Advisor's Closing Obligations. On or prior to the Closing Date (as hereinafter defined) with respect to the initial offering of the Trust with respect to the applicable Series of Units (the "Initial Closing Date"), and thereafter, only if requested by the Managing Owner, on or prior to each closing date during the continuous offering of the applicable Series of Units (each a "Subsequent Closing Date"), the Trading Advisor shall deliver or cause to be delivered, at the expense of the Trading Advisor, to the Selling Agents, the Trust, the Trading Company and the Managing Owner, the reports, certificates and documents described below addressed to them and, except as may be set forth below, dated the Initial Closing Date or the Subsequent Closing Date, as appropriate. Unless the context otherwise requires, the Initial Closing Date and each Subsequent Closing Date shall each be referred to as a "Closing Date:" (a) a report from the Trading Advisor which shall present, for the period from the date after the last day covered by the Trading Advisor's Past Performance History as set forth under "Past Performance Information" in the Prospectus to the latest practicable month-end before the Closing Date, figures which shall show the actual past performance of the Trading Advisor (or, if such actual past performance information is unavailable, then the estimated past performance) for such period, and which shall certify that, to the best of its knowledge, such figures are complete and accurate in all material respects; (b) a certificate of the Trading Advisor in the form proposed prior to the Closing Date by counsel to the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to the Trust, the Managing Owner, the Trading Advisor, and their respective counsel, to the effect that: (1) the representations and warranties of the Trading Advisor contained in this Agreement are true and correct in all material respects on the date of the certificate as though made on such date; (2) nothing has come to the Trading Advisor's attention which would cause the Trading Advisor to believe that, at any time from the time the Registration Statement initially became effective to the Closing Date, the Registration Statement, as amended from time to time, or the Prospectus, as amended or supplemented from time to time, with respect to the Trading Advisor, or the affiliates, controlling persons, shareholders, directors, officers or employees of any of the foregoing, or with respect to the Trading Approach or Past Performance History, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they were made) not misleading; and (3) the Trading Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date; (c) a certificate of the Trading Advisor (together with such supporting documents as are set forth in the certificate), in the form proposed prior to the Closing Date by counsel to the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to the Trust, the Managing Owner, the Trading Advisor, and their respective counsel, with respect to, (1) the continued effectiveness of the organizational documents of the Trading Advisor, (2) the continued effectiveness of the Trading Advisor's registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA and (3) the incumbency and genuine signature of the President and Secretary of the Trading Advisor; (d) a certificate from the state of formation of the Trading Advisor, to be dated at, on or around the Closing Date, as to its formation and good standing, provided that no certificate of formation shall be required at any Subsequent Closing Date.
Appears in 3 contracts
Samples: Advisory Agreement (Frontier Fund), Advisory Agreement (Frontier Fund), Advisory Agreement (Frontier Fund)
Advisor's Closing Obligations. On or prior to the Closing Date (as hereinafter defined) with respect to the initial offering of the Trust with respect to the applicable Series of Units J Interests (the "“Initial Closing Date"”), and thereafter, only if requested by the Managing Ownerrequested, on or prior to each closing date during the continuous offering of the applicable Series of Units J Interests (each a "“Subsequent Closing Date"”), the Trading Advisor shall deliver or cause to be delivered, at the expense of the Trading Advisor, to the Selling AgentsAgent, Series J, the Trust, the Trading Company Trust and the Managing Owner, the reports, certificates and documents described below addressed to them and, except as may be set forth below, dated the Initial Closing Date or the Subsequent Closing Date, as appropriate. Unless the context otherwise requires, the Initial Closing Date and each Subsequent Closing Date shall each be referred to as a "“Closing Date:".”
(a) a a. A report from the Trading Advisor which shall present, for the period from the date after the last day covered by the Trading Advisor's Past Performance History ’s past performance history as set forth under "Past Performance Information" “XXXXXX CAPITAL MANAGEMENT, L.P.” in the Prospectus to the latest practicable month-end before the Closing Date, figures which shall show the actual past performance of the Trading Advisor (or, if such actual past performance information is unavailable, then the estimated past performance) for such period, and which shall certify that, to the best of its the Advisor’s knowledge, such figures are complete and accurate in all material respects;.
(b) a b. A certificate of the Trading Advisor in the form proposed prior to the Closing Date by counsel to the Selling Agent, the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and as are acceptable to the Selling Agent, the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to the Selling Agent, the Trust, the Managing Owner, the Trading Advisor, Advisor and their respective counsel, to the effect that:
(1i) the The representations and warranties of the Trading Advisor contained in Section 1 of this Agreement are true and correct in all material respects on the date of the certificate as though made on such date;.
(2ii) nothing Nothing has come to the Trading Advisor's ’s attention which would cause the Trading Advisor to believe that, at any time from the time the Registration Statement initially became effective to the Closing Date, the Registration Statement, as amended from time to time, or the Prospectus, as amended or supplemented from time to time, with respect to the Trading Advisor, or the its affiliates, and controlling persons, shareholders, directors, officers or employees of any of the foregoing, or with respect to the Advisor’s Trading Approach or Past Performance Historypast performance history, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they were made) not misleading; and.
(3iii) the Trading The Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date;.
(c) a c. A certificate of the Trading Advisor (together with such supporting documents as are set forth in the such certificate), in the form proposed prior to the Closing Date by counsel to the Selling Agent, Trust, the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to the Selling Agent, Trust, the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to the Selling Agent, Series J, the Trust, the Managing Owner, the Trading Advisor, Advisor and their respective counsel, with respect to, (1i) the continued effectiveness of the organizational documents of the Trading Advisor, (2ii) the continued effectiveness of the Trading Advisor's ’s registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA and (3iii) the incumbency and genuine signature of the President and Secretary of the Trading Advisor;.
(d) a d. A certificate from the state of formation of the Trading Advisor, to be dated at, on or around the Closing Date, as to its formation and good standing, provided that no certificate of formation shall be required at any Subsequent Closing Date.
Appears in 2 contracts
Samples: Advisory Agreement (World Monitor Trust III - Series J), Advisory Agreement (World Monitor Trust III - Series J)
Advisor's Closing Obligations. On or prior to the Closing Date (as hereinafter defined) with respect to the initial offering of the Trust with respect to the applicable Series of Units (the "Initial Closing Date"), and thereafter, only if requested by the Managing Owner, on or prior to each closing date during the continuous offering of the applicable Series of Units (each a "Subsequent Closing Date"), the Trading Advisor shall deliver or cause to be delivered, at the expense of the Trading Advisor, to the Selling Agents, the Trust, the Trading Company and the Managing Owner, the reports, certificates and documents described below addressed to them and, except as may be set forth below, dated the Initial Closing Date or the Subsequent Closing Date, as appropriate. Unless the context otherwise requires, the Initial Closing Date and each Subsequent Closing Date shall each be referred to as a "Closing Date:"
(a) a report from the Trading Advisor which shall present, for the period from the date after the last day covered by the Trading Advisor's Past Performance History as set forth under "Past Performance Information" in the Prospectus to the latest practicable month-end before the Closing Date, figures which shall show the actual past performance of the Trading Advisor (or, if such actual past performance information is unavailable, then the estimated past performance) for such period, and which shall certify that, to the best of its knowledge, such figures are complete and accurate in all material respects;
(b) a certificate of the Trading Advisor in the form proposed prior to the Closing Date by counsel to the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to the Trust, the Managing Owner, the Trading Advisor, and their respective counsel, to the effect that:
(1) the representations and warranties of the Trading Advisor contained in this Agreement are true and correct in all material respects on the date of the certificate as though made on such date;
(2) nothing has come to the Trading Advisor's attention which would cause the Trading Advisor to believe that, at any time from the time the Registration Statement initially became effective to the Closing Date, the Registration Statement, as amended from time to time, or the Prospectus, as amended or supplemented from time to time, with respect to the Trading Advisor, or the affiliates, controlling persons, shareholders, directors, officers or employees of any of the foregoing, or with respect to the Trading Approach or Past Performance History, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they were made) not misleading; and
(3) the Trading Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date;
(c) a certificate of the Trading Advisor (together with such supporting documents as are set forth in the certificate), in the form proposed prior to the Closing Date by counsel to the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to the Trust, the Managing Owner, the Trading Advisor, and their respective counsel, with respect to, (1) the continued effectiveness of the organizational documents of the Trading Advisor, (2) the continued effectiveness of the Trading Advisor's registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA and (3) the incumbency and genuine signature of the President and Secretary of the Trading Advisor;
(d) a certificate from the state of formation of the Trading Advisor, to be dated at, on or around the Closing Date, as to its formation and good standing, provided that no certificate of formation shall be required at any Subsequent Closing Date.;
Appears in 1 contract
Samples: Advisory Agreement (Frontier Fund)
Advisor's Closing Obligations. On or prior to the Closing Date (as hereinafter defined) with respect to the initial offering of the Trust with respect to the applicable Series of Units G Interests and Series J Interests (the "Initial Closing Date"), and thereafter, only if requested by the Managing Ownerrequested, on or prior to each closing date during the continuous offering of the applicable Series of Units G Interests or Series J Interests (each a "Subsequent Closing Date"), the Trading Advisor shall deliver or cause to be delivered, at the expense of the Trading Advisor, to the Selling Agents, the TrustAgent, the Trading Company Vehicle, the Trust and the Managing Owner, the reports, certificates and documents described below addressed to them and, except as may be set forth below, dated the Initial Closing Date or the Subsequent Closing Date, as appropriate. Unless the context otherwise requires, the Initial Closing Date and each Subsequent Closing Date shall each be referred to as a "Closing Date:."
(a) a a. A report from the Trading Advisor which shall present, for the period from the date after the last day covered by the Trading Advisor's Past Performance History past performance history as set forth under "Past Performance InformationGRAHAM CAPITAL MANAGEMENT, L.P." in the Prospectus to the latest xxxxxx practicable month-end before the Closing Date, figures which shall show the actual past performance of the Trading Advisor (or, if such actual past performance information is unavailable, then the estimated past performance) for such period, and which shall certify that, to the best of its the Advisor's knowledge, such figures are complete and accurate in all material respects;.
(b) a b. A certificate of the Trading Advisor in the form proposed prior to the Closing Date by counsel to the Selling Agent, the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and as are acceptable to the Selling Agent, the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to the Selling Agent, the Trust, the Managing Owner, the Trading Advisor, Advisor and their respective counsel, to the effect that:
(1i) the The representations and warranties of the Trading Advisor contained in Section 1 of this Agreement are true and correct in all material respects on the date of the certificate as though made on such date;.
