Representations of the Manager. The Manager represents, warrants and agrees that:
(i) Manager is a Delaware limited liability company established pursuant to the laws of the State of Delaware;
(ii) Manager is duly registered as an “investment adviser” under the Investment Advisers Act of 1940 (“Advisers Act”);
(iii) Manager has been duly appointed by the Trustees and Shareholders of the Fund to provide investment services to the Fund as contemplated by the Management Contract.
(iv) the execution, delivery and performance of this Agreement are within Manager’s powers, have been and remain duly authorized by all necessary corporate action and will not violate or constitute a default under any applicable law or regulation or of any decree, order, judgment, agreement or instrument binding on Manager;
(v) no consent (including, but not limited to, exchange control consents) of any applicable governmental authority or body is necessary, except for such consents as have been obtained and are in full force and effect, and all conditions of which have been duly complied with; and
(vi) this Agreement constitutes a legal, valid and binding obligation enforceable against Manager.
Representations of the Manager. The Manager represents and agrees that:
(a) The Manager is registered as an "investment adviser" under the Advisers Act and has provided to the Sub-Adviser a copy of its most recent and complete Form ADV, along with a copy of the Investment Management Agreement between the Manager and the Company and the current Company Prospectus regarding the Portfolio. After any amendment to the documents referenced in this paragraph, the Manager will promptly furnish a copy of such amended document to the Sub-Adviser. In addition, the Manager will provide the Sub-Adviser with notice of proposed changes in the Prospectus and the opportunity to review and comment upon such changes before they are finalized, wherever possible.
(b) The Manager and the Company are currently in material compliance and shall at all times continue to be in material compliance with the relevant requirements of the Advisers Act, the 1940 Act, all applicable state securities laws, and the rules thereunder, as they pertain to the Portfolio.
(c) The Manager shall furnish the Sub-Adviser with a certificate, signed by a duly authorized officer of the Manager that designates the officers or employees of the Manager having authority to act for and on behalf of the Manager in connection with this Agreement. The Manager agrees that, until such time as the Sub-Adviser is otherwise informed in writing by a duly authorized officer of the Manager, the Sub-Adviser shall be authorized and entitled to rely on any notice, instruction, request, order or other communication, given either in writing or orally, and reasonably believed by the Sub-Adviser in good faith to be given by an authorized representative of the Manager.
Representations of the Manager. The Manager represents, warrants and agrees that:
A. The Manager has been duly authorized by the Board of Trustees of the Trust to delegate to the Adviser the provision of investment services to each Portfolio as contemplated hereby.
B. The Manager has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the Investment Company Act and will provide the Adviser with a copy of such code of ethics.
C. The Manager is currently in compliance and shall at all times continue to comply with the requirements imposed upon the Manager by applicable law and regulations.
D. The Manager (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) is not prohibited by the Investment Company Act, the Advisers Act or other law, regulation or order from performing the services contemplated by this Agreement; (iii) to the best of its knowledge, has met and will seek to continue to meet for so long as this Agreement is in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency necessary to be met in order to perform the services contemplated by this Agreement; and (v) will promptly notify the Adviser of the occurrence of any event that would disqualify the Manager from serving as investment manager of an investment company pursuant to Section 9(a) of the Investment Company Act or otherwise. The Manager will also promptly notify the Adviser if it is served or otherwise receives notice of any action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, involving the affairs of the Portfolio(s), provided, however, that routine regulatory examinations shall not be required to be reported by this provision.
Representations of the Manager. The Manager represents, warrants and agrees that:
(i) Manager is a Delaware limited liability company established pursuant to the laws of the State of Delaware;
(ii) Manager is duly registered as an “investment adviser” under the Investment Advisers Act of 1940 (“Advisers Act”);
(iii) Manager has been duly appointed by the Trustees and Shareholders of the Fund to provide investment services to the Fund as contemplated by the Management Contract.
(iv) the execution, delivery and performance of this Agreement are within Manager’s powers, have been and remain duly authorized by all necessary corporate action and will not violate or constitute a default under any applicable law or regulation or of any decree, order, judgment, agreement or instrument binding on Manager;
(v) no consent (including, but not limited to, exchange control consents) of any applicable governmental authority or body is necessary, except for such consents as have been obtained and are in full force and effect, and all conditions of which have been duly complied with;
(vi) Manager will comply with Fidelity's SEC exemptive order to operate passively managed ETFs with respect to any of Manager's obligations therein not expressly delegated to the Subadviser thereunder or hereunder, including Manager's obligations set forth in Appendix B hereto; and
(vii) this Agreement constitutes a legal, valid and binding obligation enforceable against Manager.
