Duties of the Sub Advisor. (a) The Sub-advisor will, on a discretionary basis and without prior consultation, make decisions with respect to all purchases and sales of securities and other investment assets in each Fund’s Portfolio managed by Sub-advisor under this Agreement, in accordance with: (i) the requirements of the 1940 Act, and the rules and regulations thereunder applicable to the Fund; (ii) the requirements of the Investment Advisers Act of 1940, as amended (“Advisers Act”), and the rules and regulations thereunder applicable to Sub-advisor; (iii) the provisions of Subchapter M of the Internal Revenue Code of 1986, as amended (“IRC”) applicable to “regulated investment companies” and the Fund; (iv) the investment objectives, strategies and limitations of the Fund as provided in the Fund’s Charter Documents and Registration Statement as applicable to the Fund, in each case as amended and updated from time to time and provided in writing to Sub-advisor, (v) Sub-advisor’s compliance policies adopted under Rule 38a-1 promulgated under the 1940 Act, and (vi) such other reasonable, mutually acceptable, instructions relating to the Fund’s Portfolio as the Board or Advisor may from time to time specifically adopt, and provide in writing to Sub-advisor, as being necessary for Sub-advisor to perform its services and other obligations under this Agreement (“Instructions”). Without limiting the foregoing, Advisor and the Trust hereby authorize Sub-advisor to, and Sub-advisor will, (A) formulate and implement a continuous investment program for the Portfolio assets of each Fund, and (B) take the steps that Sub-advisor determines to be reasonably necessary to implement such investment program(s), including, but not limited to, purchasing, holding or selling the securities and other assets included in the Portfolio assets of the Fund, selecting brokers, dealers and other intermediaries, settling and allocating trades, aggregating trades, and seeking to obtain best execution, in each case in accordance with the 1940 Act, the Advisers Act and the rules and regulations thereunder, and Sub-advisor’s applicable compliance policies as in effect from time to time. The Sub-advisor will vote (either directly or through a voting service engaged by Sub-advisor) all proxies for securities included in the Portfolio assets managed by Sub-advisor under this Agreement, and exercise all other voting rights with respect to such securities, in accordance with Sub-advisor’s proxy voting procedures in effect from time to time. With respect to voting, upon written notice to Sub-advisor, the Advisor or the Board may at any time withdraw the authority granted to Sub-advisor pursuant to this Section 3(a) to perform any or all of the voting services contemplated hereby. Advisor shall be responsible for making any Form N-PX filings with respect to the Fund. (b) To carry out such decisions, the Sub-advisor is hereby authorized, as agent and attorney-in-fact for the Trust, for the account of, at the risk of and in the name of the Trust and the Advisor, to place orders and issue instructions with respect to those transactions of each Portfolio. In all purchases, sales and other transactions in securities and other investments for each Portfolio, the Sub-advisor is authorized to exercise full discretion and act for the Trust and Advisor in the same manner and with the same force and effect as the Trust or the Advisor might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions, such as proxy voting with respect to the securities of the Portfolio. The Trust, for itself and each Fund, and the Advisor hereby ratify and confirm as good and effectual, at law or in equity, all that Sub-advisor, and its trustees/directors, officers and employees, may do in the capacity as attorney-in-fact. For the avoidance of doubt, while the Sub-advisor will have authority to act on behalf of the Trust, the Fund or the Advisor in its capacity as attorney-in-fact, the Sub-advisor is not compelled to act in that capacity and may request that the Trust, Fund or Advisor act directly on its own behalf in certain circumstances (e.g., to execute certain documents that the Sub-advisor reasonably believes are more appropriate to be signed directly by the Trust, Fund or Advisor). Any person, partnership, corporation or other legal entity or natural person dealing with Sub-advisor in its capacity as attorney-in-fact hereunder is hereby expressly put on notice that Sub-advisor is acting solely in the capacity as an agent for the Trust, the Fund and/or Advisor, as applicable, and that any such person, partnership, corporation or other legal entity or natural person must look solely to the Trust, the Fund and/or the Advisor, as applicable, for enforcement of any claim against the Trust, the Fund or the Advisor, as Sub-advisor assumes no personal liability whatsoever for obligations of the Trust, the Fund or the Advisor entered into by Sub-advisor in its capacity as attorney-in-fact. In no event will Sub-advisor have the authority to withdraw cash or securities from a Fund or otherwise be deemed to have custody over the assets of any Fund. The Advisor and/or the Trust also shall deliver to Sub-advisor executed copy(ies), signed by authorized representatives of the Advisor and/or the Trust, on behalf of the Fund, of one or more separate limited powers of attorney requested by the Sub-advisor from time to time. (c) Sub-advisor may select brokers, dealers and other intermediaries that are affiliated persons of the Trust, the Fund, Advisor or Sub-advisor, provided that any trade orders placed with any such affiliated person are placed in accordance with the 1940 Act, and the rules and regulations thereunder, and Sub-advisor’s applicable policies and procedures as in effect from time to time. Consistent with Section 28(e) of the Securities and Exchange Act of 1934, as amended, and the Sub-advisor’s applicable compliance policies as in effect from time to time, the Sub-advisor may allocate brokerage on behalf of a Fund to brokers, dealers or other intermediaries that provide brokerage, research or other services or products to the Sub-advisor or its affiliates. In selecting brokers, dealers and other intermediaries, Sub-advisor may also consider the reliability, integrity and financial condition of a broker, dealer or other intermediary, the size of and difficulty in executing a transaction, and other factors that Sub-advisor deems appropriate and consistent with Sub-advisor’s compliance policies as in effect from time to time. (d) The Sub-advisor may (but shall not be obligated to) aggregate sales and purchase orders of the assets of a Portfolio with similar orders being made simultaneously for other accounts advised by the Sub-advisor or its affiliates in accordance with Sub-advisor’s compliance policies as in effect from time to time and applicable law. Whenever the Sub-advisor simultaneously places orders to purchase or sell the same asset on behalf of a Portfolio and one or more other accounts advised by the Sub-advisor, the Sub-advisor will allocate the order as to price and amount among all such accounts in a manner believed to be equitable over time to each account in accordance with Sub-advisor’s compliance policies as in effect from time to time and applicable law. The Trust and Advisor hereby acknowledge that such aggregation of orders may not result in a more favorable price or lower brokerage commissions in all instances. (e) To the extent not prohibited under applicable law, the Sub-advisor will report (either in writing, via teleconference or in person as agreed by Sub-advisor) to the Board at each meeting thereof as reasonably requested by the Advisor or the Board all material changes in each Portfolio since the prior report, and will also keep the Board and the Advisor reasonably informed of important developments affecting the Trust, each Portfolio and the Sub-advisor of which Sub-advisor may become aware, and upon reasonable request, will furnish the Board from time to time with such information as the Sub-advisor may believe appropriate for this purpose, whether concerning the individual companies the securities of which are included in a Portfolio’s holdings, the industries in which such companies engage, the economic, social or political conditions prevailing in each country in which a Portfolio maintains investments, or otherwise. To the extent not prohibited under applicable law, the Sub-advisor will also furnish the Board and the Advisor with such statistical and analytical information with respect to investments of each Portfolio as the Board reasonably may request. In making purchases and sales of securities and other investment assets for each Portfolio, the Sub-advisor will bear in mind (in each case to the extent communicated in writing reasonably in advance to Sub-advisor) the limitations imposed by the Charter Documents and Registration Statement, the limitations in the 1940 Act, the Securities Act, the IRC, as amended, and other laws known by Sub-advisor to be applicable to the provision of its services under this Agreement and the investment objectives, policies and restrictions of the relevant Fund. (f) Notwithstanding anything contained in this Agreement to the contrary, the Sub-advisor may enter into non-advisory service arrangements with its affiliates and other third party contractors in connection with the performance of Sub-advisor’s services and other obligations under this Agreement, including, without limitation, for the provision of certain personnel, services and facilities to the Sub-advisor, provided that such arrangements comply with the 1940 Act (including, if applicable, the requirements of Section 15 of the 1940 Act). The cost of performance of such duties will be borne and paid by the Sub-advisor. Except as permitted under this Agreement, no obligation may be incurred on the Trust’s or Advisor’s behalf in any such respect. (g) As and to the extent reasonably requested, to the extent not prohibited under applicable law, the Sub-advisor will report to the Board and the Advisor all material matters related to the Sub-advisor, including on its compliance with its Code and its compliance policies to its provision of services under this Agreement, and upon the reasonable written request of the Advisor