(2ii) nothing Nothing has come to the Trading Advisor's attention which would cause the Trading Advisor to believe that, at any time from the time the Registration Statement initially became effective to the Closing Date, the Registration Statement, as amended from time to time, or the Prospectus, as amended or supplemented from time to time, with respect to the Trading Advisor, or the its affiliates, and controlling persons, shareholders, directors, officers or employees of any of the foregoing, or with respect to the Advisor's Trading Approach or Past Performance Historypast performance history, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they were made) not misleading; and.
(3iii) the Trading The Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date;.
(c) a c. A certificate of the Trading Advisor (together with such supporting documents as are set forth in the such certificate), in the form proposed prior to the Closing Date by counsel to the Selling Agent, Trading Vehicle, the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to the Selling Agent, Trading Vehicle, the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to the Selling Agent, the Trading Vehicle, the Trust, the Managing Owner, the Trading Advisor, Advisor and their respective counsel, with respect to, (1i) the continued effectiveness of the organizational documents of the Trading Advisor, (2ii) the continued effectiveness of the Trading Advisor's registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA and (3iii) the incumbency and genuine signature of the President and Secretary of the Trading Advisor;.
(d) a d. A certificate from the state of formation of the Trading Advisor, to be dated at, on or around the Closing Date, as to its formation and good standing, provided that no certificate of formation shall be required at any Subsequent Closing Date.
Appears in 1 contract
Advisor's Closing Obligations. On or prior to the Closing Date (as hereinafter defined) with respect to the initial offering of the Trust with respect to the applicable Series of Units C Interests (the "Initial Closing Date"), and thereafter, only if requested by the Managing Ownerrequested, on or prior to each closing date during the continuous offering of the applicable Series of Units C Interests (each a "Subsequent Closing Date"), the Trading Advisor shall deliver or cause to be delivered, at the expense of the Trading Advisor, to the Selling AgentsPrudential Securities, the Trust, the Trading Company Trust and the Managing Owner, the reports, certificates certificates, documents and documents opinions described below addressed to them and, except as may be set forth below, dated the Initial Closing Date or the Subsequent Closing Date, as appropriateappropriate (provided that the Advisor shall not be obligated to provide an opinion of its counsel more frequently than once per annum absent good cause shown). Unless the context otherwise requires, the Initial Closing Date and each Subsequent Closing Date shall each be referred to as a "Closing Date:",
(a) a a. A report from the Trading Advisor which shall present, for the period from the date after the last day covered by the Trading Advisor's Past Performance History as set forth under "Past Performance InformationInformation - Series C " in the Prospectus to the latest practicable month-end before the Closing Date, figures which shall show the actual past performance of the Trading Advisor (or, if such actual past performance information is unavailable, then the estimated past performance) for such period, and which shall certify that, to the best of its knowledge, such figures are complete and accurate in all material respects;.
(b) a b. A certificate of the Trading Advisor in the form proposed prior to the Closing Date by counsel to Prudential Securities, the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to Prudential Securities, the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to Prudential Securities, the Trust, the Managing Owner, the Trading Advisor, and their respective counsel, to the effect that:
(1i) the The representations and warranties of the Trading Advisor contained in this Agreement Section 1 above are true and correct in all material respects on the date of the certificate as though made on such date;.
(2ii) nothing Nothing has come to the Trading Advisor's attention which would cause the Trading Advisor to believe that, at any time from the time the Registration Statement initially became effective to the Closing Date, the Registration Statement, as amended from time to time, or the Prospectus, as amended or supplemented from time to time, with respect to the Trading Advisor, or the affiliates, controlling persons, shareholders, directors, officers or employees of any of the foregoing, or with respect to the Advisor's Trading Approach or Past Performance History, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they were made) not misleading; and.
(3iii) the Trading The Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date;.
(c) a c. A certificate of the Trading Advisor (together with such supporting documents as are set forth in the certificate), in the form proposed prior to the Closing Date by counsel to Prudential Securities, the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to Prudential Securities, the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to Prudential Securities, the Trust, the Managing Owner, the Trading Advisor, and their respective counsel, with respect to, (1i) the continued effectiveness of the organizational documents of the Trading Advisor, (2ii) the continued effectiveness of the Trading Advisor's registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA and (3iii) the incumbency and genuine signature of the President and Secretary of the Trading Advisor;.
(d) a d. A certificate from the state of formation of the Trading Advisor, to be dated at, on or around the Closing Date, as to its formation and good standing.
e. An opinion of counsel, provided that no certificate in form and substance satisfactory to the Trust, the Managing Owner and Prudential Securities and their counsel, dated the Closing Date, to the following effect:
(i) The Advisor is a duly formed and validly existing corporation in good standing under the laws of the state of its formation shall be required at any Subsequent and, if different, the state where it conducts its primary business activity. The Advisor has full corporate power and authority under its Certificate of Incorporation to perform its obligations under the Advisory Agreement and this Agreement, and to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date.
(ii) Each of the Advisory Agreement and this Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor, and assuming the due execution and delivery of each such Agreement by the Trust and the Managing Owner, each such agreement constitutes the legal, valid and binding obligations of the Advisor, enforceable in accordance with their respective terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting creditors rights generally, or by applicable principles of equity, whether in an action at law or in equity, and except that the enforceability of the indemnification provisions may be limited under applicable federal or state securities, commodities and other laws or by public policy; and the execution and delivery of such agreements and the incurrence of the obligations thereunder and the consummation of the transactions set forth in such agreements and in the Prospectus will not violate or result in a breach of the Advisor's formation documents, and, to the best of such counsel's knowledge, after due inquiry, will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
(iii) Subject to subparagraph (iv) of this Section 4e, to the best of such counsel's knowledge, after due inquiry, the Advisor has obtained all required governmental and regulatory licenses, registrations and approvals required by law as may be necessary in order to perform its obligations under the Advisory Agreement and this Agreement and to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date (including, without limitation, registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA) and such licenses, registrations and approvals have not, to the best of such counsel's knowledge, after due inquiry, been rescinded, revoked or otherwise removed.
(iv) Assuming that the Trust is operated as described in the Prospectus, the Advisor is not required to be licensed or registered as an investment adviser under the Advisers Act (even if it voluntarily is so registered), or to such counsel's knowledge, without independent investigation, as an investment adviser or commodity trading advisor under the Blue Sky securities laws of any state of the United States, in order to perform its obligations under the Advisory Agreement or this Agreement, or to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date. The foregoing opinion may be qualified by the fact that such counsel is not admitted to practice law in all jurisdictions, and that in rendering its opinion such counsel has relied solely upon an examination of the Blue Sky securities laws and related rules and regulations, if any, promulgated thereunder, of the various jurisdictions as reported in customarily relied upon standard compilations.
(v) To such counsel's knowledge without independent investigation, except as described in the Prospectus, or in a schedule delivered by counsel to Prudential Securities and the Managing Owner prior to the date hereof, there is no pending, or threatened, suit or proceeding, known to such counsel, before or by any court, governmental or regulatory body or arbitration panel to which the Advisor or any of the assets of the Advisor or any of its principals is subject and which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or any of its principals or reasonably might be expected materially adversely to affect any of the assets of the Advisor or any of its principals or which reasonably might be expected to (A) impair materially the Advisor's ability to discharge its obligations to the Trust or (B) result in a matter which would require disclosure in the Registration Statement or Prospectus; and, to the best of such counsel's knowledge, neither the Advisor nor any of its principals has received any notice of an investigation by (i) the NFA regarding non- compliance with its rules or the CE Act, (ii) the CFTC regarding non-compliance with the CE Act or (iii) any exchange, regarding non-compliance with its rules, which investigation reasonably might be expected to (A) impair materially the Advisor's ability to discharge its obligations to the Trust or (B) result in a matter which would require disclosure in the Registration Statement or Prospectus.
(vi) With respect to the Advisor and the affiliates, controlling persons, shareholders, directors, officers and employees of any of the foregoing, and with respect to the Advisor's Trading Approach, nothing has come to the attention of such counsel that leads such counsel to believe that the Registration Statement (at the time it initially became effective and at the time any post-effective amendment thereto became effective) or the Prospectus contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or which is necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they are made) not misleading, except that such counsel is not required to express any opinion or belief as to the financial statements or other financial or statistical data, past performance tables and notes thereto or other past performance information contained in the Registration Statement or the Prospectus. In rendering the foregoing opinions, such counsel may rely, as to matters of law of states other than that in which they are licensed to practice law, upon the opinions of other counsel, in each case satisfactory in form and substance to counsel to the Managing Owner and Prudential Securities, and such counsel shall state that they believe the Managing Owner and Prudential Securities may rely on them.
Appears in 1 contract
Samples: Representation Agreement (World Monitor Trust Series C)
Advisor's Closing Obligations. On or prior to the Closing Date (as hereinafter defined) with respect to the initial offering of the Trust with respect to the applicable Series of Units H Interests and Series J Interests (the "“Initial Closing Date"”), and thereafter, only if requested by the Managing Ownerrequested, on or prior to each closing date during the continuous offering of the applicable Series of Units H Interests and Series J Interests (each a "“Subsequent Closing Date"”), the Trading Advisor shall deliver or cause to be delivered, at the expense of the Trading Advisor, to the Selling Agents, the TrustAgent, the Trading Company and the Managing OwnerVehicle, the reports, certificates and documents described below addressed to them and, except as may be set forth below, dated the Initial Closing Date or the Subsequent Closing Date, as appropriate. Unless the context otherwise requires, the Initial Closing Date and each Subsequent Closing Date shall each be referred to as a "Closing Date:"
(a) a report from the Trading Advisor which shall present, for the period from the date after the last day covered by the Trading Advisor's Past Performance History as set forth under "Past Performance Information" in the Prospectus to the latest practicable month-end before the Closing Date, figures which shall show the actual past performance of the Trading Advisor (or, if such actual past performance information is unavailable, then the estimated past performance) for such period, and which shall certify that, to the best of its knowledge, such figures are complete and accurate in all material respects;
(b) a certificate of the Trading Advisor in the form proposed prior to the Closing Date by counsel to the Trust and the Managing Owner, with such changes a certificate of the Advisor in such a form as are proposed by the Trading Advisor or its counsel and are reasonably acceptable to the Trust and Selling Agent, the Trading Vehicle, the Managing Owner and their counsel so as to make such form mutually acceptable to the Trust, the Managing Owner, the Trading Advisor, and their respective counsel, to the effect that:
(1a) the The representations and warranties of the Trading Advisor contained in Section 1 of this Agreement are true and correct in all material respects on the date of the certificate as though made on such date;.
(2b) nothing Nothing has come to the Trading Advisor's ’s attention which would cause the Trading Advisor to believe that, at any time from the time the Registration Statement initially became effective to the Closing Date, the Registration Statement, as amended from time to time, or the Prospectus, as amended or supplemented from time to time, with respect to the Trading Advisor, or the its affiliates, and controlling persons, shareholders, directors, officers or employees of any of the foregoing, or with respect to the Advisor’s Trading Approach or Past Performance Historypast performance history, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they were made) not misleading; and.
