AMENDMENT TO THE FUND MANAGEMENT AGREEMENT
Exhibit (d)(5)(g)
AMENDMENT TO THE
FUND MANAGEMENT AGREEMENT
FUND MANAGEMENT AGREEMENT
THIS AMENDMENT effective as of this 31st day of October, 2013 is made to the Fund Management
Agreement (the “Agreement”) dated September 24, 2001, as amended December 31, 2002, August 5, 2004,
December 9, 2005 and May 1, 2008, by and among Pacific Life Insurance Company, a Nebraska
corporation (“Pacific Life”), Pacific Investment Management Company LLC (“PIMCO” or “Fund
Manager”), a Delaware limited liability company, and Pacific Life Funds, a Delaware Statutory Trust
(the “Trust”), which agreement was transferred and assigned from Pacific Life to Pacific Life Fund
Advisors LLC (“Investment Adviser”), a Delaware Limited Liability Company, on May 1, 2007 and was
amended on that date. The Agreement is hereby amended as set forth below (together, the
“Amendment”), which is effective on October 31, 2013. Capitalized terms not defined herein shall
have the meaning given to them in the Agreement; capitalized terms defined herein shall supersede
terms that reference the same entity(ies) but that are defined differently in the Agreement.
WHEREAS, Investment Adviser, PIMCO and the Trust (collectively, “the Parties” and
individually, a “Party”) are parties to the Agreement;
WHEREAS, the Parties mutually desire to amend the Agreement as set forth herein;
WHEREAS, the Trust has retained the Investment Adviser to render investment advisory services
to the various portfolios of the Trust pursuant to an Advisory Agreement, as amended, (collectively
the portfolios managed by PIMCO are the “Funds” if plural or a “Fund” if singular) and such
Advisory Agreement authorizes the Investment Adviser to engage a subadviser to discharge the
Investment Adviser’s responsibilities with respect to the investment management of such Funds; and
WHEREAS, the Parties desire to amend the Agreement as more particularly described in this
Amendment.
NOW THEREFORE, in consideration of the renewal of the premises, promises and mutual covenants
contained herein and in the Agreement, and for other good and valuable consideration paid, the
receipt and sufficiency of which are hereby acknowledged by the Parties, the Parties agree that the
Agreement is hereby amended as follows:
1. Section 2 (“Fund Manager Duties”) is hereby amended by adding the following before the last
full sentence of the first paragraph:
(i) With respect to trading in restricted currencies, however, PIMCO shall review any trades
executed by the respective Fund’s custodian to determine that they are reasonable and are in
the best interest of the Fund and agrees to promptly notify the Investment Adviser if a
trade does not, in its reasonable determination, meet either criteria. PIMCO is authorized
to open brokerage accounts on behalf of the Funds, in accordance with any applicable written
procedures, policies and guidelines adopted by the Board and furnished to PIMCO (“Trust
procedures”). PIMCO is authorized to enter into futures account agreements, ISDA master
agreements and related documents, and to open accounts and take other necessary or
appropriate actions related thereto, in accordance with Trust procedures.
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(ii) PIMCO is authorized on behalf of the Funds to (i) enter into agreements and execute any
documents (e.g., any derivatives documentation such as exchange traded and over-the-counter,
as applicable) required to make investments pursuant to the Funds’ objectives, investment
policies and investment restrictions as stated in the Trust’s Prospectus and Statement of
Additional Information as amended from time to time which shall include any market and/or
industry standard documentation and the standard representations contained therein; and (ii)
acknowledge the receipt of brokers’ risk disclosure statements, electronic trading
disclosure statements and similar disclosures, in accordance with Trust procedures.
(iii) PIMCO is authorized to effect cross transactions between the Funds and other accounts
managed by PIMCO and its affiliates in accordance with Trust procedures.