or the Trust, the Sub-advisor shall permit the Advisor and the Trust, or their respective representatives, to examine the reports (or summaries thereof) required to be made to the Sub-advisor under the Code and its compliance policies and procedures. To the extent not prohibited under applicable law, the Sub-advisor will notify the Advisor and the Trust in writing of any change of control of the Sub-advisor at least 60 days prior to any such changes and any changes in the key personnel who are the portfolio manager(s) of a Fund, as promptly as possible, and in any event, to the extent practicable, prior to such change. (h) The Sub-advisor will maintain books and records relating to its Portfolio transactions, placing and allocation of brokerage orders, and its services under this Agreement, as, and for such periods and in such locations, required of an investment advisor to a registered investment company pursuant to Section 31 of the 1940 Act or Section 204 of the Advisers Act and the rules and regulations promulgated thereunder. To the extent required by the 1940 Act, the books and records pertaining to the Trust which are in possession of the Sub-advisor shall be the property of the Trust. The Advisor and the Trust, or their respective representatives, shall have reasonable access to such books and records at all times during the Sub-advisor's normal business hours upon reasonable advance notice and without interruption to Sub-advisor’s business. Upon the reasonable request of the Advisor or the Trust, and at the Trust’s expense, copies of any such books and records shall be provided promptly by the Sub-advisor to the Advisor and the Trust, or their respective representatives. Sub-advisor may retain copies of any or all of such books and records as Sub-advisor reasonably believes necessary for legitimate business purposes and to comply with its obligations under applicable law. (i) The Sub-advisor will reasonably cooperate with each Fund’s independent public registered accounting firm and shall take reasonable action as reasonably agreed between Sub-advisor and Advisor to make all necessary information in Sub-advisor’s possession or control available to the accounting firm for the performance of the accounting firm’s duties. (j) The Sub-advisor will provide, as reasonably agreed between Sub-advisor and Advisor, each Fund’s custodian and fund accountant on each business day with such reasonable information in Sub-advisor’s possession and control relating to all transactions concerning the relevant Portfolio’s assets under the Sub-advisor’s management as the custodian and fund accountant may reasonably request. The Advisor and Trust acknowledge and agree, on behalf of itself and the Fund(s), respectively, that Sub-advisor is not responsible for valuing or pricing the securities and other assets invested in, held by or sold by the Fund (including, without limitation, the Portfolio assets), and that the Trust, Fund, Advisor and Sub-advisor will rely on one or more pricing agents chosen by the Board for prices of the securities and other assets of the Fund (including, without limitation, the Portfolio assets), for any purposes; provided, however, that, in accordance with procedures adopted by the Board, Sub-advisor will cooperate reasonably with the Advisor and, unless prohibited by applicable law or confidentiality obligation, provide such information as the Advisor reasonably may request for purposes of valuing or pricing securities or other assets selected by Sub-advisor for which a readily available market price is not available. (k) For the purpose of complying with Rule 10f-3, Rule 12d3-1 and Rule 17a-10 under the 1940 Act and any other applicable rule or regulation, the Sub-advisor will not, with respect to transactions in securities or other assets for any Portfolio, consult with any other sub-advisor to the relevant Fund or any other series of the Trust to the extent prohibited under or required by the 1940 Act. (l) For the avoidance of doubt, notwithstanding any other provision of this Agreement: (i) The parties agree that Sub-advisor is not being engaged, and shall not be responsible, under this Agreement to provide any commodity advice, or investment advice regarding commodities or commodity interest or to take or refrain from taking any other action that would require Sub-advisor to register as a commodity trading advisor; (ii) The Trust and Advisor agree that Sub-advisor is not the compliance agent for the Trust, Fund or Advisor, may not have access to all of the books and records of the Fund necessary to perform certain compliance testing, and will not be obligated to request any books and records of the Fund not in Sub-advisor’s possession for purposes of compliance testing. To the extent that Sub-advisor has agreed to perform the services specified in this Agreement in accordance with applicable laws, rules or regulations (for example, the 1940 Act and Subchapter M of the IRC), the Charter Documents, Sub-advisor’s policies, or written Instructions, Sub-advisor shall perform such services at times mutually agreed between the Advisor and Sub-advisor based upon Sub-advisor’s books and records with respect to the Portfolio assets of the Fund, which may comprise only a portion of the Fund’s books and records, and shall not be held responsible under this Agreement so long as it performs such services in accordance with this Agreement based upon Sub-advisor’s books and records. In no event shall Sub-advisor be responsible for compliance testing with respect to any assets of the Fund other than the Portfolio assets sub-advised by the Sub-advisor; and (iii) The Trust and Advisor agrees that Sub-advisor shall be afforded a reasonable amount of time to implement any change in applicable law, rule or regulation (but in no event (except after obtaining a proper exem
Appears in 1 contract
Sources: Sub Advisory Agreement (Investment Managers Series Trust)
Duties of the Sub Advisor. Subject to the oversight of the Advisor and the terms and conditions of this Agreement and consistent with the provisions of the Offering Memorandum, the Investment Guidelines, the Charter and Bylaws, the Sub-Advisor will be responsible for implementing the investment strategy of the Company. The Sub-Advisor will perform (or cause to be performed through one or more of its Affiliates or third parties) such services and activities relating to the selection of investments and rendering investment advice to the Company as may be appropriate or otherwise mutually agreed from time to time (but subject in all cases to the terms and conditions of the Advisory Agreement), which shall include the following, each subject to the oversight of the Advisor:
(a) The on behalf of the Advisor, investigate, select, engage such persons as the Sub-advisor willAdvisor deems necessary to the proper performance of its obligations hereunder, on a discretionary basis including but not limited to consultants, correspondents, lenders, technical advisers, attorneys, brokers, underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection, insurers, insurance agents, banks, securities investment advisors, mortgagors, mortgage servicing companies, any and without prior consultationall agents for any of the foregoing, make decisions or other persons (including Affiliates of the Sub-Advisor) acting in any capacity deemed by the Sub-Advisor necessary or desirable for the performance of any of the foregoing services, including but not limited to entering into contracts in the name of the Company with any of the foregoing;
(b) subject to the Investment Guidelines, exercise investment discretion with respect to all purchases the origination, acquisition, and sales disposition of Investments or arranging for any issuance of mortgage-backed securities from pools of mortgage loans or mortgage-backed securities owned by the Company or any its subsidiaries consistent with the business objectives and other policies of the Company and in connection with any borrowings proposed to be undertaken by the Company;
(c) subject to the provisions of Section 4 hereof, on behalf of the Company, identify potential opportunities for investments consistent with the Company’s investment assets in each Fund’s Portfolio managed by Sub-advisor under this Agreementobjectives and policies, in accordance withincluding but not limited to: (i) the requirements of the 1940 Actlocate, analyze, perform due diligence on and the rules and regulations thereunder applicable to the Fundselect potential Investments; (ii) structure and negotiate the requirements terms and conditions of the Investment Advisers Act transactions pursuant to which originations, acquisitions and dispositions of 1940, as amended (“Advisers Act”), and the rules and regulations thereunder applicable to Sub-advisorInvestments will be made; (iii) arrange for financing and refinancing and make other changes in the provisions Investments or capital structure of, and dispose of, reinvest the proceeds from the sale of, or otherwise deal with originations, acquisitions or securitizations of Subchapter M of the Internal Revenue Code of 1986, as amended (“IRC”) applicable to “regulated investment companies” and the FundInvestments; (iv) coordinate and manage operations of any co-investment interests held by the Company and conducting matters with co-investment objectives, strategies partners; and limitations of the Fund as provided in the Fund’s Charter Documents and Registration Statement as applicable to the Fund, in each case as amended and updated from time to time and provided in writing to Sub-advisor, (v) Sub-advisor’s compliance policies adopted under Rule 38a-1 promulgated under determine the 1940 Actcomposition of the Investments, the nature and (vi) such other reasonable, mutually acceptable, instructions relating to timing of the Fund’s Portfolio as the Board or Advisor may from time to time specifically adopt, and provide in writing to Sub-advisor, as being necessary for Sub-advisor to perform its services and other obligations under this Agreement (“Instructions”). Without limiting the foregoing, Advisor changes therein and the Trust hereby authorize Sub-advisor to, manner of implementing such changes;