(3c) the Trading The Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date;
(c) a certificate of the Trading Advisor (together with such supporting documents as are set forth in the certificate), in the form proposed prior to the Closing Date by counsel to the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to the Trust, the Managing Owner, the Trading Advisor, and their respective counsel, with respect to, (1) the continued effectiveness of the organizational documents of the Trading Advisor, (2) the continued effectiveness of the Trading Advisor's registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA and (3) the incumbency and genuine signature of the President and Secretary of the Trading Advisor;
(d) a certificate from the state of formation of the Trading Advisor, to be dated at, on or around the Closing Date, as to its formation and good standing, provided that no certificate of formation shall be required at any Subsequent Closing Date.
Appears in 1 contract
Advisor's Closing Obligations. On or prior to the Closing Date (as hereinafter defined) with respect to the initial offering of the Trust with respect to the applicable Series of Units A Interests (the "Initial Closing Date"), and thereafter, only if requested by the Managing Ownerrequested, on or prior to each closing date during the continuous offering of the applicable Series of Units A Interests (each a "Subsequent Closing Date"), the Trading Advisor shall deliver or cause to be delivered, at the expense of the Trading Advisor, to the Selling AgentsPrudential Securities, the Trust, the Trading Company Trust and the Managing Owner, the reports, certificates certificates, documents and documents opinions described below addressed to them and, except as may be set forth below, dated the Initial Closing Date or the Subsequent Closing Date, as appropriateappropriate (provided that the Advisor shall not be obligated to provide an opinion of its counsel more frequently than once per annum absent good cause shown). Unless the context otherwise requires, the Initial Closing Date and each Subsequent Closing Date shall each be referred to as a "Closing Date:",
(a) a a. A report from the Trading Advisor which shall present, for the period from the date after the last day covered by the Trading Advisor's Past Performance History as set forth under "Past Performance InformationInformation - Series A " in the Prospectus to the latest practicable month-end before the Closing Date, figures which shall show the actual past performance of the Trading Advisor (or, if such actual past performance information is unavailable, then the estimated past performance) for such period, and which shall certify that, to the best of its knowledge, such figures are complete and accurate in all material respects;
(b) a . b. A certificate of the Trading Advisor in the form proposed prior to the Closing Date by counsel to Prudential Securities, the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to Prudential Securities, the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to Prudential Securities, the Trust, the Managing Owner, the Trading Advisor, and their respective counsel, to the effect that:
: (1i) the The representations and warranties of the Trading Advisor contained in this Agreement Section 1 above are true and correct in all material respects on the date of the certificate as though made on such date;
(2) nothing has come to the Trading Advisor's attention which would cause the Trading Advisor to believe that, at any time from the time the Registration Statement initially became effective to the Closing Date, the Registration Statement, as amended from time to time, or the Prospectus, as amended or supplemented from time to time, with respect to the Trading Advisor, or the affiliates, controlling persons, shareholders, directors, officers or employees of any of the foregoing, or with respect to the Trading Approach or Past Performance History, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they were made) not misleading; and
(3) the Trading Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date;
(c) a certificate of the Trading Advisor (together with such supporting documents as are set forth in the certificate), in the form proposed prior to the Closing Date by counsel to the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to the Trust, the Managing Owner, the Trading Advisor, and their respective counsel, with respect to, (1) the continued effectiveness of the organizational documents of the Trading Advisor, (2) the continued effectiveness of the Trading Advisor's registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA and (3) the incumbency and genuine signature of the President and Secretary of the Trading Advisor;
(d) a certificate from the state of formation of the Trading Advisor, to be dated at, on or around the Closing Date, as to its formation and good standing, provided that no certificate of formation shall be required at any Subsequent Closing Date.
Appears in 1 contract
Samples: Representation Agreement (World Monitor Trust Series A)
Advisor's Closing Obligations. On or prior to the Closing Date (as hereinafter defined) with respect to the initial offering of the Trust with respect to the applicable Series of Units I Interests (the "Initial Closing Date"), and thereafter, only if requested by the Managing Ownerrequested, on or prior to each closing date during the continuous offering of the applicable Series of Units I Interests (each a "Subsequent Closing Date"), the Trading Advisor shall deliver or cause to be delivered, at the expense of the Trading Advisor, to the Selling AgentsAgent, the Trust, the Trading Company Trust and the Managing Owner, the reports, certificates certificates, documents and documents opinions described below addressed to them and, except as may be set forth below, dated the Initial Closing Date or the Subsequent Closing Date, as appropriateappropriate (provided that the Advisor shall not be obligated to provide either a certificate of good standing or an opinion of its counsel more frequently than once per annum absent good cause shown). Unless the context otherwise requires, the Initial Closing Date and each Subsequent Closing Date shall each be referred to as a "Closing Date:",
(a) a a. A report from the Trading Advisor which shall present, for the period from the date after the last day covered by the Trading Advisor's Past Performance History as set forth under ["Past Performance Information" Information - Series I"] in the Prospectus to the latest practicable month-end before the Closing Date, figures which shall show the actual past performance of the Trading Advisor (or, if such actual past performance information is unavailable, then the estimated past performance) for such period, and which shall certify that, to the best of its knowledge, such figures are complete and accurate in all material respects;.
(b) a b. A certificate of the Trading Advisor in the form proposed prior to the Closing Date by counsel to the Selling Agent, the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to the Selling Agent, the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to the Selling Agent, the Trust, the Managing Owner, the Trading Advisor, and their respective counsel, to the effect that:
(1i) the The representations and warranties of the Trading Advisor contained in this Agreement Section 1 above are true and correct in all material respects on the date of the certificate as though made on such date;.
(2ii) nothing Nothing has come to the Trading Advisor's attention which would cause the Trading Advisor to believe that, at any time from the time the Registration Statement initially became effective to the Closing Date, the Registration Statement, as amended from time to time, or the Prospectus, as amended or supplemented from time to time, with respect to the Trading Advisor, or the affiliates, controlling persons, shareholders, directors, officers or employees of any of the foregoing, or with respect to the Advisor's Trading Approach or Past Performance History, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they were made) not misleading; and.
(3iii) the Trading The Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date;.
(c) a c. A certificate of the Trading Advisor (together with such supporting documents as are set forth in the certificate), in the form proposed prior to the Closing Date by counsel to the Selling Agent, the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to the Selling Agent, the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to the Selling Agent, the Trust, the Managing Owner, the Trading Advisor, and their respective counsel, with respect to, (1i) the continued effectiveness of the organizational documents of the Trading Advisor, (2ii) the continued effectiveness of the Trading Advisor's registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA and (3iii) the incumbency and genuine signature of the President and Secretary of the Trading Advisor;.
(d) a d. A certificate from the state of formation of the Trading Advisor, to be dated at, on or around the Closing Date, as to its formation and good standing.
e. An opinion of counsel, provided that no certificate in form and substance satisfactory to the Trust, the Managing Owner and the Selling Agent and their counsel, dated the Closing Date, to the following effect:
(i) The Advisor is a duly formed and validly existing corporation in good standing under the laws of the state of its formation shall be required at any Subsequent and, if different, the state where it conducts its primary business activity. The Advisor has full corporate power and authority under its Certificate of Incorporation to perform its obligations under the Advisory Agreement and this Agreement, and to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date.
(ii) Each of the Advisory Agreement and this Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor, and assuming the due execution and delivery of each such Agreement by the Trust and the Managing Owner, each such agreement constitutes the legal, valid and binding obligations of the Advisor, enforceable in accordance with their respective terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting creditors rights generally, or by applicable principles of equity, whether in an action at law or in equity, and except that the enforceability of the indemnification provisions may be limited under applicable federal or state securities, commodities and other laws or by public policy; and the execution and delivery of such agreements and the incurrence of the obligations thereunder and the consummation of the transactions set forth in such agreements and in the Prospectus will not violate or result in a breach of the Advisor's formation documents, and, to the best of such counsel's knowledge, after due inquiry, will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
(iii) To the best of such counsel's knowledge, after due inquiry, the Advisor has obtained all required governmental and regulatory licenses, registrations and approvals required by law as may be necessary in order to perform its obligations under the Advisory Agreement and this Agreement and to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date (including, without limitation, registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA) and such licenses, registrations and approvals have not, to the best of such counsel's knowledge, after due inquiry, been rescinded, revoked or otherwise removed.
(iv) Assuming that the Trust is operated as described in the Prospectus, the Advisor is not required to be licensed or registered as an investment adviser under the Advisers Act (even if it voluntarily is so registered), and to such counsel's knowledge, without independent investigation, it is not required to be registered as an investment adviser or commodity trading advisor under the laws of the state of its principal place of business.
(v) To such counsel's knowledge without independent investigation, except as described in the Prospectus, or in a schedule delivered by counsel to the Selling Agent and the Managing Owner prior to the date hereof, there is no pending, or threatened, suit or proceeding, known to such counsel, before or by any court, governmental or regulatory body or arbitration panel to which the Advisor or any of the assets of the Advisor or any of its principals is subject and which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or any of its principals or reasonably might be expected materially adversely to affect any of the assets of the Advisor or any of its principals or which reasonably might be expected to (A) impair materially the Advisor's ability to discharge its obligations to the Trust or (B) result in a matter which would require disclosure in the Registration Statement or Prospectus; and, to the best of such counsel's knowledge, neither the Advisor nor any of its principals has received any notice of an investigation by (i) the NFA regarding non-compliance with its rules or the CE Act, (ii) the CFTC regarding non-compliance with the CE Act or (iii) any exchange, regarding non-compliance with its rules, which investigation reasonably might be expected to (A) impair materially the Advisor's ability to discharge its obligations to the Trust or (B) result in a matter which would require disclosure in the Registration Statement or Prospectus.
(vi) With respect to the Advisor and the affiliates, controlling persons, shareholders, directors, officers and employees of any of the foregoing, and with respect to the Advisor's Trading Approach, nothing has come to the attention of such counsel that leads such counsel to believe that the Registration Statement (at the time it initially became effective and at the time any post-effective amendment thereto became effective) or the Prospectus contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or which is necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they are made) not misleading, except that such counsel is not required to express any opinion or belief as to the financial statements or other financial or statistical data, past performance tables and notes thereto or other past performance information contained in the Registration Statement or the Prospectus. In rendering the foregoing opinions, such counsel may rely (i) as to matters of fact, on a certificate of an officer of the Advisor, unless such counsel has actual knowledge otherwise, and (ii) as to matters of law of states other than that in which they are licensed to practice law, upon the opinions of other counsel, in each case satisfactory in form and substance to counsel to the Managing Owner and the Selling Agent, and such counsel shall state that they believe the Managing Owner and the Selling Agent may rely on them.