2. The following is hereby added as Section 2(b)(6):
and (6) the Commodity Exchange Act and all applicable rules and regulations thereunder,
and releases and interpretations related thereto (including any no-action letters and
exemptive orders which have been granted by the Commodity Futures Trading Commission
(“CFTC”) and/or the National Futures Association (“NFA”) to the Investment Adviser (as
provided to PIMCO by the Investment Adviser), or to PIMCO).
3.
The following is hereby added at the end of Section 2(b):
To the extent that PIMCO engages in transactions that require segregation of assets or
other arrangements, including but not limited to, options, futures contracts, short sales or
borrowing transactions, PIMCO shall earmark those assets to be segregated in accordance with
the 1940 Act, if necessary, based upon trading strategies and positions PIMCO employs on
behalf of the Fund, as well as to segregate assets, if necessary, in accordance with the
1934 Act and any other requirements of broker/dealers who may execute transactions for the
Fund in connection therewith.
4.
Section 2(m) is hereby replaced with the following:
will provide to the Investment Adviser a copy of PIMCO’s Form ADV, and any supplements
or amendments thereto, as filed with the SEC, on an annual basis (or more frequently if
requested by the Investment Adviser or the Board) including any portion which contains
disclosure of legal or regulatory actions. PIMCO represents and warrants that it is a duly
registered investment adviser under the Advisers Act and will notify the Investment Adviser
promptly if any action is brought by any regulatory body which would in PIMCO’s reasonable
determination materially affect that registration. PIMCO will provide a list of persons
whom PIMCO wishes to have authorized to give written and/or oral instructions to custodians
of assets for the Funds.
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5.
Section 2 is hereby amended to add the following:
1. PIMCO has adopted a written Code of Ethics complying with the requirements of Rule
17j-1 under the 1940 Act and Rule 204A-1 under the Advisers Act and will provide the
Investment Adviser and the Trust with a copy of the Code of Ethics, together with evidence
of its adoption. Within 30 days of the end of each calendar quarter during which this
Agreement remains in effect, the president, a vice president, the chief compliance officer,
a managing director, or other senior officer (as the Investment Adviser reasonably
determines appropriate) of PIMCO shall certify to the Investment Adviser that (a) PIMCO had
a Code of Ethics that complied with the requirements of Rule 17j-1 during the previous
calendar quarter, (b) the Code contains procedures reasonably necessary to prevent Access
Persons (as defined in Rule 17j-1, as amended) from violating the Code, and that (c) except
as otherwise disclosed, there have been no material violations of the Code or, if a material
violation has occurred, that appropriate action has been taken in response to such
violation. Upon written request of the Investment Adviser or the Trust, PIMCO shall permit
representatives of the Investment Adviser and the Trust to examine the reports and records
related to the reported material violations with respect to the Fund(s) (or provide
summaries of such reports, with non-public personal information redacted) required to be
made under the Code of Ethics and other records evidencing enforcement of the Code of
Ethics. Notwithstanding anything herein to the contrary, PIMCO shall not redact
any information that would reasonably be considered relevant information to the Investment
Adviser or the Trust for the purpose of the examination, including name or title of a
person.
2. PIMCO will not file class action claim forms or otherwise exercise any rights the
Investment 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 Funds, unless PIMCO and the Investment Adviser mutually agree that the Fund Manager
may take such actions. Upon request by the Investment Adviser, PIMCO will research and
confirm to the Investment Adviser whether the Fund held or traded in a particular security
related to a known class action, on any particular day or during any particular timeframe
within the term of this Agreement, as the Investment Adviser may specify; and PIMCO will
provide relevant trade information or documentation (for example, a schedule of purchases
and sales and/or holdings or trade confirmations) for such security.