(d) monitor and Sub-advisor will, (A) formulate and implement a continuous investment program for manage the Portfolio assets of each Fund, and (B) take the steps that Sub-advisor determines to be reasonably necessary to implement Investments whether such investment program(s)Investments are held directly or indirectly, including, but not limited to, purchasingwith respect to mortgage loans, holding or selling the mortgage-related securities, real estate, real estate securities and other assets included real estate-related assets;
(e) upon reasonable request by the Board or the Advisor, provide the Company and/or the Advisor with periodic reports regarding prospective business opportunities;
(f) upon reasonable request by the Board or the Advisor, make reports to the Board regarding the Sub-Advisor’s performance of services to the Advisor and the Company under the terms of this Agreement;
(g) oversee all claims, disputes or controversies (including all litigation, arbitration, settlement or other proceedings or negotiations) involving the Investments that Sub-Advisor deems reasonably likely to have a material impact on the Company;
(h) support the Company’s capital raising efforts, including without limitation, to be reasonably available to support any placement agent’s or dealer manager’s marketing, syndicate building and placement process, it being understood that such placement agent or dealer manager will lead all day-to-day capital raising efforts;
(i) provide reasonable sales and due diligence support as reasonably requested by the placement agent or dealer manager, as applicable, including, as reasonably requested, onsite sales education for wholesalers at their location or field visits with wholesalers, key broker-dealer or registered investment advisor accounts;
(j) participate in the Portfolio assets fair valuation process for Investments pursuant to the Valuation Guidelines, including making supportable recommendations of fair values to the Advisor for all investments for which publicly observable prices are not available;
(k) provide such assistance as reasonably requested by the Company in calculating the fair value of the Fundportfolio, selecting brokersas of the last Business Day of each month, dealers and other intermediaries, settling and allocating trades, aggregating trades, and seeking to obtain best execution, used in the NAV per Share for each case Share class in accordance with the 1940 Act, the Advisers Act and the rules and regulations thereunder, and Sub-advisor’s applicable compliance policies as in effect from time to time. The Sub-advisor will vote Valuation Guidelines;
(either directly or through a voting service engaged by Sub-advisorl) all proxies for securities included participate in the Portfolio assets managed review of draft financial statements and registration statements prepared by Sub-advisor under this Agreement, and exercise all other voting rights with respect the administrator to such securities, in accordance with Sub-advisor’s proxy voting procedures in effect from time to time. With respect to voting, upon written notice to Sub-advisor, ensure that the Advisor or the Board may at any time withdraw the authority granted to Sub-advisor pursuant to this Section 3(a) to perform any or all of the voting services contemplated hereby. Advisor shall be responsible for making any Form N-PX filings with respect to the Fund.
(b) To carry out such decisions, information presented regarding the Sub-advisor is hereby authorized, as agent Advisor or its Affiliates and attorney-in-fact for the Trust, for the account of, at the risk Company’s underlying Investments are accurate and not misleading;
(m) upon reasonable request of and in the name of the Trust and the Advisor, participate in presentations to place orders (i) managing dealer or placement agent wholesaling personnel; (ii) broker-dealer and issue instructions with respect to those transactions of each Portfolio. In all purchases, sales registered investment adviser and other transactions in securities distribution intermediaries road shows; (iii) educational forums; (iv) due diligence review programs conducted by third-party evaluators and due diligence officers of broker-dealers; and (v) other investments for each Portfolio, marketing events and forums to facilitate the Sub-advisor is authorized to exercise full discretion and act for the Trust and Advisor in the same manner and with the same force and effect as the Trust or the Advisor might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions, such as proxy voting with respect to the securities of the Portfolio. The Trust, for itself and each Fund, and the Advisor hereby ratify and confirm as good and effectual, at law or in equity, all that Sub-advisor, and its trustees/directors, officers and employees, may do in the capacity as attorney-in-fact. For the avoidance of doubt, while the Sub-advisor will have authority to act on behalf of the Trust, the Fund or the Advisor in its capacity as attorney-in-fact, the Sub-advisor is not compelled to act in that capacity and may request that the Trust, Fund or Advisor act directly on its own behalf in certain circumstances (e.g., to execute certain documents that the Sub-advisor reasonably believes are more appropriate to be signed directly by the Trust, Fund or Advisor). Any person, partnership, corporation or other legal entity or natural person dealing with Sub-advisor in its capacity as attorney-in-fact hereunder is hereby expressly put on notice that Sub-advisor is acting solely in the capacity as an agent for the Trust, the Fund and/or Advisor, as applicable, and that any such person, partnership, corporation or other legal entity or natural person must look solely to the Trust, the Fund and/or the Advisor, as applicable, for enforcement of any claim against the Trust, the Fund or the Advisor, as Sub-advisor assumes no personal liability whatsoever for obligations of the Trust, the Fund or the Advisor entered into by Sub-advisor in its capacity as attorney-in-fact. In no event will Sub-advisor have the authority to withdraw cash or securities from a Fund or otherwise be deemed to have custody over the assets of any Fund. The Advisor and/or the Trust also shall deliver to Sub-advisor executed copy(ies), signed by authorized representatives of the Advisor and/or the Trust, on behalf of the Fund, of one or more separate limited powers of attorney requested by the Sub-advisor from time to time.Company’s fund raising efforts; and
(cn) Sub-advisor may select brokers, dealers and other intermediaries that are affiliated persons of the Trust, the Fund, Advisor or Sub-advisor, provided that any trade orders placed with any perform such affiliated person are placed in accordance with the 1940 Act, and the rules and regulations thereunder, and Sub-advisor’s applicable policies and procedures as in effect from time to time. Consistent with Section 28(e) of the Securities and Exchange Act of 1934, as amended, and the Sub-advisor’s applicable compliance policies as in effect from time to time, the Sub-advisor may allocate brokerage on behalf of a Fund to brokers, dealers or other intermediaries that provide brokerage, research or other services or products to the Sub-advisor or its affiliates. In selecting brokers, dealers and other intermediaries, Sub-advisor as may also consider the reliability, integrity and financial condition of a broker, dealer or other intermediary, the size of and difficulty in executing a transaction, and other factors that Sub-advisor deems appropriate and consistent with Sub-advisor’s compliance policies as in effect from time to time.
(d) The Sub-advisor may (but shall not be obligated to) aggregate sales and purchase orders of the assets of a Portfolio with similar orders being made simultaneously for other accounts advised by the Sub-advisor or its affiliates in accordance with Sub-advisor’s compliance policies as in effect required from time to time and applicable law. Whenever the Sub-advisor simultaneously places orders mutually agreed to purchase or sell the same asset on behalf of a Portfolio and one or more other accounts advised by the Sub-advisor, parties hereto relating to the Sub-advisor will allocate management of the order as to price and amount among all such accounts in a manner believed to be equitable over time to each account in accordance with Sub-advisorCompany’s compliance policies as in effect from time to time and applicable lawInvestments. The Trust and Advisor hereby acknowledge that such aggregation of orders may not result in investment process is a more favorable price or lower brokerage commissions in all instances.
(e) To the extent not prohibited under applicable law, the Sub-advisor will report (either in writing, via teleconference or in person as agreed by Sub-advisor) to the Board at each meeting thereof as reasonably requested by the Advisor or the Board all material changes in each Portfolio since the prior report, and will also keep the Board and the Advisor reasonably informed of important developments affecting the Trust, each Portfolio and the Sub-advisor of which Sub-advisor may become aware, and upon reasonable request, will furnish the Board from time to time with such information as the Sub-advisor may believe appropriate for this purpose, whether concerning the individual companies the securities of which are included in a Portfolio’s holdings, the industries in which such companies engage, the economic, social or political conditions prevailing in each country in which a Portfolio maintains investments, or otherwise. To the extent not prohibited under applicable law, the Sub-advisor will also furnish the Board and the Advisor with such statistical and analytical information with respect to investments of each Portfolio as the Board reasonably may request. In making purchases and sales of securities and other investment assets for each Portfolio, the Sub-advisor will bear in mind (in each case to the extent communicated in writing reasonably in advance to Sub-advisor) the limitations imposed by the Charter Documents and Registration Statement, the limitations in the 1940 Act, the Securities Act, the IRC, as amended, and other laws known by Sub-advisor to be applicable to the provision of its services under this Agreement and the investment objectives, policies and restrictions of the relevant Fund.