Appears in 1 contract
Advisor's Closing Obligations. On or prior to the Closing Date (as hereinafter defined) with respect to the initial offering of the Trust with respect to the applicable Series of Units D Interests (the "Initial Closing Date"), and thereafter, only if requested by the Managing Ownerrequested, on or prior to each closing date during the continuous offering of the applicable Series of Units D Interests (each a "Subsequent Closing Date"), the Trading Advisor shall deliver or cause to be delivered, at the expense of the Trading Advisor, to the Selling AgentsPrudential Securities, the Trust, the Trading Company Trust and the Managing Owner, the reports, certificates certificates, documents and documents opinions described below addressed to them and, except as may be set forth below, dated the Initial Closing Date or the Subsequent Closing Date, as appropriateappropriate (provided that the Advisor shall not be obligated to provide an opinion of its counsel more frequently than once per annum absent good cause shown). Unless the context otherwise requires, the Initial Closing Date and each Subsequent Closing Date shall each be referred to as a "Closing Date:."
(a) a a. A report from the Trading Advisor which shall present, for the period from the date after the last day covered by the Trading Advisor's Past Performance History as set forth under "SERIES D -- Past Performance InformationFor All Of Its Clients" in the Prospectus to the latest practicable month-end before the Closing Date, figures which shall show the actual past performance of the Trading Advisor (or, if such actual past performance information is unavailable, then the estimated past performance) for such period, and which shall certify that, to the best of its the Advisor's knowledge, such figures are complete and accurate in all material respects;.
(b) a b. A certificate of the Trading Advisor in the form proposed prior to the Closing Date by counsel to Prudential Securities, the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and as are acceptable to Prudential Securities, the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to Prudential Securities, the Trust, the Managing Owner, the Trading Advisor, Advisor and their respective counsel, to the effect that:
(1i) the The representations and warranties of the Trading Advisor contained in Section 1 of this Agreement are true and correct in all material respects on the date of the certificate as though made on such date;.
(2ii) nothing Nothing has come to the Trading Advisor's attention which would cause the Trading Advisor to believe that, at any time from the time the Registration Statement initially became effective to the Closing Date, the Registration Statement, as amended from time to time, or the Prospectus, as amended or supplemented from time to time, with respect to the Trading Advisor, or the its affiliates, and controlling persons, shareholders, directors, officers or employees of any of the foregoing, or with respect to the Advisor's Trading Approach or Past Performance History, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they were made) not misleading; and.
(3iii) the Trading The Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date;.
(c) a c. A certificate of the Trading Advisor (together with such supporting documents as are set forth in the such certificate), in the form proposed prior to the Closing Date by counsel to Prudential Securities, the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to Prudential Securities, the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to Prudential Securities, the Trust, the Managing Owner, the Trading Advisor, Advisor and their respective counsel, with respect to, (1i) the continued effectiveness of the organizational documents of the Trading Advisor, (2ii) the continued effectiveness of the Trading Advisor's registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA and (3iii) the incumbency and genuine signature of the President and Secretary of the Trading Advisor;.
(d) a d. A certificate from the state of formation of the Trading Advisor, to be dated at, on or around the Closing Date, as to its formation and good standing.
e. An opinion of counsel, provided that no certificate in form and substance satisfactory to the Trust, the Managing Owner and Prudential Securities and their counsel, dated the Closing Date, to the following effect:
(i) The Advisor is a duly formed and validly existing corporation in good standing under the laws of the state of its formation shall be required at any Subsequent and, if different, the state where it conducts its primary business activity, and the Advisor has full corporate power and authority under its Certificate of Incorporation to perform its obligations under the Advisory Agreement and under this Agreement and to act as described in the Registration Statement as of its effective date and in the Prospectus as of the Closing Date.
(ii) Each of the Advisory Agreement and this Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor, and assuming the due execution and delivery of each such Agreement by the Trust, Prudential Securities, the trustee and the Managing Owner, as applicable, each such agreement constitutes the legal, valid and binding obligations of the Advisor, enforceable in accordance with their respective terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting creditors rights generally, or by applicable principles of equity, whether in an action at law or in equity, and except that the enforceability of the indemnification, exculpation, and severability provisions may be limited under applicable federal or state securities, commodities and other laws or by public policy; and the execution and delivery of such agreements and the incurrence of the obligations thereunder and the consummation of the transactions set forth in such agreements and in the Prospectus will not violate or result in a breach of the Advisor's formation documents, and, to the best of such counsel's knowledge, after due inquiry, will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
(iii) Subject to subparagraph (iv) of this Section 4.e, to the best of such counsel's knowledge, after due inquiry, the Advisor has obtained all required governmental and regulatory licenses, registrations and approvals required by law as may be necessary in order to perform its obligations under the Advisory Agreement and under this Agreement and to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date (including, without limitation, registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA), and such licenses, registrations and approvals have not, to the best of such counsel's knowledge, after due inquiry, been rescinded, revoked or otherwise removed.
(iv) Assuming that the Trust is operated as described in the Prospectus, the Advisor is not required to be licensed or registered as an investment adviser under the Advisers Act (even if it voluntarily is so registered), or to such counsel's knowledge, without independent investigation, as an investment adviser or commodity trading advisor under the laws of any state of the U.S., in order to perform its obligations under the Advisory Agreement or under this Agreement, or to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date. The foregoing opinion may be qualified by the fact that such counsel is not admitted to practice law in all jurisdictions, and by the fact that in rendering its opinion such counsel has relied solely upon an examination of the Blue Sky securities laws and related rules, regulations, and administrative determinations, if any, promulgated thereunder, of the various jurisdictions as reported in customarily relied upon standard compilations, and upon such counsel's understanding of the various conclusions expressed, formally or informally, by administrative officials or other employees of the various regulatory or other governmental agencies or authorities concerned.
(v) To such counsel's knowledge without independent investigation, except as described in the Prospectus or in a schedule delivered by counsel to Prudential Securities and the Managing Owner prior to the date hereof, there is no pending or threatened suit or proceeding, known to such counsel, before or by any court, governmental or regulatory body or arbitration panel to which the Advisor or any of the assets of the Advisor or any of its principals is subject and which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or any of its principals or which reasonably might be expected materially adversely to affect any of the assets of the Advisor or any of its principals or which reasonably might be expected to (A) impair materially the Advisor's ability to discharge its obligations to the Trust or (B) result in a matter which would require disclosure in the Registration Statement or Prospectus; and, to the best of such counsel's knowledge, neither the Advisor nor any of its principals has received any notice of an investigation by (i) the NFA regarding non- compliance with its rules or the CE Act, (ii) the CFTC regarding non-compliance with the CE Act or (iii) any exchange, regarding non-compliance with its rules, which investigation reasonably might be expected to (A) impair materially the Advisor's ability to discharge its obligations to the Trust or (B) result in a matter which would require disclosure in the Registration Statement or Prospectus.
(vi) With respect to the Advisor and its affiliates, and controlling persons, shareholders, directors, officers and employees of any of the foregoing, and with respect to the Advisor's Trading Approach, nothing has come to the attention of such counsel that leads such counsel to believe that the Registration Statement (at the time it initially became effective and at the time any post-effective amendment thereto became effective) or the Prospectus contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or which is necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they are made) not misleading, except that such counsel is not required to express any opinion or belief as to the financial statements or other financial or statistical data, past performance tables, notes, or descriptions thereto or other past performance information contained in the Registration Statement or the Prospectus. In rendering the foregoing opinions, such counsel may rely (i) as to matters of fact, on a certificate of an officer of the Advisor, unless such counsel has actual knowledge otherwise, and (ii) as to matters of law of states other than that in which they are licensed to practice law, upon the opinions of other counsel, in each case satisfactory in form and substance to counsel to the Managing Owner and Prudential Securities, and such counsel shall state that they believe the Managing Owner and Prudential Securities may rely on them.
Appears in 1 contract
Samples: Representation Agreement (World Monitor Trust Ii Series D)
Advisor's Closing Obligations. On or prior to the Closing Date (as hereinafter defined) with respect to the initial offering of the Trust with respect to the applicable Series of Units I Interests and Series J Interests (the "Initial Closing Date"), and thereafter, only if requested by the Managing Ownerrequested, on or prior to each closing date during the continuous offering of the applicable Series of Units I Interests and Series J Interests (each a "Subsequent Closing Date"), the Trading Advisor shall deliver or cause to be delivered, at the expense of the Trading Advisor, to the Selling AgentsAgent, the Trust, the Trading Company Vehicle and the Managing Owner, the reports, certificates certificates, documents and documents opinions described below addressed to them and, except as may be set forth below, dated the Initial Closing Date or the Subsequent Closing Date, as appropriateappropriate (provided that the Advisor shall not be obligated to provide either a certificate of good standing or an opinion of its counsel more frequently than once per annum absent good cause shown). Unless the context otherwise requires, the Initial Closing Date and each Subsequent Closing Date shall each be referred to as a "Closing Date:",
(a) a A report from the Trading Advisor which shall present, for the period from the date after the last day covered by the Trading Advisor's Past Performance History as set forth under "Past Performance InformationEAGLE TRADING SYSTEMS, INC." in the Prospectus to the latest practicable month-end before the Closing Date, figures which shall show the actual past performance of the Trading Advisor (or, if such actual past performance information is unavailable, then the estimated past performance) for such period, and which shall certify that, to the best of its the Advisor's knowledge, such figures are complete and accurate in all material respects;.
(b) a A certificate of the Trading Advisor in the form proposed prior to the Closing Date by counsel to the Trust Selling Agent, the Trust, the Trading Vehicle and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and as are acceptable to the Trust Selling Agent, the Trust, the Trading Vehicle and the Managing Owner and their counsel so as to make such form mutually acceptable to the Selling Agent, the Trust, the Trading Vehicle, the Managing Owner, the Trading Advisor, and their respective counsel, to the effect that:
(1i) the The representations and warranties of the Trading Advisor contained in Section 1 of this Agreement above are true and correct in all material respects on the date of the certificate as though made on such date;.
(2ii) nothing Nothing has come to the Trading Advisor's attention which would cause the Trading Advisor to believe that, at any time from the time the Registration Statement initially became effective to the Closing Date, the Registration Statement, as amended from time to time, or the Prospectus, as amended or supplemented from time to time, with respect to the Trading Advisor, or the its affiliates, and controlling persons, shareholders, directors, officers or employees of any of the foregoing, or with respect to the Advisor's Trading Approach or Past Performance History, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they were made) not misleading; and.
(3iii) the Trading The Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date;.