3. PIMCO will provide reasonable assistance to the Investment Adviser with respect to
the annual audit of the Trust’s financial statements, including, but not limited to: (i)
providing broker contacts as needed for obtaining trade confirmations (in particular with
respect to investments in loans (including participations and assignments) and all
derivatives, including swaps); (ii) providing copies of all documentation relating to
investments in loans (including participations and assignments) and derivative contracts,
within a reasonable time following request from the Investment Adviser; (iii) providing
assistance in obtaining trade confirmations in the event the Trust or the Trust’s
independent registered public accounting firm is unable to obtain such confirmations
directly from the brokers; and (iv) obtaining market quotations for investments (including
investments in loans (including participations and assignments) and derivatives) that are
not readily ascertainable in the event the Trust or the Trust’s independent registered
public accounting firm is unable to obtain such market quotations through independent means.
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4. PIMCO is registered with the CFTC as a commodity trading adviser and is a member of
the NFA or is exempt from such registration/membership. PIMCO agrees that it will promptly
notify Investment Adviser if PIMCO plans to change its trading strategy with respect to the
Funds in a way that requires the Investment Adviser to register with the CFTC and NFA as a
commodity pool operator. PIMCO agrees to provide reasonable advanced notification (in no
event less than 30 days) to Investment Adviser of the change in trading strategy so that
Investment Adviser has adequate time to comply with all filing and disclosure obligations of
commodity pool operators of the CFTC and NFA. PIMCO agrees that it will provide, upon
request, reasonable assistance and information necessary to Investment Adviser to comply
with such CFTC and NFA requirements. PIMCO also agrees that it will take all actions
required of it by the CFTC and NFA as a result of the change in status, including
registration as a commodity trading adviser.
6.
Section 16 is added to the Agreement:
Representations and Agreement of the Investment Adviser and the Trust: The Investment
Adviser and the Trust represent, warrant and covenant that:
| (i) | The Trust is a “qualified institutional buyer” (“QIB”) as defined in Rule
144A under the Securities Act of 1933, as amended, and the Investment Adviser will
promptly notify PIMCO if the Trust ceases to be a QIB; |
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| (ii) | The assets in the Funds are free from all liens and charges, and undertakes
that no liens or charges will arise from the act or omissions of the Investment
Adviser or the Trust which may prevent PIMCO from giving a first priority lien or
charge on the assets solely in connection with PIMCO’s authority to direct the deposit
of margin or collateral to the extent necessary to meet the obligations any of the
Funds with respect to any investments made pursuant to the Funds’ objectives,
investment policies and investment restrictions as stated in the Trust’s Prospectus
and Statement of Additional Information as amended from time to time; |
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| (iii) | The assets of the Funds do not constitute assets of (a) an employee benefit
plan (as defined in Section 3(3) of the Employee Retirement Income Security Act of
1974 (“ERISA”)), whether or not subject to Title I of ERISA; (b) a plan described in
Section 4975(e)(1) of the Internal Revenue Code; or, (c) an entity whose underlying
assets are assets of a plan described in (a) or (b) by reason of such plan’s
investment in the entity; |
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| (iv) | The Investment Adviser and the Trust have established “know your customer”
policies and procedures that comply with all applicable regulations and which are
reasonably designed to detect and prevent each Client from using PIMCO’s services for
illegal purposes, including to launder money or finance terrorist activities. To the
best of the Investment Adviser’s and Trust’s knowledge, none of the Funds contain
funds derived from unlawful activity and/or violate U.S. anti-money laundering
laws; |
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| (v) | The Investment Adviser and the Trust shall provide PIMCO, in a manner and
with such frequency as is mutually agreed upon by the Parties, with a list of (i) each
“government entity” (as defined in Rule 206(4)-5 under the Investment Advisers Act of
1940), invested in the Funds 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 Trust
as an option to be offered by such 529 Plan; and |
In addition, the Investment Adviser and Trust agree that:
(i) PIMCO may delegate trade execution and other support functions (but not portfolio
management) to its affiliates (including PIMCO Asia Limited, PIMCO Australia Pty Ltd., PIMCO
Asia Pte Ltd., PIMCO Global Advisors (Ireland) Limited, PIMCO Luxembourg IV S.A., PIMCO
Japan Ltd., and PIMCO Europe Ltd.) and may share such information as necessary to accomplish
these purposes. Additionally, PIMCO will have the ability to delegate back office services
to State Street Investment Manager Solutions, LLC and its affiliates. In all cases, PIMCO
shall remain liable as if such services were provided directly. No additional fees shall be
imposed for such services except as otherwise agreed; and
(ii) PIMCO shall have no obligation regarding assets of the Trust other than the Funds for
which it serves as subadviser.