(f) Notwithstanding anything contained in this Agreement to the contrary, the Sub-advisor may enter into non-advisory service arrangements with its affiliates and other third party contractors in connection with the performance of Sub-advisor’s services and other obligations under this Agreement, including, without limitation, for the provision of certain personnel, services and facilities to the Sub-advisor, provided that such arrangements comply with the 1940 Act (including, if applicable, the requirements of Section 15 of the 1940 Act). The cost of performance of such duties will be borne and paid by the Sub-advisor. Except as permitted under this Agreement, no obligation may be incurred on the Trust’s or Advisor’s behalf in any such respect.
(g) As and to the extent reasonably requested, to the extent not prohibited under applicable law, the Sub-advisor will report to the Board and the Advisor all material matters related to the Sub-advisor, including on its compliance with its Code and its compliance policies to its provision of services under this Agreement, and upon the reasonable written request of the Advisor or the Trust, the Sub-advisor shall permit the Advisor and the Trust, or their respective representatives, to examine the reports (or summaries thereof) required to be made to the Sub-advisor under the Code and its compliance policies and procedures. To the extent not prohibited under applicable law, the Sub-advisor will notify the Advisor and the Trust in writing of any change of control of the Sub-advisor at least 60 days prior to any such changes and any changes in the key personnel who are the portfolio manager(s) of a Fund, as promptly as possible, and in any event, to the extent practicable, prior to such change.
(h) The Sub-advisor will maintain books and records relating to its Portfolio transactions, placing and allocation of brokerage orders, and its services under this Agreement, as, and for such periods and in such locations, required of an investment advisor to a registered investment company pursuant to Section 31 of the 1940 Act or Section 204 of the Advisers Act and the rules and regulations promulgated thereunder. To the extent required by the 1940 Act, the books and records pertaining to the Trust which are in possession of the Sub-advisor shall be the property of the Trust. The Advisor and the Trust, or their respective representatives, shall have reasonable access to such books and records at all times during the Sub-advisor's normal business hours upon reasonable advance notice and without interruption to Sub-advisor’s business. Upon the reasonable request of the Advisor or the Trust, and at the Trust’s expense, copies of any such books and records shall be provided promptly by the Sub-advisor to the Advisor and the Trust, or their respective representatives. Sub-advisor may retain copies of any or all of such books and records as Sub-advisor reasonably believes necessary for legitimate business purposes and to comply with its obligations under applicable law.
(i) The Sub-advisor will reasonably cooperate with each Fund’s independent public registered accounting firm and shall take reasonable action as reasonably agreed between Sub-advisor and Advisor to make all necessary information in Sub-advisor’s possession or control available to the accounting firm for the performance of the accounting firm’s duties.
(j) The Sub-advisor will provide, as reasonably agreed between Sub-advisor and Advisor, each Fund’s custodian and fund accountant on each business day with such reasonable information in Sub-advisor’s possession and control relating to all transactions concerning the relevant Portfolio’s assets under the Sub-advisor’s management as the custodian and fund accountant may reasonably request. The Advisor and Trust acknowledge and agree, on behalf of itself and the Fund(s), respectively, that Sub-advisor is not responsible for valuing or pricing the securities and other assets invested in, held by or sold by the Fund (including, without limitation, the Portfolio assets), and that the Trust, Fund, Advisor and Sub-advisor will rely on one or more pricing agents chosen by the Board for prices of the securities and other assets of the Fund (including, without limitation, the Portfolio assets), for any purposes; provided, however, that, in accordance with procedures adopted by the Board, Sub-advisor will cooperate reasonably with the Advisor and, unless prohibited by applicable law or confidentiality obligation, provide such information as the Advisor reasonably may request for purposes of valuing or pricing securities or other assets selected by Sub-advisor for which a readily available market price is not available.
(k) For the purpose of complying with Rule 10f-3, Rule 12d3-1 and Rule 17a-10 under the 1940 Act and any other applicable rule or regulation, the Sub-advisor will not, with respect to transactions in securities or other assets for any Portfolio, consult with any other sub-advisor to the relevant Fund or any other series of the Trust to the extent prohibited under or required by the 1940 Act.
(l) For the avoidance of doubt, notwithstanding any other provision of this Agreement:
(i) The parties agree that Sub-advisor is not being engaged, and shall not be responsible, under this Agreement to provide any commodity advice, or investment advice regarding commodities or commodity interest or to take or refrain from taking any other action that would require Sub-advisor to register as a commodity trading advisor;
(ii) The Trust and Advisor agree that Sub-advisor is not the compliance agent for the Trust, Fund or Advisor, may not have access to all of the books and records of the Fund necessary to perform certain compliance testing, and will not be obligated to request any books and records of the Fund not in Sub-advisor’s possession for purposes of compliance testing. To the extent that Sub-advisor has agreed to perform the services specified in this Agreement in accordance with applicable laws, rules or regulations (for example, the 1940 Act and Subchapter M of the IRC), the Charter Documents, Sub-advisor’s policies, or written Instructions, Sub-advisor shall perform such services at times mutually agreed collaborative effort between the Advisor and Sub-advisor based upon Sub-advisor’s books and records Advisor, with respect to which the Portfolio assets of the Fund, which may comprise only a portion of the Fund’s books and records, and shall not be held responsible under this Agreement so long as it performs such services in accordance with this Agreement based upon Sub-advisor’s books and records. In no event shall Sub-advisor be responsible for compliance testing with respect to any assets of the Fund other than the Portfolio assets sub-advised by Advisor will monitor the Sub-advisor; and
(iii) The Trust Advisor and Advisor agrees that provide input to the Board on the Investment Guidelines and the Sub-advisor Advisor will exercise investment discretion to determine the Investments that the Company will originate, acquire and dispose of. In addition, certain joint investments or co-investments by the Company with the Sub-Advisor or its Affiliates will require the prior approval of the Board, including a majority of the Independent Directors, to the extent set forth in the Investment Guidelines and required under Section 8(d) below. All investment decisions and approvals shall be afforded a reasonable amount of time to implement any change comply in applicable law, rule or regulation (but in no event (except after obtaining a proper exemall respects with the Advisor’s and Sub-Advisor’s investment approval policies.
Appears in 1 contract
Sources: Sub Advisory Agreement (CNL Strategic Residential Credit, Inc.)