(c) a A certificate of the Trading Advisor (together with such supporting documents as are set forth in the such certificate), in the form proposed prior to the Closing Date by counsel to the Trust Selling Agent, the Trust, the Trading Vehicle and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to the Trust Selling Agent, the Trust, the Trading Vehicle and the Managing Owner and their counsel so as to make such form mutually acceptable to the Selling Agent, the Trust, the Trading Vehicle, the Managing Owner, the Trading Advisor, Advisor and their respective counsel, with respect to, (1i) the continued effectiveness of the organizational documents of the Trading Advisor, (2ii) the continued effectiveness of the Trading Advisor's registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA and (3iii) the incumbency and genuine signature of the President and Secretary of the Trading Advisor;.
(d) a A certificate from the state of formation of the Trading Advisor, to be dated at, on or around the Closing Date, as to its formation and good standing.
(e) An opinion of counsel, provided that no certificate in form and substance satisfactory to the Trust, the Trading Vehicle, the Managing Owner and the Selling Agent and their counsel, dated the Closing Date, to the following effect:
(i) The Advisor is a duly formed and validly existing corporation in good standing under the laws of the state of its formation shall be required at any Subsequent and, if different, the state where it conducts its primary business activity and the Advisor has full corporate power and authority under its Certificate of Incorporation to perform its obligations under the Advisory Agreement and under this Agreement, and to act as described in the Registration Statement as of its effective date and in the Prospectus as of the Closing Date.
(ii) Each of the Advisory Agreement and this Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor, and assuming the due execution and delivery of each such Agreement by the Trust, the Selling Agent, the Trading Vehicle, the Trustee and the Managing Owner, as applicable, each such agreement constitutes the legal, valid and binding obligations of the Advisor, enforceable in accordance with their respective terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting creditors rights generally, or by applicable principles of equity, whether in an action at law or in equity, and except that the enforceability of the indemnification, exculpation and severability provisions may be limited under applicable federal or state securities, commodities and other laws or by public policy; and the execution and delivery of such agreements and the incurrence of the obligations thereunder and the consummation of the transactions set forth in such agreements and in the Prospectus will not violate or result in a breach of the Advisor's formation documents, and, to the best of such counsel's knowledge, after due inquiry, will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
(iii) Subject to subparagraph (iv) of this Section 4(e), to the best of such counsel's knowledge, after due inquiry, the Advisor has obtained all required governmental and regulatory licenses, registrations and approvals required by law as may be necessary in order to perform its obligations under the Advisory Agreement and under this Agreement and to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date (including, without limitation, registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA) and such licenses, registrations and approvals have not, to the best of such counsel's knowledge, after due inquiry, been rescinded, revoked or otherwise removed.
(iv) Assuming that the Trust is operated as described in the Prospectus, the Advisor is not required to be licensed or registered as an investment adviser under the Advisers Act (even if it voluntarily is so registered), or to such counsel's knowledge, without independent investigation, as an investment adviser or commodity trading advisor under the laws of any state of the U.S., in order to perform its obligations under the Advisory Agreement or under this Agreement, or to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date. The foregoing opinion may be qualified by the fact that such counsel is not admitted to practice law in all jurisdictions, and by the fact that in rendering its opinion such counsel has relied solely upon an examination of the Blue Sky securities laws and related rules, regulations, and administrative determinations, if any, promulgated thereunder, of the various jurisdictions as reported in customarily relied upon standard compilations, and upon such counsel's understanding of the various conclusions expressed, formally or informally, by administrative officials or other employees of the various regulatory or other governmental agencies or authorities concerned.
(v) To such counsel's knowledge without independent investigation, except as described in the Prospectus, or in a schedule delivered by counsel to the Selling Agent, the Trading Vehicle and the Managing Owner prior to the date hereof, there is no pending, or threatened, suit or proceeding, known to such counsel, before or by any court, governmental or regulatory body or arbitration panel to which the Advisor or any of the assets of the Advisor or any of its principals is subject and which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or any of its principals or which reasonably might be expected materially adversely to affect any of the assets of the Advisor or any of its principals or which reasonably might be expected to (A) impair materially the Advisor's ability to discharge its obligations to the Trading Vehicle or (B) result in a matter which would require disclosure in the Registration Statement or Prospectus; and, to the best of such counsel's knowledge, neither the Advisor nor any of its principals has received any notice of an investigation by (i) the NFA regarding non-compliance with its rules or the CE Act, (ii) the CFTC regarding non-compliance with the CE Act or (iii) any exchange, regarding non-compliance with its rules, which investigation reasonably might be expected to (A) impair materially the Advisor's ability to discharge its obligations to the Trading Vehicle or (B) result in a matter which would require disclosure in the Registration Statement or Prospectus.
(vi) With respect to the Advisor and its affiliates and controlling persons, shareholders, directors, officers and employees of any of the foregoing, and with respect to the Advisor's Trading Approach, nothing has come to the attention of such counsel that leads such counsel to believe that the Registration Statement (at the time it initially became effective and at the time any post-effective amendment thereto became effective) or the Prospectus contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or which is necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they are made) not misleading, except that such counsel is not required to express any opinion or belief as to the financial statements or other financial or statistical data, past performance tables, notes or descriptions thereto or other past performance information contained in the Registration Statement or in the Prospectus. In rendering the foregoing opinions, such counsel may rely (i) as to matters of fact, on a certificate of an officer of the Advisor, unless such counsel has actual knowledge otherwise, and (ii) as to matters of law of states other than that in which they are licensed to practice law, upon the opinions of other counsel, in each case satisfactory in form and substance to counsel to the Managing Owner, the Trading Vehicle and the Selling Agent, and such counsel shall state that they believe the Managing Owner, the Trading Vehicle and the Selling Agent may rely on them.
Appears in 1 contract
Advisor's Closing Obligations. On or prior to the Closing Date (as hereinafter defined) with respect to the initial offering of the Trust with respect to the applicable Series of Units F Interests (the "Initial Closing Date"), and thereafter, only if requested by the Managing Ownerrequested, on or prior to each closing date during the continuous offering of the applicable Series of Units F Interests (each a "Subsequent Closing Date"), the Trading Advisor shall deliver or cause to be delivered, at the expense of the Trading Advisor, to the Selling AgentsPrudential Securities, the Trust, the Trading Company Trust and the Managing Owner, the reports, certificates certificates, documents and documents opinions described below addressed to them and, except as may be set forth below, dated the Initial Closing Date or the Subsequent Closing Date, as appropriateappropriate (provided that the Advisor shall not be obligated to provide a certificate of good standing or an opinion of its counsel more frequently than once per annum absent good cause shown). Unless the context otherwise requires, the Initial Closing Date and each Subsequent Closing Date shall each be referred to as a "Closing Date:."
(a) a a. A report from the Trading Advisor which shall present, for the period from the date after the last day covered by the Trading Advisor's Past Performance History as set forth under "SERIES F -- Past Performance InformationFor All Of Its Clients" in the Prospectus to the latest practicable month-end before the Closing Date, figures which shall show the actual past performance of the Trading Advisor (or, if such actual past performance information is unavailable, then the estimated past performance) for such period, and which shall certify that, to the best of its the Advisor's knowledge, such figures are complete and accurate in all material respects;.
(b) a b. A certificate of the Trading Advisor in the form proposed prior to the Closing Date by counsel to Prudential Securities, the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and as are acceptable to Prudential Securities, the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to Prudential Securities, the Trust, the Managing Owner, the Trading Advisor, Advisor and their respective counsel, to the effect that:
(1i) the The representations and warranties of the Trading Advisor contained in Section 1 of this Agreement are true and correct in all material respects on the date of the certificate as though made on such date;.
(2ii) nothing Nothing has come to the Trading Advisor's attention which would cause the Trading Advisor to believe that, at any time from the time the Registration Statement initially became effective to the Closing Date, the Registration Statement, as amended from time to time, or the Prospectus, as amended or supplemented from time to time, with respect to the Trading Advisor, or the its affiliates, and controlling persons, shareholders, directors, officers or employees of any of the foregoing, or with respect to the Advisor's Trading Approach or Past Performance History, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they were made) not misleading; and.
(3iii) the Trading The Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date;.
(c) a c. A certificate of the Trading Advisor (together with such supporting documents as are set forth in the such certificate), in the form proposed prior to the Closing Date by counsel to Prudential Securities, the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to Prudential Securities, the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to Prudential Securities, the Trust, the Managing Owner, the Trading Advisor, Advisor and their respective counsel, with respect to, (1i) the continued effectiveness of the organizational documents of the Trading Advisor, (2ii) the continued effectiveness of the Trading Advisor's registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA and (3iii) the incumbency and genuine signature of the President and Secretary of the Trading Advisor;.
(d) a d. A certificate from the state of formation of the Trading Advisor, to be dated at, on or around the Closing Date, as to its formation and good standing.
e. An opinion or opinions of counsel, provided that no certificate in form and substance satisfactory to the Trust, the Managing Owner and Prudential Securities and their counsel (which they will not unreasonably object to), dated the Closing Date, to the following effect:
(i) The Advisor is a duly formed and validly existing corporation in good standing under the laws of the state of its formation shall be required at any Subsequent and, if different, the state where it conducts its primary business activity, and the Advisor has full corporate power and authority under its Certificate of Incorporation to perform its obligations under the Advisory Agreement and under this Agreement and to act as described in the Registration Statement as of its effective date and in the Prospectus as of the Closing Date.
(ii) Each of the Advisory Agreement and this Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor, and assuming the due execution and delivery of each such Agreement by the Trust, Prudential Securities, the trustee and the Managing Owner, as applicable, each such agreement constitutes the legal, valid and binding obligations of the Advisor, enforceable in accordance with their respective terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting creditors rights generally, or by applicable principles of equity, whether in an action at law or in equity, and except that the enforceability of the indemnification, exculpation, and severability provisions may be limited under applicable federal or state securities, commodities and other laws or by public policy; and the execution and delivery of such agreements and the incurrence of the obligations thereunder and the consummation of the transactions set forth in such agreements and in the Prospectus will not violate or result in a breach of the Advisor's formation documents, and, to the best of such counsel's knowledge, after due inquiry, will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
(iii) Subject to subparagraph (iv) of this Section 4.e, to the best of such counsel's knowledge, after due inquiry, the Advisor has obtained all required governmental and regulatory licenses, registrations and approvals required by law as may be necessary in order to perform its obligations under the Advisory Agreement and under this Agreement and to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date (including, without limitation, registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA), and such licenses, registrations and approvals have not, to the best of such counsel's knowledge, after due inquiry, been rescinded, revoked or otherwise removed.
