their duly authorized signatories to be effective as of the date and year first above written.
| X.X. XXXXXX PRIVATE INVESTMENTS INC. | ||||
| By: |
| |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Managing Director | |||
| PACIFIC INVESTMENT MANAGEMENT COMPANY LLC | ||||
| By: |
| |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Managing Director | |||
Appendix A
In-Kind Securities
Six Circles Credit Opportunities Fund (Cayman) Ltd. (Subadviser Account #[ ])
[Date]
In the event the Adviser desires to include within the Subadviser Assets certain “in-kind” securities (the “In-Kind Securities”) this Appendix A shall apply. A certified list of the In-Kind Securities to be transferred to the Subadviser Assets will be provided to the Subadviser prior to the transfer and, to the extent possible, Subadviser will be provided the opportunity to determine if it can appropriately accept the in-kind securities into the Company. The parties will endeavor at the front end to only accept in-kind securities that are in keeping with the Company’s investment objectives and strategies.
The Adviser acknowledges and agrees that some or all of the In-Kind Securities may have value for the Subadviser Assets and it may be in the Company’s best interest to retain them, but in order to comply with the investment objectives or strategies of the Subadviser Assets, such assets may need to be liquidated at such times and in such manner as is deemed appropriate by Subadviser and the proceeds be invested in compliance with the investment objectives of the Subadviser Assets.
The Adviser acknowledges and agrees that Subadviser will use its commercially reasonable efforts to obtain the best execution. The Subadviser will not be liable to the Adviser or the Company for the prices obtained in connection with any sale of the In-Kind Securities and Adviser acknowledges that such prices may in fact be much lower than the prices at which such In-Kind Securities are presently carried. Subadviser shall maintain a log of all transactions placed through all securities brokerage firms including the name of the firm, a description of each transaction, the date of each transaction and where applicable, the amount of commissions paid.
Subadviser shall invest the proceeds from the sale of the assets, together with any assets remaining unsold, in accordance with the Guidelines. In the event any assets contributed in-kind into the Subadviser Assets are not compliant with the Guidelines for the Subadviser Assets, and cannot be readily sold, the Subadviser will work with the Adviser to assure that the Company and the Fund can continue to operate in conformity with the 1940 Act.
Nothing herein shall be deemed to preclude the Adviser from hiring a transition manager to assist in affecting any in-kind transfers.