Duties of the Sub Advisor. (a) The Sub-advisor will, on a discretionary basis and without prior consultation, make decisions with respect Advisor undertakes to all purchases and sales of securities and other investment assets in each Fund’s Portfolio managed by Sub-advisor under this Agreement, in accordance with: (i) the requirements of the 1940 Act, and the rules and regulations thereunder applicable to the Fund; (ii) the requirements of the Investment Advisers Act of 1940, as amended (“Advisers Act”), and the rules and regulations thereunder applicable to Sub-advisor; (iii) the provisions of Subchapter M of the Internal Revenue Code of 1986, as amended (“IRC”) applicable to “regulated investment companies” and the Fund; (iv) the investment objectives, strategies and limitations of the Fund as provided in the Fund’s Charter Documents and Registration Statement as applicable to the Fund, in each case as amended and updated from time to time and provided in writing to Sub-advisor, (v) Sub-advisor’s compliance policies adopted under Rule 38a-1 promulgated under the 1940 Act, and (vi) such other reasonable, mutually acceptable, instructions relating to the Fund’s Portfolio as the Board or Advisor may from time to time specifically adopt, and provide in writing to Sub-advisor, as being necessary for Sub-advisor use its commercially reasonable efforts to perform its services and other obligations under as set forth in this Agreement (“Instructions”). Without limiting the foregoing, Advisor and the Trust hereby authorize Sub-advisor toAdvisory Agreement, subject to the limitations set forth in this Sub-Advisory Agreement, including Sections 3 and 8, and Sub-advisor will, (A) formulate and implement a continuous investment program for subject to the Portfolio assets of each Fund, and (B) take the steps that Sub-advisor determines to be reasonably necessary to implement such investment program(s), including, but not limited to, purchasing, holding or selling the securities and other assets included limitations set forth in the Portfolio assets of the Fund, selecting brokers, dealers and other intermediaries, settling and allocating trades, aggregating trades, and seeking to obtain best execution, in each case in accordance with the 1940 Act, the Advisers Act and the rules and regulations thereunder, and Sub-advisor’s applicable compliance policies as in effect from time to timeAdvisory Agreement. The Sub-advisor will vote (Advisor shall, either directly or through by engaging an Affiliate or a voting service engaged third party, or by Sub-advisorcausing a Property’s Tenant to do so, perform the following duties:
(a) all proxies for securities included in the Portfolio assets managed by Sub-advisor under this Agreement, and exercise all other voting rights with respect Presenting to such securities, in accordance with Sub-advisor’s proxy voting procedures in effect from time to time. With respect to voting, upon written notice to Sub-advisor, the Advisor or potential Properties and investments opportunities to provide a continuing and suitable investment program consistent with the Board may at any time withdraw the authority granted to Sub-advisor pursuant to this Section 3(a) to perform any or all investment objectives and policies of the voting services contemplated hereby. Advisor shall be responsible for making any Form N-PX filings with respect to the Fund.Company;
(b) To carry out such decisionsIdentifying and underwriting Properties for acquisition, the Sub-advisor is hereby authorized, as agent and attorney-in-fact for the Trust, for the account of, at the risk of and in the name of the Trust and the Advisor, development and/or leasing to place orders and issue instructions with respect present to those transactions of each Portfolio. In all purchases, sales and other transactions in securities and other investments for each Portfolio, the Sub-advisor is authorized to exercise full discretion and act for the Trust and Advisor in the same manner and with the same force and effect as the Trust or the Advisor might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental to the furtherance or conduct of such purchases, sales or other transactions, such as proxy voting with respect to the securities of the Portfolio. The Trust, for itself and each Fund, and the Advisor hereby ratify and confirm as good and effectual, at law or in equity, all that Sub-advisor, and its trustees/directors, officers and employees, may do in the capacity as attorney-in-fact. For the avoidance of doubt, while the Sub-advisor will have authority to act on behalf of the Trust, the Fund or the Advisor in its capacity as attorney-in-fact, the Sub-advisor is not compelled to act in that capacity and may request that the Trust, Fund or Advisor act directly on its own behalf in certain circumstances (e.g., to execute certain documents that the Sub-advisor reasonably believes are more appropriate to be signed directly by the Trust, Fund or Advisor). Any person, partnership, corporation or other legal entity or natural person dealing with Sub-advisor in its capacity as attorney-in-fact hereunder is hereby expressly put on notice that Sub-advisor is acting solely in the capacity as an agent for the Trust, the Fund and/or Advisor, as applicable, and that any such person, partnership, corporation or other legal entity or natural person must look solely to the Trust, the Fund and/or the Advisor, as applicable, for enforcement of any claim against the Trust, the Fund or the Advisor, as Sub-advisor assumes no personal liability whatsoever for obligations of the Trust, the Fund or the Advisor entered into by Sub-advisor in its capacity as attorney-in-fact. In no event will Sub-advisor have the authority to withdraw cash or securities from a Fund or otherwise be deemed to have custody over the assets of any Fund. The Advisor and/or the Trust also shall deliver to Sub-advisor executed copy(ies), signed by authorized representatives of the Advisor and/or the Trust, on behalf of the Fund, of one or more separate limited powers of attorney requested by the Sub-advisor from time to time.approval;
(c) SubOnce such Properties are approved, structuring, pursuing, negotiating, contracting for, performing due diligence on, obtaining debt financing for and acquiring and/or developing Properties;
(d) Managing the Properties on a day-advisor may select brokersto-day basis including negotiating with Tenants, dealers prospective Tenants and other intermediaries that are affiliated persons of service providers;
(e) Performing all accounting and reporting functions for the Trust, the Fund, Advisor or Sub-advisor, Properties (provided that any trade orders placed with any such affiliated person are placed in accordance with the 1940 Act, and the rules and regulations thereunder, and Sub-advisor’s applicable policies and procedures as in effect from time to time. Consistent with Section 28(e) of the Securities and Exchange Act of 1934, as amended, and however the Sub-advisorAdvisor shall not be responsible for REIT level accounting and reporting requirements but will comply with the Advisor’s applicable compliance policies reporting requirements);
(f) Once approved by the Advisor and the Company, disposing of the Properties;
(g) Fulfilling any Advisor duties as set forth in effect from time to timethe Alliance Agreement that the Advisor reasonably delegates, with all necessary Company and Board of Directors’ approval and within the overall scope of this Sub-advisor may allocate brokerage on behalf of a Fund to brokersAdvisory Agreement, dealers or other intermediaries that provide brokerage, research or other services or products to the Sub-advisor or its affiliates. In selecting brokers, dealers and other intermediaries, Sub-advisor may also consider Advisor in connection with the reliability, integrity and financial condition of a broker, dealer or other intermediary, the size of and difficulty in executing a transaction, and other factors that Sub-advisor deems appropriate and consistent with Sub-advisor’s compliance policies as in effect from time to time.Properties;
(dh) The Sub-advisor may (but shall not be obligated to) aggregate sales and purchase orders of the assets of a Portfolio with similar orders being made simultaneously for Performing all other accounts advised by the Sub-advisor or its affiliates in accordance with Sub-advisor’s compliance policies as in effect from time to time and applicable law. Whenever the Sub-advisor simultaneously places orders to purchase or sell the same asset on behalf of a Portfolio and one or more other accounts advised by the Sub-advisor, the Sub-advisor will allocate the order as to price and amount among all such accounts in a manner believed to be equitable over time to each account in accordance with Sub-advisor’s compliance policies as in effect from time to time and applicable law. The Trust and Advisor hereby acknowledge that such aggregation of orders may not result in a more favorable price or lower brokerage commissions in all instances.
(e) To the extent not prohibited under applicable law, the Sub-advisor will report (either in writing, via teleconference or in person as agreed by Sub-advisor) to the Board at each meeting thereof as services reasonably requested by the Advisor or within the Board all material changes in each Portfolio since the prior report, and will also keep the Board and the Advisor reasonably informed of important developments affecting the Trust, each Portfolio and the Sub-advisor of which Sub-advisor may become aware, and upon reasonable request, will furnish the Board from time to time with such information as the Sub-advisor may believe appropriate for this purpose, whether concerning the individual companies the securities of which are included in a Portfolio’s holdings, the industries in which such companies engage, the economic, social or political conditions prevailing in each country in which a Portfolio maintains investments, or otherwise. To the extent not prohibited under applicable law, the Sub-advisor will also furnish the Board and the Advisor with such statistical and analytical information with respect to investments of each Portfolio as the Board reasonably may request. In making purchases and sales of securities and other investment assets for each Portfolio, the Sub-advisor will bear in mind (in each case to the extent communicated in writing reasonably in advance to Sub-advisor) the limitations imposed by the Charter Documents and Registration Statement, the limitations in the 1940 Act, the Securities Act, the IRC, as amended, and other laws known by Sub-advisor to be applicable to the provision of its services under this Agreement and the investment objectives, policies and restrictions of the relevant Fund.
(f) Notwithstanding anything contained in this Agreement to the contrary, the Sub-advisor may enter into non-advisory service arrangements with its affiliates and other third party contractors in connection with the performance of Sub-advisor’s services and other obligations under this Agreement, including, without limitation, for the provision of certain personnel, services and facilities to the Sub-advisor, provided that such arrangements comply with the 1940 Act (including, if applicable, the requirements of Section 15 of the 1940 Act). The cost of performance of such duties will be borne and paid by the Sub-advisor. Except as permitted under this Agreement, no obligation may be incurred on the Trust’s or Advisor’s behalf in any such respect.
(g) As and to the extent reasonably requested, to the extent not prohibited under applicable law, the Sub-advisor will report to the Board and the Advisor all material matters related to the Sub-advisor, including on its compliance with its Code and its compliance policies to its provision of services under this Agreement, and upon the reasonable written request of the Advisor or the Trust, the Sub-advisor shall permit the Advisor and the Trust, or their respective representatives, to examine the reports (or summaries thereof) required to be made to the Sub-advisor under the Code and its compliance policies and procedures. To the extent not prohibited under applicable law, the Sub-advisor will notify the Advisor and the Trust in writing of any change of control overall scope of the Sub-advisor at least 60 days prior to any such changes and any changes in the key personnel who are the portfolio manager(s) of a Fund, as promptly as possible, and in any event, to the extent practicable, prior to such changeAdvisory Agreement.