(iv) Assuming that the Trust is operated as described in the Prospectus, the Advisor is not required to be licensed or registered as an investment adviser under the Advisers Act (even if it voluntarily is so registered), or to such counsel's knowledge, without independent investigation, as an investment adviser or commodity trading advisor under the laws of New York and Maryland, in order to perform its obligations under the Advisory Agreement or under this Agreement, or to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date. The foregoing opinion may be qualified by the fact that such counsel is not admitted to practice law in all jurisdictions, and by the fact that in rendering its opinion such counsel has relied solely upon an examination of the Blue Sky securities laws and related rules, regulations, and administrative determinations, if any, promulgated thereunder, of the various jurisdictions as reported in customarily relied upon standard compilations, and upon such counsel's understanding of the various conclusions expressed, formally or informally, by administrative officials or other employees of the various regulatory or other governmental agencies or authorities concerned.
(v) To such counsel's knowledge without independent investigation, except as described in the Prospectus or in a schedule delivered by counsel to Prudential Securities and the Managing Owner prior to the date hereof, there is no pending or threatened suit or proceeding, known to such counsel, before or by any court, governmental or regulatory body or arbitration panel to which the Advisor or any of the assets of the Advisor or any of its principals is subject and which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or any of its principals or which reasonably might be expected materially adversely to affect any of the assets of the Advisor or any of its principals or which reasonably might be expected to (A) impair materially the Advisor's ability to discharge its obligations to the Trust or (B) result in a matter which would require disclosure in the Registration Statement or Prospectus; and, to the best of such counsel's knowledge, neither the Advisor nor any of its principals has received any notice of an investigation by (i) the NFA regarding non- compliance with its rules or the CE Act, (ii) the CFTC regarding non-compliance with the CE Act or (iii) any exchange, regarding non-compliance with its rules, which investigation reasonably might be expected to (A) impair materially the Advisor's ability to discharge its obligations to the Trust or (B) result in a matter which would require disclosure in the Registration Statement or Prospectus.
(vi) With respect to the Advisor and its affiliates, and controlling persons, shareholders, directors, officers and employees of any of the foregoing, and with respect to the Advisor's Trading Approach, nothing has come to the attention of such counsel that leads such counsel to believe that the Registration Statement (at the time it initially became effective and at the time any post-effective amendment thereto became effective) or the Prospectus contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or which is necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they are made) not misleading, except that such counsel is not required to express any opinion or belief as to the financial statements or other financial or statistical data, past performance tables, notes, or descriptions thereto or other past performance information contained in the Registration Statement or the Prospectus. In rendering the foregoing opinions, such counsel may rely (i) as to matters of fact, on a certificate of an officer of the Advisor, unless such counsel has actual knowledge otherwise, and (ii) as to matters of law of states other than that in which they are licensed to practice law, upon the opinions of other counsel, in each case satisfactory in form and substance to counsel to the Managing Owner and Prudential Securities, and such counsel shall state that they believe the Managing Owner and Prudential Securities may rely on them.
Appears in 1 contract
Samples: Representation Agreement (World Monitor Trust Ii Series F)
Advisor's Closing Obligations. On or prior to the a Closing Date (as hereinafter defined) with respect to the initial offering of the Trust with respect to the applicable Series of Units (the "Initial Closing Date"), and thereafterInterests, only if requested by the Managing Owner, on or prior to each closing date during the continuous offering of the applicable Series of Units (each a "Subsequent “Closing Date"”), the Trading Advisor shall deliver or cause to be delivered, at the expense of the Trading AdvisorTrust, to the Selling Agents, the Trust, the Trading Company Series J and the Managing Owner, the reports, certificates certificates, documents and documents opinions described below addressed to them and, except as may be set forth below, dated the Initial Closing Date (provided that the Advisor shall not be obligated to provide either a certificate of good standing or the Subsequent Closing Date, as appropriate. Unless the context otherwise requires, the Initial Closing Date and each Subsequent Closing Date shall each be referred to as a "Closing Date:"an opinion of its counsel more frequently than once per annum absent good cause shown).
(a) a A report from the Trading Advisor which shall present, for the period from the date after the last day covered by the Trading Advisor's ’s Past Performance History as set forth under "Past Performance Information" “GLC LIMITED” in the Prospectus Memorandum to the latest practicable month-end before the Closing Date, figures which shall show the actual past performance of the Trading Advisor (or, if such actual past performance information is unavailable, then the estimated past performance) for such period, and which shall certify that, to the best of its the Advisor’s knowledge, such figures are complete and accurate in all material respects;.
(b) a A certificate of the Trading Advisor in the form proposed prior to the Closing Date by counsel to the Trust Trust, Series J and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and as are acceptable to the Trust Trust, Series J and the Managing Owner and their counsel so as to make such form mutually acceptable to the Trust, Series J, the Managing Owner, the Trading Advisor, and their respective counsel, to the effect that:
(1i) the The representations and warranties of the Trading Advisor contained in Section 1 of this Agreement above are true and correct in all material respects on the date of the certificate as though made on such date;.
(2ii) nothing Nothing has come to the Trading Advisor's ’s attention which would cause the Trading Advisor to believe that, at any time from that the time the Registration Statement initially became effective to the Closing Date, the Registration Statement, as amended from time to time, or the ProspectusMemorandum, as amended or supplemented from time to time, with respect to the Trading Advisor, or the its affiliates, and controlling persons, shareholders, directors, officers or employees of any of the foregoing, or with respect to the Advisor’s Trading Approach or Past Performance History, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectustherein, in light of the circumstances in which they were made) , not misleading; and.
(3iii) the Trading The Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date;.
(c) a A certificate of the Trading Advisor (together with such supporting documents as are set forth in the such certificate), in the form proposed prior to the Closing Date by counsel to the Trust Trust, Series J and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to the Trust Trust, Series J and the Managing Owner and their counsel so as to make such form mutually acceptable to the Trust, Series J, the Managing Owner, the Trading Advisor, Advisor and their respective counsel, with respect to, (1i) the continued effectiveness of the organizational documents of the Trading Advisor, (2ii) the continued effectiveness of the Trading Advisor's ’s registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor an investment manager with the NFA FSA and (3iii) the incumbency and genuine signature of the President and Secretary of the Trading Advisor;.
(d) a A certificate from the state of formation of the Trading Advisor, to be dated at, on or around the Closing Date, as to its formation and good standing.
(e) An opinion of counsel, provided that no certificate in form and substance satisfactory to the Trust, Series J and the Managing Owner and their counsel, dated the Closing Date, to the following effect:
(i) The Advisor is a duly formed and validly existing corporation in good standing under the laws of the state of its formation shall be required at any Subsequent and, if different, the state where it conducts its primary business activity and the Advisor has full corporate power and authority under its Certificate of Incorporation to perform its obligations under the Advisory Agreement and under this Agreement, and to act as described in the Memorandum as of the Closing Date.
(ii) Each of the Advisory Agreement and this Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor, and assuming the due execution and delivery of each such Agreement by the Trust, Series J, the Trustee and the Managing Owner, as applicable, each such agreement constitutes the legal, valid and binding obligations of the Advisor, enforceable in accordance with their respective terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting creditors rights generally, or by applicable principles of equity, whether in an action at law or in equity, and except that the enforceability of the indemnification, exculpation and severability provisions may be limited under applicable federal or state securities, commodities and other laws or by public policy; and the execution and delivery of such agreements and the incurrence of the obligations thereunder and the consummation of the transactions set forth in such agreements and in the Memorandum will not violate or result in a breach of the Advisor’s formation documents, and, to the best of such counsel’s knowledge, after due inquiry, will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
(iii) Subject to subparagraph (iv) of this Section 4(e), to the best of such counsel’s knowledge, after due inquiry, the Advisor has obtained all required governmental and regulatory licenses, registrations and approvals required by law as may be necessary in order to perform its obligations under the Advisory Agreement and under this Agreement and to act as described in the Memorandum as of the Closing Date (including, without limitation, registration as an investment manager with the FSA) and such licenses, registrations and approvals have not, to the best of such counsel’s knowledge, after due inquiry, been rescinded, revoked or otherwise removed.
(iv) Assuming that the Trust is operated as described in the Memorandum, the Advisor is not required to be licensed or registered as an investment adviser under the Advisers Act (even if it voluntarily is so registered), or to such counsel’s knowledge, without independent investigation, as an investment adviser or commodity trading advisor under the laws of any state of the U.S., in order to perform its obligations under the Advisory Agreement or under this Agreement, or to act as described in the Memorandum as of the Closing Date. The foregoing opinion may be qualified by the fact that such counsel is not admitted to practice law in all jurisdictions, and by the fact that in rendering its opinion such counsel has relied solely upon an examination of the Blue Sky securities laws and related rules, regulations, and administrative determinations, if any, promulgated thereunder, of the various jurisdictions as reported in customarily relied upon standard compilations, and upon such counsel’s understanding of the various conclusions expressed, formally or informally, by administrative officials or other employees of the various regulatory or other governmental agencies or authorities concerned.
(v) To such counsel’s knowledge without independent investigation, except as described in the Memorandum, or in a schedule delivered by counsel to Series J and the Managing Owner prior to the date hereof, there is no pending, or threatened, suit or proceeding, known to such counsel, before or by any court, governmental or regulatory body or arbitration panel to which the Advisor or any of the assets of the Advisor or any of its principals is subject and which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or any of its principals or which reasonably might be expected materially adversely to affect any of the assets of the Advisor or any of its principals or which reasonably might be expected to (A) impair materially the Advisor’s ability to discharge its obligations to Series J or (B) result in a matter which would require disclosure in the Memorandum; and, to the best of such counsel’s knowledge, neither the Advisor nor any of its principals has received any notice of an investigation by (i) the NFA regarding non-compliance with its rules or the CE Act, (ii) the CFTC regarding non-compliance with the CE Act or (iii) any exchange, regarding non-compliance with its rules, which investigation reasonably might be expected to (A) impair materially the Advisor’s ability to discharge its obligations to Series J or (B) result in a matter which would require disclosure in the Memorandum.
(vi) With respect to the Advisor and its affiliates and controlling persons, shareholders, directors, officers and employees of any of the foregoing, and with respect to the Advisor’s Trading Approach, nothing has come to the attention of such counsel that leads such counsel to believe that the Memorandum contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or which is necessary to make the statements therein, in light of the circumstances in which they are made, not misleading, except that such counsel is not required to express any opinion or belief as to the financial statements or other financial or statistical data, past performance tables, notes or descriptions thereto or other past performance information contained in the Memorandum. In rendering the foregoing opinions, such counsel may rely (i) as to matters of fact, on a certificate of an officer of the Advisor, unless such counsel has actual knowledge otherwise, and (ii) as to matters of law of states other than that in which they are licensed to practice law, upon the opinions of other counsel, in each case satisfactory in form and substance to counsel to the Managing Owner, the Trust and Series J, and such counsel shall state that they believe the Managing Owner, the Trust and Series J may rely on them.