7.
Section 2.2 in Amendment to the Agreement dated August 5, 2004 (“the 2004 Amendment”) is
hereby replaced with the following:
PIMCO will be responsible for meeting its own regulatory obligations, including the
preparation and filing of such reports with respect to the assets of the Fund reflecting
holdings over which PIMCO or its affiliates have investment discretion as may be required
from time to time, including but not limited to Schedule 13G, Form 13F and Form SH.
8.
The first sentence (which is not a full sentence) in Section 2.2 (referenced in the
amendment to the Agreement dated December 9, 2005 (“the 2005 Amendment”)) is hereby replaced with
the following:
will assist the Trust and the Trust’s Chief Compliance Officer (“CCO”) in complying
with Rule 38a-1 under the 1940 Act, including, in the event of any relevant regulatory
exams, providing notice of any material deficiencies that would impact the Funds, and
providing notice of any material changes to business operations that will likely, in PIMCO’s
reasonable determination, adversely affect the services provided by PIMCO under this
Agreement, provided that the provision of such notices are permitted under applicable law.
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9.
Section 2.3 in the 2005 Amendment is hereby deleted in its entirety.
10.
Section 2.4 in the 2005 Amendment is hereby replaced with the following:
will comply with any Trust Procedures, including the Trust’s policy on selective disclosure
of portfolio holdings of the Trust (the “Selective Disclosure Policy”), as provided in
writing to PIMCO and as may be amended from time to time. As such, PIMCO agrees not to
trade on non-public portfolio holdings information of the Trust in a manner inconsistent
with applicable federal and state securities law or applicable international law, including
anti-fraud provisions of such laws, or inconsistent with any internal policy adopted by
PIMCO to govern trading of its employees. Compliance with the Selective Disclosure Policy
includes the requirement of entering into confidentiality agreements with certain third
parties who will receive non-public portfolio holdings of the Trust that meet the minimum
requirements of the Selective Disclosure Policy. PIMCO will provide any such agreements to
the Investment Adviser or the Trust, along with any amendments or supplements thereto, from
time to time on an ongoing basis only if reasonably requested by the Investment Adviser or
the Trust, provided however that PIMCO may provide only those parts of the agreements that
relate to ensuring conformance with the Trust’s Selective Disclosure Policy or other Trust
procedures. PIMCO agrees to provide a certification with respect to compliance with Trust
procedures as may be reasonably requested by the Trust from time to time.
11.
Section 3 (“Expenses”) of the Agreement is hereby replaced with the following:
PIMCO shall bear all expenses incurred by it and its staff with respect to all
activities in connection with the performance of PIMCO’s services under this Agreement, with
the exception of obtaining CICI numbers, including but not limited to salaries, overhead,
travel, preparation of Board materials, review of marketing materials relating to PIMCO or
other information provided by PIMCO to the Investment Adviser and/or the Trust’s
Distributor, and marketing support. PIMCO agrees to pay to the Investment Adviser the cost
of generating a prospectus supplement (also known as a “sticker”), which includes
preparation, filing, printing, and distribution (including mailing, only if necessary) of
the supplement, if PIMCO makes any changes that both Parties agree (provided that consent is
not unreasonably withheld) requires immediate disclosure in the prospectus or any required
regulatory documents by supplement, including changes to its structure or ownership, to
investment personnel, to investment style or management, or otherwise (“Changes”), and at
the time of notification to the Trust by PIMCO of such Changes, the Trust is not generating
a supplement for other purposes or the Trust does not wish to add such Changes to a pending
supplement. Notwithstanding the foregoing, the Investment Adviser may file a supplement
without the explicit consent of PIMCO if such supplement is legally required to be filed.