(h) The Sub-advisor will maintain books and records relating to its Portfolio transactions, placing and allocation of brokerage orders, and its services under this Agreement, as, and for such periods and in such locations, required of an investment advisor to a registered investment company pursuant to Section 31 of the 1940 Act or Section 204 of the Advisers Act and the rules and regulations promulgated thereunder. To the extent required by the 1940 Act, the books and records pertaining to the Trust which are in possession of the Sub-advisor shall be the property of the Trust. The Advisor and the Trust, or their respective representatives, shall have reasonable access to such books and records at all times during the Sub-advisor's normal business hours upon reasonable advance notice and without interruption to Sub-advisor’s business. Upon the reasonable request of the Advisor or the Trust, and at the Trust’s expense, copies of any such books and records shall be provided promptly by the Sub-advisor to the Advisor and the Trust, or their respective representatives. Sub-advisor may retain copies of any or all of such books and records as Sub-advisor reasonably believes necessary for legitimate business purposes and to comply with its obligations under applicable law.
(i) The Sub-advisor will reasonably cooperate with each Fund’s independent public registered accounting firm and shall take reasonable action as reasonably agreed between Sub-advisor and Advisor to make all necessary information in Sub-advisor’s possession or control available to the accounting firm for the performance of the accounting firm’s duties.
(j) The Sub-advisor will provide, as reasonably agreed between Sub-advisor and Advisor, each Fund’s custodian and fund accountant on each business day with such reasonable information in Sub-advisor’s possession and control relating to all transactions concerning the relevant Portfolio’s assets under the Sub-advisor’s management as the custodian and fund accountant may reasonably request. The Advisor and Trust acknowledge and agree, on behalf of itself and the Fund(s), respectively, that Sub-advisor is not responsible for valuing or pricing the securities and other assets invested in, held by or sold by the Fund (including, without limitation, the Portfolio assets), and that the Trust, Fund, Advisor and Sub-advisor will rely on one or more pricing agents chosen by the Board for prices of the securities and other assets of the Fund (including, without limitation, the Portfolio assets), for any purposes; provided, however, that, in accordance with procedures adopted by the Board, Sub-advisor will cooperate reasonably with the Advisor and, unless prohibited by applicable law or confidentiality obligation, provide such information as the Advisor reasonably may request for purposes of valuing or pricing securities or other assets selected by Sub-advisor for which a readily available market price is not available.
(k) For the purpose of complying with Rule 10f-3, Rule 12d3-1 and Rule 17a-10 under the 1940 Act and any other applicable rule or regulation, the Sub-advisor will not, with respect to transactions in securities or other assets for any Portfolio, consult with any other sub-advisor to the relevant Fund or any other series of the Trust to the extent prohibited under or required by the 1940 Act.
(l) For the avoidance of doubt, notwithstanding any other provision of this Agreement:
(i) The parties agree that Sub-advisor is not being engaged, and shall not be responsible, under this Agreement to provide any commodity advice, or investment advice regarding commodities or commodity interest or to take or refrain from taking any other action that would require Sub-advisor to register as a commodity trading advisor;
(ii) The Trust and Advisor agree that Sub-advisor is not the compliance agent for the Trust, Fund or Advisor, may not have access to all of the books and records of the Fund necessary to perform certain compliance testing, and will not be obligated to request any books and records of the Fund not in Sub-advisor’s possession for purposes of compliance testing. To the extent that Sub-advisor has agreed to perform the services specified in this Agreement in accordance with applicable laws, rules or regulations (for example, the 1940 Act and Subchapter M of the IRC), the Charter Documents, Sub-advisor’s policies, or written Instructions, Sub-advisor shall perform such services at times mutually agreed between the Advisor and Sub-advisor based upon Sub-advisor’s books and records with respect to the Portfolio assets of the Fund, which may comprise only a portion of the Fund’s books and records, and shall not be held responsible under this Agreement so long as it performs such services in accordance with this Agreement based upon Sub-advisor’s books and records. In no event shall Sub-advisor be responsible for compliance testing with respect to any assets of the Fund other than the Portfolio assets sub-advised by the Sub-advisor; and
(iii) The Trust and Advisor agrees that Sub-advisor shall be afforded a reasonable amount of time to implement any change in applicable law, rule or regulation (but in no event (except after obtaining a proper exem
Appears in 1 contract
Sources: Sub Advisory Agreement (Cornerstone Healthcare Plus Reit, Inc.)
Duties of the Sub Advisor. (a) 1.1 The Adviser hereby appoints the Sub-Advisor to manage the investment and reinvestment of the assets of the Portfolio entrusted to the Sub-Advisor hereunder, to the extent requested by and subject to the supervision and control of the Adviser and the Board for the period and upon the terms herein set forth, and the Sub-Advisor accepts such appointment.
1.2 The Sub-advisor will, on a discretionary basis Advisor is hereby authorized and without prior consultation, make decisions with respect to all purchases directed and sales of securities and other investment assets in each Fund’s Portfolio managed by Sub-advisor under this Agreementhereby agrees, in accordance with: (i) with the requirements Sub-Advisor's best judgment and subject to the stated investment objectives, policies and restrictions of the 1940 Act, Portfolio as set forth in the current prospectus and the rules and regulations thereunder applicable to the Fund; (ii) the requirements statement of additional information of the Portfolio (including all amendments thereto) and in accordance with the Investment Advisers Act Company's Articles of 1940Incorporation and Bylaws (collectively, as amended (“Advisers Act”the "Fund Documents"), the 1940 Act and the rules and regulations thereunder applicable to Sub-advisor; (iii) the provisions of Subchapter M of the Internal Code of Revenue Code of 1986, as amended (“IRC”) applicable the "Code"), relating to “regulated investment companies” companies and the Fund; (iv) the investment objectives, strategies and limitations of the Fund subject to such resolutions as provided in the Fund’s Charter Documents and Registration Statement as applicable to the Fund, in each case as amended and updated from time to time may be adopted by the Board and provided in writing to Sub-advisorall guidelines, (v) Sub-advisor’s compliance policies and procedures otherwise adopted under Rule 38a-1 promulgated under by the 1940 Act, and (vi) such other reasonable, mutually acceptable, instructions relating Investment Company or the Adviser applicable to the Fund’s Portfolio to develop, recommend and implement such investment program and strategy for the Portfolio as the Board or Advisor may from time to time specifically adoptbe most appropriate to the achievement of the investment objectives of the Portfolio as stated in the aforesaid prospectus, to provide research and provide in writing analysis relative to Sub-advisorthe investment program and investments of the Portfolio, as being necessary for Sub-advisor to perform its services determine what securities and other obligations under this Agreement (“Instructions”). Without limiting financial instruments should be purchased and sold, to monitor on a continuing basis the foregoing, Advisor and the Trust hereby authorize Sub-advisor to, and Sub-advisor will, (A) formulate and implement a continuous investment program for the Portfolio assets performance of each Fund, and (B) take the steps that Sub-advisor determines to be reasonably necessary to implement such investment program(s), including, but not limited to, purchasing, holding or selling the securities and other assets included financial instruments held by the Portfolio, and, at Sub-Advisor's expense, to provide or obtain such services as may be necessary in managing, acquiring or disposing of said investments.
1.3 In connection with its authority and responsibility under Section 1.2 of this Agreement, the Sub-Advisor, at its expense, will identify issuers of wrap contracts and will, on behalf of the Portfolio, negotiate the terms of each wrap contract proposed to be entered into by the Investment Company with respect to the Portfolio assets of the Fund(each, selecting brokers, dealers and other intermediaries, settling and allocating trades, aggregating trades, and seeking to obtain best execution, in each case in accordance with the 1940 Act, the Advisers Act and the rules and regulations thereunder, and Sub-advisor’s applicable compliance policies as in effect from time to timea " Proposed Wrap Contract"). The Sub-advisor Advisor will vote (either directly or through a voting service engaged by use its best efforts to obtain the most favorable terms for the Portfolio in each Proposed Wrap Contract. The Sub- Advisor will provide to WRIMCO, for WRIMCO's prior review, each Proposed Wrap Contract which the Sub-advisor) all proxies Advisor has negotiated and proposes to present to the Board for securities included in the Portfolio assets managed by approval. The Sub-advisor under this Agreement, and exercise all other voting rights with respect to such securities, Advisor will manage the Portfolio's assets in accordance with Sub-advisor’s proxy voting procedures the requirements of each wrap contract entered into by the Fund and in effect from time to time. With respect to voting, upon written notice to Sub-advisor, the Advisor or the Board may at any time withdraw the authority granted to Sub-advisor pursuant to this Section 3(a) to perform any or all of the voting services contemplated hereby. Advisor shall be responsible for making any Form N-PX filings with respect to the FundPortfolio (each, a "Wrap Contract").