Appears in 1 contract
Samples: Advisory Agreement (World Monitor Trust III - Series J)
Advisor's Closing Obligations. On or prior to the a Closing Date (as hereinafter defined) with respect to the initial offering of the Trust with respect to the applicable Series of Units (the "Initial Closing Date"), and thereafterInterests, only if requested by the Managing Owner, on or prior to each closing date during the continuous offering of the applicable Series of Units (each a "Subsequent “Closing Date"”), the Trading Advisor shall deliver or cause to be delivered, at the expense of the Trading AdvisorTrust, to the Selling AgentsAgent, the Trust, the Trading Company Series J and the Managing Owner, the reports, certificates certificates, documents and documents opinions described below addressed to them and, except as may be set forth below, dated the Initial Closing Date (provided that the Advisor shall not be obligated to provide either a certificate of good standing or the Subsequent Closing Date, as appropriate. Unless the context otherwise requires, the Initial Closing Date and each Subsequent Closing Date shall each be referred to as a "Closing Date:"an opinion of its counsel more frequently than once per annum absent good cause shown).
(a) a A report from the Trading Advisor which shall present, for the period from the date after the last day covered by the Trading Advisor's ’s Past Performance History as set forth under "Past Performance Information" “EAGLE TRADING SYSTEMS, INC.” in the Prospectus Memorandum to the latest practicable month-end before the Closing Date, figures which shall show the actual past performance of the Trading Advisor (or, if such actual past performance information is unavailable, then the estimated past performance) for such period, and which shall certify that, to the best of its the Advisor’s knowledge, such figures are complete and accurate in all material respects;.
(b) a A certificate of the Trading Advisor in the form proposed prior to the Closing Date by counsel to the Trust Selling Agent, the Trust, Series J and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and as are acceptable to the Trust Selling Agent, the Trust, Series J and the Managing Owner and their counsel so as to make such form mutually acceptable to the Selling Agent, the Trust, Series J, the Managing Owner, the Trading Advisor, and their respective counsel, to the effect that:
(1i) the The representations and warranties of the Trading Advisor contained in Section 1 of this Agreement above are true and correct in all material respects on the date of the certificate as though made on such date;.
(2ii) nothing Nothing has come to the Trading Advisor's ’s attention which would cause the Trading Advisor to believe that, at any time from that the time the Registration Statement initially became effective to the Closing Date, the Registration Statement, as amended from time to time, or the ProspectusMemorandum, as amended or supplemented from time to time, with respect to the Trading Advisor, or the its affiliates, and controlling persons, shareholders, directors, officers or employees of any of the foregoing, or with respect to the Advisor’s Trading Approach or Past Performance History, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectustherein, in light of the circumstances in which they were made) , not misleading; and.
(3iii) the Trading The Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date;.
(c) a A certificate of the Trading Advisor (together with such supporting documents as are set forth in the such certificate), in the form proposed prior to the Closing Date by counsel to the Trust Selling Agent, the Trust, Series J and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to the Trust Selling Agent, the Trust, Series J and the Managing Owner and their counsel so as to make such form mutually acceptable to the Selling Agent, the Trust, Series J, the Managing Owner, the Trading Advisor, Advisor and their respective counsel, with respect to, (1i) the continued effectiveness of the organizational documents of the Trading Advisor, (2ii) the continued effectiveness of the Trading Advisor's ’s registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA and (3iii) the incumbency and genuine signature of the President and Secretary of the Trading Advisor;.
(d) a A certificate from the state of formation of the Trading Advisor, to be dated at, on or around the Closing Date, as to its formation and good standing.
(e) An opinion of counsel, provided that no certificate in form and substance satisfactory to the Trust, Series J, the Managing Owner and the Selling Agent and their counsel, dated the Closing Date, to the following effect:
(i) The Advisor is a duly formed and validly existing corporation in good standing under the laws of the state of its formation shall be required at any Subsequent and, if different, the state where it conducts its primary business activity and the Advisor has full corporate power and authority under its Certificate of Incorporation to perform its obligations under the Advisory Agreement and under this Agreement, and to act as described in the Memorandum as of the Closing Date.
(ii) Each of the Advisory Agreement and this Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor, and assuming the due execution and delivery of each such Agreement by the Trust, the Selling Agent, Series J, the Trustee and the Managing Owner, as applicable, each such agreement constitutes the legal, valid and binding obligations of the Advisor, enforceable in accordance with their respective terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting creditors rights generally, or by applicable principles of equity, whether in an action at law or in equity, and except that the enforceability of the indemnification, exculpation and severability provisions may be limited under applicable federal or state securities, commodities and other laws or by public policy; and the execution and delivery of such agreements and the incurrence of the obligations thereunder and the consummation of the transactions set forth in such agreements and in the Memorandum will not violate or result in a breach of the Advisor’s formation documents, and, to the best of such counsel’s knowledge, after due inquiry, will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
(iii) Subject to subparagraph (iv) of this Section 4(e), to the best of such counsel’s knowledge, after due inquiry, the Advisor has obtained all required governmental and regulatory licenses, registrations and approvals required by law as may be necessary in order to perform its obligations under the Advisory Agreement and under this Agreement and to act as described in the Memorandum as of the Closing Date (including, without limitation, registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA) and such licenses, registrations and approvals have not, to the best of such counsel’s knowledge, after due inquiry, been rescinded, revoked or otherwise removed.
(iv) Assuming that the Trust is operated as described in the Memorandum, the Advisor is not required to be licensed or registered as an investment adviser under the Advisers Act (even if it voluntarily is so registered), or to such counsel’s knowledge, without independent investigation, as an investment adviser or commodity trading advisor under the laws of any state of the U.S., in order to perform its obligations under the Advisory Agreement or under this Agreement, or to act as described in the Memorandum as of the Closing Date. The foregoing opinion may be qualified by the fact that such counsel is not admitted to practice law in all jurisdictions, and by the fact that in rendering its opinion such counsel has relied solely upon an examination of the Blue Sky securities laws and related rules, regulations, and administrative determinations, if any, promulgated thereunder, of the various jurisdictions as reported in customarily relied upon standard compilations, and upon such counsel’s understanding of the various conclusions expressed, formally or informally, by administrative officials or other employees of the various regulatory or other governmental agencies or authorities concerned.
(v) To such counsel’s knowledge without independent investigation, except as described in the Memorandum, or in a schedule delivered by counsel to the Selling Agent, Series J and the Managing Owner prior to the date hereof, there is no pending, or threatened, suit or proceeding, known to such counsel, before or by any court, governmental or regulatory body or arbitration panel to which the Advisor or any of the assets of the Advisor or any of its principals is subject and which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or any of its principals or which reasonably might be expected materially adversely to affect any of the assets of the Advisor or any of its principals or which reasonably might be expected to (A) impair materially the Advisor’s ability to discharge its obligations to Series J or (B) result in a matter which would require disclosure in the Memorandum; and, to the best of such counsel’s knowledge, neither the Advisor nor any of its principals has received any notice of an investigation by (i) the NFA regarding non-compliance with its rules or the CE Act, (ii) the CFTC regarding non-compliance with the CE Act or (iii) any exchange, regarding non-compliance with its rules, which investigation reasonably might be expected to (A) impair materially the Advisor’s ability to discharge its obligations to Series J or (B) result in a matter which would require disclosure in the Memorandum.
(vi) With respect to the Advisor and its affiliates and controlling persons, shareholders, directors, officers and employees of any of the foregoing, and with respect to the Advisor’s Trading Approach, nothing has come to the attention of such counsel that leads such counsel to believe that the Memorandum contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or which is necessary to make the statements therein, in light of the circumstances in which they are made, not misleading, except that such counsel is not required to express any opinion or belief as to the financial statements or other financial or statistical data, past performance tables, notes or descriptions thereto or other past performance information contained in the Memorandum. In rendering the foregoing opinions, such counsel may rely (i) as to matters of fact, on a certificate of an officer of the Advisor, unless such counsel has actual knowledge otherwise, and (ii) as to matters of law of states other than that in which they are licensed to practice law, upon the opinions of other counsel, in each case satisfactory in form and substance to counsel to the Managing Owner, Series J and the Selling Agent, and such counsel shall state that they believe the Managing Owner, Series J and the Selling Agent may rely on them.
Appears in 1 contract
Samples: Advisory Agreement (World Monitor Trust III - Series J)
Advisor's Closing Obligations. On or prior to the Closing Date (as hereinafter defined) with respect to the initial offering of the Trust with respect to the applicable Series of Units Interests (the "“Initial Closing Date"”), and thereafter, only if requested by the Managing Ownerrequested, on or prior to each closing date during the continuous offering of the applicable Series of Units Interests (each a "“Subsequent Closing Date"”), the Trading Advisor shall deliver or cause to be delivered, at the expense of the Trading Advisor, to the Selling AgentsAgent, the Trust, the Trading Company Series J and the Managing Owner, the reports, certificates certificates, documents and documents opinions described below addressed to them and, except as may be set forth below, dated the Initial Closing Date or the Subsequent Closing Date, as appropriateappropriate (provided that the Advisor shall not be obligated to provide either a certificate of good standing or an opinion of its counsel more frequently than once per annum absent good cause shown). Unless the context otherwise requires, the Initial Closing Date and each Subsequent Closing Date shall each be referred to as a "“Closing Date:"”,
(a) a A report from the Trading Advisor which shall present, for the period from the date after the last day covered by the Trading Advisor's ’s Past Performance History as set forth under "Past Performance Information" “EAGLE TRADING SYSTEMS, INC.” in the Prospectus to the latest practicable month-end before the Closing Date, figures which shall show the actual past performance of the Trading Advisor (or, if such actual past performance information is unavailable, then the estimated past performance) for such period, and which shall certify that, to the best of its the Advisor’s knowledge, such figures are complete and accurate in all material respects;.
(b) a A certificate of the Trading Advisor in the form proposed prior to the Closing Date by counsel to the Trust Selling Agent, the Trust, Series J and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and as are acceptable to the Trust Selling Agent, the Trust, Series J and the Managing Owner and their counsel so as to make such form mutually acceptable to the Selling Agent, the Trust, Series J, the Managing Owner, the Trading Advisor, and their respective counsel, to the effect that:
(1i) the The representations and warranties of the Trading Advisor contained in Section 1 of this Agreement above are true and correct in all material respects on the date of the certificate as though made on such date;.
(2ii) nothing Nothing has come to the Trading Advisor's ’s attention which would cause the Trading Advisor to believe that, at any time from the time the Registration Statement initially became effective to the Closing Date, the Registration Statement, as amended from time to time, or the Prospectus, as amended or supplemented from time to time, with respect to the Trading Advisor, or the its affiliates, and controlling persons, shareholders, directors, officers or employees of any of the foregoing, or with respect to the Advisor’s Trading Approach or Past Performance History, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they were made) not misleading; and.
(3iii) the Trading The Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date;.