In the event two or more subadvisers each require a supplement simultaneously, the expense
of each supplement will be shared pro rata with such other subadviser(s) based upon the
number of pages required by each such subadviser. The Investment Adviser agrees to use the
most economical means reasonably available to prepare, produce, and distribute the
“Changes,” and upon request, will furnish to PIMCO proof of those expenses incurred. All
other expenses not
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specifically assumed by the Subadviser hereunder or by the Investment
Adviser under the Advisory Agreement are borne by the applicable Fund of the Trust. The
Trust, PIMCO and the Investment Adviser shall not be considered as partners or participants
in a joint venture.
12.
The following is added at the end of Section 5 (“Books and Records”) of the Agreement:
PIMCO will also maintain and preserve such records related to the Fund’s transactions
as required under the Commodity Exchange Act (including the rules and regulations of the
CFTC and NFA). In compliance with the requirement of and to the extent required by Section
31(a) of the 1940 Act and the rules thereunder, CFTC Regulations 4.23 and 4.33, and NFA Rule
2-10, PIMCO hereby agrees that all records which it maintains for the Fund are the property
of the Trust and further agrees to surrender promptly to the Trust any of such records upon
the Trust’s or the Investment Adviser’s request, although PIMCO may, at its own expense,
make and retain a copy of such records.
13.
Section 14 (“Services of the Fund Manager” and referenced in the amendment to the
Agreement dated May 1, 2008 (“the 2008 Amendment”)) is hereby renumbered Section 15.
Section 14 (“Disclosure about Fund Manager”) as referenced in the 2005 Amendment is replaced
with the following and is renamed Disclosure about PIMCO and Fund:
PIMCO represents that it has reviewed the current Registration Statement and agrees, if
furnished by the Investment Adviser, to promptly review future amendments to the
Registration Statement, including any supplements thereto, which relate to PIMCO or the
Fund, filed with the SEC (or which will be filed with the SEC in the future) and represents
and warrants that, solely with respect to the disclosure respecting or relating to PIMCO or
the Fund that PIMCO has provided to the Trust for inclusion in the Registration Statement,
including any performance information PIMCO provides that is included in or serves as the
basis for information included in the Registration Statement, such portion of the
Registration Statement contains as of the date hereof, and will contain as of the date of
any Registration Statement or supplement thereto that PIMCO reviews, no untrue statement of
any known material fact and does not omit any statement of known material fact which was
required to be stated therein or necessary to make the statements contained therein not
misleading. PIMCO further agrees to notify the Investment Adviser and the Trust immediately
of any material fact about PIMCO and/or the Fund, known to PIMCO respecting or relating to
PIMCO, that is not contained in the Registration Statement or prospectus for the Trust, or
any amendment or supplement thereto, or of any known statement respecting or relating to
PIMCO and/or the Fund contained therein that becomes untrue in any material respect. With
respect to the disclosure respecting the Fund, PIMCO represents and agrees that the
description in the Trust’s prospectus, including the Fund’s goal, investment strategies and
risks (the “Fund Description”), as of the date of this Agreement and as of the date of any
Registration Statement or supplement thereto that PIMCO reviews, is consistent with the
manner in which PIMCO intends to manage the Fund, and the identification of risks is
inclusive of
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all material risks known to PIMCO that are expected to arise in connection with
the manner in which PIMCO intends to manage the Fund. PIMCO further agrees to notify the
Investment Adviser and the Trust promptly in the event that PIMCO becomes aware that the
Fund Description for a Fund is inconsistent in any material respect with the manner in which
PIMCO is managing the Fund, and in the event that the identified risks are inconsistent in
any material respect with the risks known to PIMCO that arise in connection with the manner
in which PIMCO is managing the Fund. In addition, PIMCO agrees to comply with the
Investment Adviser’s reasonable request for information regarding the personnel of PIMCO who
are responsible for the day-to-day management of a Fund’s assets.