Representations of the Manager. The Manager represents and warrants as follows:
(a) The Manager (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) is not prohibited by the 1940 Act or the Advisers Act from performing the services contemplated by this Agreement; (iii) has met and will seek to continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency necessary to be met in order to perform the services contemplated by this Agreement; (iv) has the authority to enter into and perform the services contemplated by this Agreement; and (v) will promptly notify Sub-Adviser of the occurrence of any event that would disqualify the Manager from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act or otherwise.
(b) The Manager agrees that neither it nor any of its affiliates will in any way refer directly or indirectly to its relationship with Sub-Adviser, or any of its affiliates in offering, marketing, or other promotional materials without the prior written consent of Sub-Adviser, which consent shall not be unreasonably withheld.
Representations of the Manager. The Manager represents, warrants and agrees that: (i) Manager is a corporation established pursuant to the laws of the Commonwealth of Massachusetts; (ii) Manager is duly registered as an "investment adviser" under the Investment Advisers Act of 1940 ("Advisers Act"); (iii) Manager has been duly appointed by the Trustees and Shareholders of the Portfolio to provide investment services to the Portfolio as contemplated by the Management Contract.
Representations of the Manager. The Manager represents warrants and agrees that:
(i) It has all requisite power and authority to enter into and perform its obligations under this Agreement, and has taken all necessary corporate action to authorize its execution, delivery and performance of this Agreement; and
(ii) It is registered as an investment adviser under the Advisers Act and will continue to be so registered during the term of this Agreement.
Representations of the Manager. The Manager represents, warrants and agrees that:
A. The Manager has been duly authorized by the Trustees to delegate to the Primary Sub-Adviser and Sub-Adviser the provision of investment services to the Fund as contemplated hereby.
B. Prior to the commencement of Sub-Adviser’s services hereunder, the Manager shall provide Sub-Adviser with current copies of the Trust’s Trust Instrument, By-Laws and Compliance Manual, as well as the Fund’s Prospectus and SAI, as well as other relevant policies and procedures that have been adopted by the Trustees.
Representations of the Manager. The Manager represents and agrees that:
(a) The Manager is registered as an "investment adviser" under the Advisers Act and has provided to the Sub-Adviser a copy of its most recent and complete Form ADV, along with the current Company Prospectus regarding the Portfolio. After any amendment to the documents referenced in this paragraph, the Manager will promptly furnish a copy of such amended document to the Sub-Adviser. In addition, the Manager will provide the Sub-Adviser with notice of proposed changes in the Prospectus and the opportunity to review and comment upon such changes before they are finalized, wherever possible.
(b) The Manager and the Company are currently in material compliance and shall at all times continue to be in material compliance with the relevant requirements of the Advisers Act, the 1940 Act, all applicable state securities laws, and the rules thereunder, as they pertain to the Portfolio.
(c) The Manager shall furnish the Sub-Adviser with a certificate, signed by a duly authorized officer of the Manager that designates the officers or employees of the Manager having authority to act for and on behalf of the Manager in connection with this Agreement. The Manager agrees that, until such time as the Sub-Adviser is otherwise informed in writing by a duly authorized officer of the Manager, the Sub-Adviser shall be authorized and entitled to rely on any notice, instruction, request, order or other communication, given either in writing or orally, and reasonably believed by the Sub-Adviser in good faith to be given by an authorized representative of the Manager.
(d) The Company and the Manager have each provided the Sub-Adviser with a list of their respective affiliates (which list will contain a notation with respect to securities of such affiliates which the Sub-Adviser will be prohibited from purchasing on behalf of the Portfolio) and shall have each provided the Sub-Adviser with a copy of their respective policies and procedures regarding Section 10(f), Section 17(a), Section 17(e) of the 1940 Act, liquidity policies and procedures, valuation policies and procedures, privacy policies and any other policies and procedures necessary or, in the judgment of the Manager, advisable, to enable the Company to comply with its obligations under Rule 38a-1 of the 1940 Act.
Representations of the Manager. Manager represents, warrants and agrees that:
A. Manager has been duly authorized by the Trustees to delegate to Sub-Adviser the provision of investment services to each Fund as contemplated hereby.
B. The Trust has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the Investment Company Act and will provide Sub-Adviser with a copy of such code of ethics.
C. Manager (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) is not prohibited by the Investment Company Act, the Advisers Act or other law, regulation or order from performing the services contemplated by this Agreement, (iii) has met and will seek to continue to meet for so long as this Agreement is in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency necessary to be met in order to perform the services contemplated by this Agreement, (iv) has the full power and authority to enter into and perform the services contemplated by this Agreement, and (v) will promptly notify Sub-Adviser of the occurrence of any event that would disqualify Manager from serving as investment manager of an investment company pursuant to Section 9(a) of the Investment Company Act or otherwise.
D. Manager acknowledges receipt of Part II of Sub-Adviser’s Form ADV at least 48 hours prior to entering into this Agreement, as required by Rule 204-3 under the Advisers Act.