(b) To carry out such decisions1.4 The Sub-Advisor, at its expense, will make available to the Board and the Adviser, at reasonable times, its portfolio managers and other appropriate personnel in order to review investment policies of the Portfolio and to consult with the Board and the Adviser regarding the investment affairs of the Portfolio, including economic, statistical and investment matters relevant to the Sub-advisor is hereby authorizedAdvisor's duties hereunder, as agent and attorney-in-fact for will provide the Trust, for the account of, at the risk of and in the name of the Trust and the Advisor, to place orders and issue instructions with respect to those transactions of each Portfolio. In all purchases, sales and other transactions in securities and other investments for each Portfolio, the Sub-advisor is authorized to exercise full discretion and act for the Trust and Advisor in the same manner and with the same force and effect as the Trust Board or the Advisor might or could do with respect to such purchases, sales or other transactions, as well as with respect to all other things necessary or incidental Adviser periodic reports relating to the furtherance or conduct of such purchasesinvestment analysis and portfolio strategies it employs, sales or other transactions, such as proxy voting with respect to including periodic reports on the securities investment performance of the Portfolio. The TrustSub-Advisor will supply such additional reports and information as the Investment Company's officers or Board shall reasonably request.
1.5 The Sub-Advisor will comply with all reasonable requests of the Adviser or the Investment Company for information, for itself including information required in connection with the Investment Company's filings with the Securities and each FundExchange Commission (the "SEC") and state securities commissions. In particular, and without limiting the Advisor hereby ratify and confirm as good and effectual, at law or in equity, all that Sub-advisor, and its trustees/directors, officers and employees, may do in the capacity as attorney-in-fact. For the avoidance of doubt, while the Sub-advisor will have authority to act on behalf scope of the Trust, the Fund or the Advisor in its capacity as attorney-in-factpreceding sentence, the Sub-advisor is not compelled Advisor will maintain such disclosure controls and procedures, and upon written request of the Adviser will provide such certifications to act in that capacity the Investment Company or the Investment Company's officers, as may be reasonable and appropriate to facilitate the Investment Company's compliance with applicable regulatory requirements, including those imposed under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, with respect to the Portfolio.
1.6 The Sub-Advisor will place all orders pursuant to its investment determinations for the Portfolio either directly with the issuer or through broker-dealers selected by Sub-Advisor, except when the Board specifically directs otherwise. In the selection of broker-dealers and the placement of orders for the purchase and sale of investments for the Portfolio, the Sub- Advisor shall use its best efforts to obtain for the Portfolio the most favorable price and execution available, except to the extent it may request that be permitted to pay higher brokerage commissions for brokerage and research services as described below. In using its best efforts to obtain the Trustmost favorable price and execution available, Fund or Advisor act directly on its own behalf in certain circumstances (e.g., to execute certain documents that the Sub-advisor reasonably believes are more appropriate to be signed directly Advisor, bearing in mind the Portfolio's best interests at all times, shall consider all factors it deems relevant, including by way of illustration: price, the size of the transaction, the nature of the market for the security, the amount of the commission and dealer's spread or ▇▇▇▇-up, the timing of the transaction taking into account market prices and trends, the reputation, experience and financial stability of the broker-dealer involved, the general execution and operational facilities of the broker-dealer and the quality of service rendered by the Trustbroker-dealer in other transactions. Subject to such policies, Fund or Advisor). Any person, partnership, corporation or other legal entity or natural person dealing with which will be communicated to the Sub-advisor in its capacity as attorney-in-fact hereunder is hereby expressly put on notice that Sub-advisor is acting solely in the capacity as an agent for the Trust, the Fund and/or Advisor, as applicable, and that any such person, partnership, corporation or other legal entity or natural person must look solely to the TrustBoard may determine, the Fund and/or the Advisor, as applicable, for enforcement of any claim against the Trust, the Fund or the Advisor, as Sub-advisor assumes no personal liability whatsoever for obligations of the Trust, the Fund or the Advisor entered into by Sub-advisor in its capacity as attorney-in-fact. In no event will Sub-advisor have the authority to withdraw cash or securities from a Fund or otherwise shall not be deemed to have custody over acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason of its having caused the Portfolio to pay a broker-dealer that provides brokerage and research services to the Sub-Advisor an amount of commission for effecting a portfolio investment transaction in excess of the amount of commission another broker-dealer would have charged for effecting that transaction if the Sub-Advisor determines in good faith that such amount of commission was reasonable in relation to the value of the brokerage and research services provided by such broker-dealer, viewed in terms of either that particular transaction or the Sub-Advisor's overall responsibilities with respect to the Portfolio and to other clients of the Sub-Adviser as to which the Sub-Advisor exercises investment discretion. In no instance, however, will the Portfolio's assets of any Fund. The Advisor and/or the Trust also shall deliver be purchased or sold to Sub-advisor executed copy(ies), signed by authorized representatives Advisor or any affiliated person of the Advisor and/or the Trust, on behalf of the Fund, of one or more separate limited powers of attorney requested by the Sub-advisor from time Advisor, acting as principal in the transaction, except to timethe extent permitted by the SEC and the 1940 Act and as approved by the Adviser. Any such transactions shall be reported quarterly to the Board.
(c) Sub-advisor may select brokers, dealers and other intermediaries that are affiliated persons of the Trust, the Fund, Advisor or Sub-advisor, provided that any trade orders placed with any such affiliated person are placed in 1.7 In accordance with procedures adopted by the 1940 Act, and the rules and regulations thereunder, and Sub-advisor’s applicable policies and procedures as in effect from time to time. Consistent with Section 28(e) of the Securities and Exchange Act of 1934Board, as amended, and the Sub-advisor’s applicable compliance policies as in effect amended from time to time, the Sub-advisor may allocate brokerage on behalf Advisor will assist in the fair valuation of all the securities and other financial instruments of the Portfolio, including Wrap Contracts, and will, at the request of the Adviser, use its reasonable efforts to arrange for the provision of a Fund price or prices from one or more parties independent of the Sub-Advisor for each portfolio security or instrument for which the Portfolio or its agent does not obtain prices in the ordinary course of business from an automated pricing service. The Sub- Advisor will promptly notify the Adviser, in such manner and by such means as the Sub-Advisor and Adviser shall agree, if the Sub-Advisor becomes aware of any information relating to brokersa security of financial instrument of the Portfolio, dealers or relating to the issuer of any such security or financial instrument, that could materially affect the price of such security or financial instrument.
1.8 The Sub-Advisor will manage the Portfolio's assets in a manner consistent with initially achieving and, thereafter, maintaining the Portfolio's status as a regulated investment company under Subchapter M of the Code. The Sub-Advisor acknowledges that neither the Adviser nor its employees shall be required to evaluate the merits of investment selections or decisions made by the Sub-Advisor nor be required to approve the selections or decisions, nor to confirm their compliance with applicable investment policies and restrictions.
1.9 The Sub-Advisor shall furnish to the Board periodic reports on the investment performance of the Portfolio and on the performance of the Sub-Advisor's obligations under this Agreement and shall supply such additional reports and information as the Investment Company's officers or Board shall reasonably request.
1.10 The Sub-Advisor will advise the Adviser and, if instructed by the Adviser, the Portfolio's custodian on a prompt basis each day by electronic telecommunication of each confirmed purchase or sale of a portfolio security specifying the name of the issuer, the full description of the security including its class, amount or number of shares of the security purchased or sold, the market price, the commission, government charges and gross or net price, trade date, settlement date and identity of the clearing broker.
1.11 The Sub-Advisor will review all proxy solicitation materials, and be responsible for voting and handling all proxies, in relation to the securities held in the Portfolio. The Adviser will instruct the custodian and other intermediaries that provide brokerage, research or other parties providing services or products to the Portfolio to promptly forward misdirected proxies to the Sub-advisor or its affiliatesAdvisor. In selecting brokers, dealers and other intermediaries, Sub-advisor may also consider the reliability, integrity and financial condition of a broker, dealer or other intermediary, the size of and difficulty in executing a transaction, and other factors that Sub-advisor deems appropriate and consistent with Sub-advisor’s compliance policies as in effect from time to time.
(d) The Sub-advisor may (but Advisor shall not be obligated to) aggregate sales maintain such proxy voting policies and purchase orders of shall provide to the assets of a Portfolio with similar orders being made simultaneously for other accounts advised by Adviser or Investment Company such information about the Sub-advisor Advisor's voting policies and its actual voting of proxies with respect to securities held in the Portfolio as may be reasonably necessary to facilitate the Investment Company's compliance with applicable regulatory requirements regarding disclosure with respect to proxy voting.