14.
The third paragraph of Section 6 (“Indemnification”) of the Agreement is hereby replaced
as follows:
(a) Except as may otherwise be required by the provisions of this Agreement (including
aforementioned in this Section 6), the 1940 Act or the rules thereunder or other applicable
law, the Trust and the Investment Adviser agree that PIMCO, any affiliated person of PIMCO
within the meaning of Section 2(a)(3) of the 1940 Act, and each person, if any, who, within
the meaning of Section 15 of the 1933 Act, controls PIMCO, shall not be liable for, or
subject to any damages, expenses, or losses in connection with, any act or omission
connected with or arising out of any services rendered under this Agreement, except by
reason of PIMCO’s willful misfeasance, bad faith, or gross negligence in the performance of
PIMCO’s duties, or by reason of reckless disregard of PIMCO’s obligations and duties under
this Agreement. Notwithstanding the foregoing, nothing contained in this Agreement shall
constitute a waiver or limitation of rights that the Trust or Investment Adviser may have
under federal or state securities laws.
(b) Except as may otherwise be required by the provisions of this Agreement (including
aforementioned in this Section 6), the 1940 Act or the rules thereunder or other applicable
law, PIMCO agrees that the Trust and the Investment Adviser, any affiliated person thereof
within the meaning of Section 2(a)(3) of the 1940 Act, and each person, if any, who, within
the meaning of Section 15 of the 1933 Act, controls the Trust or Investment Adviser, shall
not be liable for, or subject to any damages, expenses, or losses in connection with, any
act or omission connected with or arising out of any services rendered under this Agreement,
except by reason of the Trust’s or Investment Adviser’s willful misfeasance, bad faith, or
gross negligence in the performance of their duties, or by reason of reckless disregard of
the Trust’s or Investment Adviser’s obligations and duties under this Agreement.
Notwithstanding the foregoing, nothing contained in this Agreement shall constitute a waiver
or limitation of rights that PIMCO may have under federal or state securities laws.
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15.
In the first paragraph of Section 6 (“Indemnification”) of the Agreement, the word
“reasonable” is inserted in the first sentence in the clause (“including legal and other reasonable
expenses”) and the following is hereby added after clause (2) as clauses (3) and (4):
(3) are based upon PIMCO’s breach of any provision of this Agreement, including breach
of any confirmation, representation, warranty or undertaking, or
(4) are based upon breach of its fiduciary duties to the Trust or violation of
applicable law.
16.
In the second paragraph of Section 6 (“Indemnification”) of the Agreement, the word
“reasonable” is inserted in the first sentence in the clause (“including legal and other reasonable
expenses”) and the following is hereby added after clause (2) as clauses (3) and (4):
(3) are based upon the Investment Adviser’s breach of any provision of this Agreement,
including breach of any confirmation, representation, warranty or undertaking, or
(4) are based upon breach of its fiduciary duties to the Trust or violation of
applicable law.
17.
In Section 9 (“Duration and Termination”) of the Agreement, the second sentence is hereby
replaced with the following:
In the event this Agreement is terminated or is not approved in the manner described
above, (i) PIMCO agrees to provide all reports, certification and reasonable assistance
called for pursuant to Sections 2(c) (relating to identifying PFICs), 2(j) (relating to
various Board reports), 2.1 above (as referenced in this Amendment No. 5, relating to
certifications and reports for Code of Ethics), 2.1 (as referenced in the 2004 Amendment,
relating to compliance with Xxxxxxxx-Xxxxx Act of 2002, as amended), 2.2 (as referenced in
the 2004 Amendment, relating to reports like Form 13F), 2.4 (as referenced in the 2004
Amendment, relating to proxy voting) and 2.2 (as referenced in the 2005 Amendment, relating
to compliance program assistance), all as may be amended from time to time, within 30
business days of termination; and (ii) Section 5 for a period of six years, and 2(k), 6, 11,
12, 13, 18, and 20 of this Agreement as well as any applicable provision of this Paragraph
numbered 9, all as may be amended from time to time, shall remain in effect.
18.
Section 12 is hereby replaced with the following:
Notices. All notices, consents, waivers, and other communications under the Agreement,
as amended, shall be in writing and shall be given first via email to the addresses noted
below and then by personal delivery to the applicable Party (which includes via hand
delivery service or a reliable nationally recognized overnight delivery or mail service,
each of which shall provide evidence of receipt to the applicable parties) at the addresses
noted below, or at such other address as each Party hereto may direct by notice given in
accordance with this paragraph. All notices shall be deemed effective the next business day
following delivery in accordance with this paragraph.
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A.
|
if to PIMCO, to: | |
| Pacific Investment Management Company LLC | ||
| 000 Xxxxxxx Xxxxxx Xxxxx | ||
| Xxxxxxx Xxxxx, XX 00000 | ||
| Attention: General Counsel | ||
| Email: XXXxxxxxxx@xxxxx.xxx | ||
| Copy to: Xxxxxxx Xxxxxxx; Xxxx.Xxxxxxx@xxxxx.xxx | ||
B.
|
if to the Investment Adviser, to: | |
| Pacific Life Fund Advisors LLC | ||
| 000 Xxxxxxx Xxxxxx Xxxxx | ||
| Xxxxxxx Xxxxx, XX 00000 | ||
| Attention: Xxxxx X. Xxxxx, Vice President and Fund Advisor General Counsel | ||
| Email: XxxxxxxxXxxxxxxxxxxxx@XxxxxxxXxxx.xxx | ||
| Telephone number: 000-000-0000 | ||
C.
|
if to the Trust, to: | |
| Pacific Life Funds | ||
| c/o Pacific Life Insurance Company | ||
| 000 Xxxxxxx Xxxxxx Xxxxx | ||
| Xxxxxxx Xxxxx, XX 00000 | ||
| Attention: Xxxxx X. Xxxxx, Vice President and Fund Advisor General Counsel | ||
| Email: XxxxxxxxXxxxxxxxxxxxx@XxxxxxxXxxx.xxx | ||
| Telephone number: 000-000-0000 |
19.
Section 13.a is hereby amended by adding the following sentence to the end of the current
section:
The Parties to this Agreement hereby irrevocably agree to submit to the jurisdiction of
the courts located in the State of California for any action or proceeding arising out of
this Agreement, and hereby irrevocably agree that all claims in respect of such action or
proceeding shall be heard or determined in such courts.
20.
A new Section 17 is hereby added as follows:
Compliance. PIMCO agrees that it shall promptly notify the Investment Adviser and the
Trust (i) in the event that the SEC, CFTC, or any banking or other regulatory body has
censured PIMCO; placed limitations upon its activities, functions or operations; suspended
or revoked its registration, if any, or ability to serve as an investment adviser; or has
commenced proceedings or an investigation that can reasonably be expected to result in any
of these actions; (ii) upon having a reasonable basis for believing that a Fund has ceased
to qualify or might not qualify as a regulated investment company under
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Subchapter M of the
Code. PIMCO further agrees to notify the Investment Adviser and Trust promptly of any
material fact known to PIMCO respecting or relating to PIMCO that is not contained in the
Registration Statement, or any amendment or supplement thereto, or of any statement
contained therein that becomes untrue in any material respect.