1.12 Nothing in this Agreement shall be implied to prevent (i) the Adviser from engaging other sub-advisors to provide investment advice and other services in relation to the Portfolio, or its affiliates in accordance with Sub-advisor’s compliance policies as in effect from time to time and applicable law. Whenever a portion of the Portfolio assets, for which the Sub-advisor simultaneously places orders Advisor does not provide such services, or to purchase prevent the Adviser from providing such services itself in relation to the Portfolio; or sell the same asset on behalf of a Portfolio and one or more other accounts advised by (ii) the Sub-advisorAdvisor from providing investment advice and other services to other funds or clients.
1.13 In the performance of its duties hereunder, the Sub-advisor will allocate the order Advisor is and shall be an independent contractor and except as to price and amount among all such accounts in a manner believed to be equitable over time to each account in accordance with Sub-advisor’s compliance policies as in effect from time to time and applicable law. The Trust and Advisor hereby acknowledge that such aggregation of orders may not result in a more favorable price expressly provided herein or lower brokerage commissions in all instances.
(e) To the extent not prohibited under applicable law, the Sub-advisor will report (either otherwise authorized in writing, via teleconference shall have no authority to act for or in person as agreed by Sub-advisor) to represent the Board at each meeting thereof as reasonably requested by the Advisor or the Board all material changes in each Portfolio since the prior report, and will also keep the Board and the Advisor reasonably informed of important developments affecting the Trust, each Portfolio and the Sub-advisor of which Sub-advisor may become aware, and upon reasonable request, will furnish the Board from time to time with such information as the Sub-advisor may believe appropriate for this purpose, whether concerning the individual companies the securities of which are included in a Portfolio’s holdings, the industries in which such companies engage, the economic, social or political conditions prevailing in each country in which a Portfolio maintains investments, or otherwise. To the extent not prohibited under applicable law, the Sub-advisor will also furnish the Board and the Advisor with such statistical and analytical information with respect to investments of each Portfolio as the Board reasonably may request. In making purchases and sales of securities and other investment assets for each Portfolio, the Sub-advisor will bear in mind (in each case to the extent communicated in writing reasonably in advance to Sub-advisor) the limitations imposed by the Charter Documents and Registration StatementInvestment Company, the limitations in the 1940 Act, the Securities Act, the IRC, as amended, and other laws known by Sub-advisor to be applicable to the provision of its services under this Agreement and the investment objectives, policies and restrictions of the relevant Fund.
(f) Notwithstanding anything contained in this Agreement to the contrary, the Sub-advisor may enter into non-advisory service arrangements with its affiliates and other third party contractors in connection with the performance of Sub-advisor’s services and other obligations under this Agreement, including, without limitation, for the provision of certain personnel, services and facilities to the Sub-advisor, provided that such arrangements comply with the 1940 Act (including, if applicable, the requirements of Section 15 of the 1940 Act). The cost of performance of such duties will be borne and paid by the Sub-advisor. Except as permitted under this Agreement, no obligation may be incurred on the Trust’s or Advisor’s behalf in any such respect.
(g) As and to the extent reasonably requested, to the extent not prohibited under applicable law, the Sub-advisor will report to the Board and the Advisor all material matters related to the Sub-advisor, including on its compliance with its Code and its compliance policies to its provision of services under this Agreement, and upon the reasonable written request of the Advisor or the Trust, the Sub-advisor shall permit the Advisor and the Trust, or their respective representatives, to examine the reports (or summaries thereof) required to be made to the Sub-advisor under the Code and its compliance policies and procedures. To the extent not prohibited under applicable law, the Sub-advisor will notify the Advisor and the Trust in writing of any change of control of the Sub-advisor at least 60 days prior to any such changes and any changes in the key personnel who are the portfolio manager(s) of a Fund, as promptly as possible, and in any event, to the extent practicable, prior to such change.
(h) The Sub-advisor will maintain books and records relating to its Portfolio transactions, placing and allocation of brokerage orders, and its services under this Agreement, as, and for such periods and in such locations, required of an investment advisor to a registered investment company pursuant to Section 31 of the 1940 Act or Section 204 of the Advisers Act and the rules and regulations promulgated thereunder. To the extent required by the 1940 Act, the books and records pertaining to the Trust which are in possession of the Sub-advisor shall be the property of the Trust. The Advisor and the Trust, or their respective representatives, shall have reasonable access to such books and records at all times during the Sub-advisor's normal business hours upon reasonable advance notice and without interruption to Sub-advisor’s business. Upon the reasonable request of the Advisor or the Trust, and at the Trust’s expense, copies of any such books and records shall be provided promptly by the Sub-advisor to the Advisor and the Trust, or their respective representatives. Sub-advisor may retain copies of any or all of such books and records as Sub-advisor reasonably believes necessary for legitimate business purposes and to comply with its obligations under applicable law.
(i) The Sub-advisor will reasonably cooperate with each Fund’s independent public registered accounting firm and shall take reasonable action as reasonably agreed between Sub-advisor and Advisor to make all necessary information in Sub-advisor’s possession or control available to the accounting firm for the performance of the accounting firm’s duties.
(j) The Sub-advisor will provide, as reasonably agreed between Sub-advisor and Advisor, each Fund’s custodian and fund accountant on each business day with such reasonable information in Sub-advisor’s possession and control relating to all transactions concerning the relevant Portfolio’s assets under the Sub-advisor’s management as the custodian and fund accountant may reasonably request. The Advisor and Trust acknowledge and agree, on behalf of itself and the Fund(s), respectively, that Sub-advisor is not responsible for valuing or pricing the securities and other assets invested in, held by or sold by the Fund (including, without limitation, the Portfolio assets), and that the Trust, Fund, Advisor and Sub-advisor will rely on one or more pricing agents chosen by the Board for prices of the securities and other assets of the Fund (including, without limitation, the Portfolio assets), for any purposes; provided, however, that, in accordance with procedures adopted by the Board, Sub-advisor will cooperate reasonably with the Advisor and, unless prohibited by applicable law or confidentiality obligation, provide such information as the Advisor reasonably may request for purposes of valuing or pricing securities or other assets selected by Sub-advisor for which a readily available market price is not available.
(k) For the purpose of complying with Rule 10f-3, Rule 12d3-1 and Rule 17a-10 under the 1940 Act and any other applicable rule or regulation, the Sub-advisor will not, with respect to transactions in securities or other assets for any Portfolio, consult with any other sub-advisor to the relevant Fund or any other series of the Trust Portfolio or the Adviser in any way or otherwise be deemed to be an agent of the extent prohibited under or required by Portfolio, the 1940 Act.
(l) For the avoidance of doubtInvestment Company, notwithstanding any other provision of this Agreement:
(i) The parties agree that Sub-advisor is not being engaged, and shall not be responsible, under this Agreement to provide any commodity advice, or investment advice regarding commodities or commodity interest or to take or refrain from taking any other action that would require Sub-advisor to register as a commodity trading advisor;
(ii) The Trust and Advisor agree that Sub-advisor is not the compliance agent for the Trust, Fund or Advisor, may not have access to all series of the books and records of Portfolio or the Fund necessary to perform certain compliance testing, and will not be obligated to request any books and records of the Fund not in Sub-advisor’s possession for purposes of compliance testing. To the extent that Sub-advisor has agreed to perform the services specified in this Agreement in accordance with applicable laws, rules or regulations (for example, the 1940 Act and Subchapter M of the IRC), the Charter Documents, Sub-advisor’s policies, or written Instructions, Sub-advisor shall perform such services at times mutually agreed between the Advisor and Sub-advisor based upon Sub-advisor’s books and records with respect to the Portfolio assets of the Fund, which may comprise only a portion of the Fund’s books and records, and shall not be held responsible under this Agreement so long as it performs such services in accordance with this Agreement based upon Sub-advisor’s books and records. In no event shall Sub-advisor be responsible for compliance testing with respect to any assets of the Fund other than the Portfolio assets sub-advised by the Sub-advisor; and
(iii) The Trust and Advisor agrees that Sub-advisor shall be afforded a reasonable amount of time to implement any change in applicable law, rule or regulation (but in no event (except after obtaining a proper exemAdviser.
Appears in 1 contract
Sources: Subadvisory Contract (W&r Funds Inc)