The Investment Adviser agrees that it shall promptly notify PIMCO (i) in the event that
the SEC has censured the Investment Adviser or the Trust; placed limitations upon either of
their activities, functions, or operations; suspended or revoked the Investment Adviser’s
registration as an investment adviser; or has commenced proceedings or an investigation that
may result in any of these actions; (ii) upon having a reasonable basis for believing that a
Fund has ceased to qualify or might not qualify as a regulated investment company under
Subchapter M of the Code.
21.
A new Section 18 is hereby added as follows:
Limitation of Liability. A copy of the Declaration of Trust for the Trust is on file
with the Secretary of the State of Delaware. The Declaration of Trust has been executed on
behalf of the Trust by a Trustee of the Trust in his capacity as Trustee of the Trust and
not individually. The obligations of this Agreement with respect to the Fund shall be
binding upon the assets and property of each such Fund individually, and not jointly, and
shall not be binding upon any Trustee, officer, employee, agent or shareholder, whether
past, present, or future, of the Trust individually, or upon the Trust generally or upon any
other portfolio of the Trust. For the avoidance of doubt, obligations of the Investment
Adviser hereunder are solely binding upon the Investment Adviser.
22.
A new Section 19 is hereby added as follows:
Other Regulatory Matters. The Trust represents and warrants that it is a qualified
eligible person (“QEP”) as defined in CFTC Rule 4.7 and consents to the Account being
treated as an exempt account under CFTC Rule 4.7. The Investment Adviser represents and
warrants that it is either registered with the CFTC as a commodity pool operator and is a
member of the NFA, where applicable, or is exempt from such registration/membership.
23.
A new Section 20 is hereby added as follows:
Confidentiality. In addition to other provisions of this Agreement related to
confidentiality obligations of the Parties, each Party shall treat all non-public
information about another Party to this Agreement as confidential, proprietary information
of such other Party (“Confidential Information”). Such Confidential Information includes
but is not limited to information about business operations, Trust portfolio holdings,
business and financial information, methods, plans, techniques, processes, documents and
trade secrets of a Party. Each Party shall use Confidential Information only in furtherance
of the purposes of this Agreement, limit access to the Confidential Information within its
organization to those employees who reasonably require access to such Confidential
Information and shall not disclose such Confidential Information to any third parties
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except
as expressly provided for in this Agreement, and otherwise maintain policies and procedures
reasonably designed to prevent disclosure of the Confidential Information. Confidential
Information shall not include anything that (i) is or lawfully becomes in the public domain,
other than as a result of a breach of an obligation hereunder, (ii) is furnished to the
applicable Party by a third party having a lawful right to do so, (iii) was known to the
applicable Party at the time of the disclosure or (iv) is authorized in writing by the Party
whose Confidential Information is to be disclosed. Further, the Parties are authorized to
disclose Confidential Information if required by law or regulatory authorities having
jurisdiction. The disclosing Party shall, if permitted by applicable law, notify the other
Party of such disclosure as soon as reasonably practicable.
Page 12 of 13
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be executed as of the day and
year first written above.
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.
| PACIFIC LIFE FUND ADVISORS LLC | ||||||
By:
|
/s/ Xxxxxx X. Xxxxxxxx | By: | /s/ Xxxx X. Xxxx | |||
| Name: Xxxxxx X. Xxxxxxxx | Name: Xxxx X. Xxxx | |||||
| Title: VP, Fund Advisor Operations | Title: Secretary | |||||
| PACIFIC LIFE FUNDS | ||||||
By:
|
/s/ Xxxxxx X. Xxxxxxxx | By: | /s/ Xxxx X. Xxxx | |||
| Name: Xxxxxx X. Xxxxxxxx | Name: Xxxx X. Xxxx | |||||
| Title: Vice President | Title: Secretary | |||||
| PACIFIC INVESTMENT MANAGEMENT COMPANY LLC | ||||||
By:
|
/s/ Xxxxxx Xxxx | |||||
| Name: Xxxxxx Xxxx | ||||||
| Title: Managing Director | ||||||
Page 13 of 13