(c) a A certificate of the Trading Advisor (together with such supporting documents as are set forth in the such certificate), in the form proposed prior to the Closing Date by counsel to the Trust Selling Agent, the Trust, Series J and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to the Trust Selling Agent, the Trust, Series J and the Managing Owner and their counsel so as to make such form mutually acceptable to the Selling Agent, the Trust, Series J, the Managing Owner, the Trading Advisor, Advisor and their respective counsel, with respect to, (1i) the continued effectiveness of the organizational documents of the Trading Advisor, (2ii) the continued effectiveness of the Trading Advisor's ’s registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA and (3iii) the incumbency and genuine signature of the President and Secretary of the Trading Advisor;.
(d) a A certificate from the state of formation of the Trading Advisor, to be dated at, on or around the Closing Date, as to its formation and good standing.
(e) An opinion of counsel, provided that no certificate in form and substance satisfactory to the Trust, Series J, the Managing Owner and the Selling Agent and their counsel, dated the Closing Date, to the following effect:
(i) The Advisor is a duly formed and validly existing corporation in good standing under the laws of the state of its formation shall be required at any Subsequent and, if different, the state where it conducts its primary business activity and the Advisor has full corporate power and authority under its Certificate of Incorporation to perform its obligations under the Advisory Agreement and under this Agreement, and to act as described in the Registration Statement as of its effective date and in the Prospectus as of the Closing Date.
(ii) Each of the Advisory Agreement and this Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor, and assuming the due execution and delivery of each such Agreement by the Trust, the Selling Agent, Series J, the Trustee and the Managing Owner, as applicable, each such agreement constitutes the legal, valid and binding obligations of the Advisor, enforceable in accordance with their respective terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting creditors rights generally, or by applicable principles of equity, whether in an action at law or in equity, and except that the enforceability of the indemnification, exculpation and severability provisions may be limited under applicable federal or state securities, commodities and other laws or by public policy; and the execution and delivery of such agreements and the incurrence of the obligations thereunder and the consummation of the transactions set forth in such agreements and in the Prospectus will not violate or result in a breach of the Advisor’s formation documents, and, to the best of such counsel’s knowledge, after due inquiry, will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
(iii) Subject to subparagraph (iv) of this Section 4(e), to the best of such counsel’s knowledge, after due inquiry, the Advisor has obtained all required governmental and regulatory licenses, registrations and approvals required by law as may be necessary in order to perform its obligations under the Advisory Agreement and under this Agreement and to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date (including, without limitation, registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA) and such licenses, registrations and approvals have not, to the best of such counsel’s knowledge, after due inquiry, been rescinded, revoked or otherwise removed.
(iv) Assuming that the Trust is operated as described in the Prospectus, the Advisor is not required to be licensed or registered as an investment adviser under the Advisers Act (even if it voluntarily is so registered), or to such counsel’s knowledge, without independent investigation, as an investment adviser or commodity trading advisor under the laws of any state of the U.S., in order to perform its obligations under the Advisory Agreement or under this Agreement, or to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date. The foregoing opinion may be qualified by the fact that such counsel is not admitted to practice law in all jurisdictions, and by the fact that in rendering its opinion such counsel has relied solely upon an examination of the Blue Sky securities laws and related rules, regulations, and administrative determinations, if any, promulgated thereunder, of the various jurisdictions as reported in customarily relied upon standard compilations, and upon such counsel’s understanding of the various conclusions expressed, formally or informally, by administrative officials or other employees of the various regulatory or other governmental agencies or authorities concerned.
(v) To such counsel’s knowledge without independent investigation, except as described in the Prospectus, or in a schedule delivered by counsel to the Selling Agent, Series J and the Managing Owner prior to the date hereof, there is no pending, or threatened, suit or proceeding, known to such counsel, before or by any court, governmental or regulatory body or arbitration panel to which the Advisor or any of the assets of the Advisor or any of its principals is subject and which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or any of its principals or which reasonably might be expected materially adversely to affect any of the assets of the Advisor or any of its principals or which reasonably might be expected to (A) impair materially the Advisor’s ability to discharge its obligations to Series J or (B) result in a matter which would require disclosure in the Registration Statement or Prospectus; and, to the best of such counsel’s knowledge, neither the Advisor nor any of its principals has received any notice of an investigation by (i) the NFA regarding non-compliance with its rules or the CE Act, (ii) the CFTC regarding non-compliance with the CE Act or (iii) any exchange, regarding non-compliance with its rules, which investigation reasonably might be expected to (A) impair materially the Advisor’s ability to discharge its obligations to Series J or (B) result in a matter which would require disclosure in the Registration Statement or Prospectus.
(vi) With respect to the Advisor and its affiliates and controlling persons, shareholders, directors, officers and employees of any of the foregoing, and with respect to the Advisor’s Trading Approach, nothing has come to the attention of such counsel that leads such counsel to believe that the Registration Statement (at the time it initially became effective and at the time any post-effective amendment thereto became effective) or the Prospectus contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or which is necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they are made) not misleading, except that such counsel is not required to express any opinion or belief as to the financial statements or other financial or statistical data, past performance tables, notes or descriptions thereto or other past performance information contained in the Registration Statement or in the Prospectus. In rendering the foregoing opinions, such counsel may rely (i) as to matters of fact, on a certificate of an officer of the Advisor, unless such counsel has actual knowledge otherwise, and (ii) as to matters of law of states other than that in which they are licensed to practice law, upon the opinions of other counsel, in each case satisfactory in form and substance to counsel to the Managing Owner, Series J and the Selling Agent, and such counsel shall state that they believe the Managing Owner, Series J and the Selling Agent may rely on them.
Appears in 1 contract
Samples: Advisory Agreement (WMT III Series G/J Trading Vehicle LLC)
Advisor's Closing Obligations. On or prior to the Closing Date (as hereinafter defined) with respect to the initial offering of the Trust with respect to the applicable Series of Units F Interests (the "Initial Closing Date"), and thereafter, only if requested by the Managing Ownerrequested, on or prior to each closing date during the continuous offering of the applicable Series of Units F Interests (each a "Subsequent Closing Date"), the Trading Advisor shall deliver or cause to be delivered, at the expense of the Trading Advisor, to the Selling AgentsPrudential Securities, the Trust, the Trading Company Trust and the Managing Owner, the reports, certificates certificates, documents and documents opinions described below addressed to them and, except as may be set forth below, dated the Initial Closing Date or the Subsequent Closing Date, as appropriateappropriate (provided that the Advisor shall not be obligated to provide an opinion of its counsel more frequently than once per annum absent good cause shown). Unless the context otherwise requires, the Initial Closing Date and each Subsequent Closing Date shall each be referred to as a "Closing Date:."
(a) a a. A report from the Trading Advisor which shall present, for the period from the date after the last day covered by the Trading Advisor's Past Performance History as set forth under "SERIES F -- Past Performance InformationFor All Of Its Clients" in the Prospectus to the latest practicable month-end before the Closing Date, figures which shall show the actual past performance of the Trading Advisor (or, if such actual past performance information is unavailable, then the estimated past performance) for such period, and which shall certify that, to the best of its the Advisor's knowledge, such figures are complete and accurate in all material respects;.
(b) a b. A certificate of the Trading Advisor in the form proposed prior to the Closing Date by counsel to Prudential Securities, the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and as are acceptable to Prudential Securities, the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to Prudential Securities, the Trust, the Managing Owner, the Trading Advisor, Advisor and their respective counsel, to the effect that:
(1i) the The representations and warranties of the Trading Advisor contained in Section 1 of this Agreement are true and correct in all material respects on the date of the certificate as though made on such date;.
(2ii) nothing Nothing has come to the Trading Advisor's attention which would cause the Trading Advisor to believe that, at any time from the time the Registration Statement initially became effective to the Closing Date, the Registration Statement, as amended from time to time, or the Prospectus, as amended or supplemented from time to time, with respect to the Trading Advisor, or the its affiliates, and controlling persons, shareholders, directors, officers or employees of any of the foregoing, or with respect to the Advisor's Trading Approach or Past Performance History, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they were made) not misleading; and.
(3iii) the Trading The Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date;.
(c) a c. A certificate of the Trading Advisor (together with such supporting documents as are set forth in the such certificate), in the form proposed prior to the Closing Date by counsel to Prudential Securities, the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to Prudential Securities, the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to Prudential Securities, the Trust, the Managing Owner, the Trading Advisor, Advisor and their respective counsel, with respect to, (1i) the continued effectiveness of the organizational documents of the Trading Advisor, (2ii) the continued effectiveness of the Trading Advisor's registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA and (3iii) the incumbency and genuine signature of the President and Secretary of the Trading Advisor;.
(d) a d. A certificate from the state of formation of the Trading Advisor, to be dated at, on or around the Closing Date, as to its formation and good standing.
e. An opinion of counsel, provided that no certificate in form and substance satisfactory to the Trust, the Managing Owner and Prudential Securities and their counsel, dated the Closing Date, to the following effect:
(i) The Advisor is a duly formed and validly existing corporation in good standing under the laws of the state of its formation shall be required at any Subsequent and, if different, the state where it conducts its primary business activity, and the Advisor has full corporate power and authority under its Certificate of Incorporation to perform its obligations under the Advisory Agreement and under this Agreement and to act as described in the Registration Statement as of its effective date and in the Prospectus as of the Closing Date.
(ii) Each of the Advisory Agreement and this Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor, and assuming the due execution and delivery of each such Agreement by the Trust, Prudential Securities, the trustee and the Managing Owner, as applicable, each such agreement constitutes the legal, valid and binding obligations of the Advisor, enforceable in accordance with their respective terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting creditors rights generally, or by applicable principles of equity, whether in an action at law or in equity, and except that the enforceability of the indemnification, exculpation, and severability provisions may be limited under applicable federal or state securities, commodities and other laws or by public policy; and the execution and delivery of such agreements and the incurrence of the obligations thereunder and the consummation of the transactions set forth in such agreements and in the Prospectus will not violate or result in a breach of the Advisor's formation documents, and, to the best of such counsel's knowledge, after due inquiry, will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
(iii) Subject to subparagraph (iv) of this Section 4.e, to the best of such counsel's knowledge, after due inquiry, the Advisor has obtained all required governmental and regulatory licenses, registrations and approvals required by law as may be necessary in order to perform its obligations under the Advisory Agreement and under this Agreement and to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date (including, without limitation, registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA), and such licenses, registrations and approvals have not, to the best of such counsel's knowledge, after due inquiry, been rescinded, revoked or otherwise removed.
(iv) Assuming that the Trust is operated as described in the Prospectus, the Advisor is not required to be licensed or registered as an investment adviser under the Advisers Act (even if it voluntarily is so registered), or to such counsel's knowledge, without independent investigation, as an investment adviser or commodity trading advisor under the laws of any state of the U.S., in order to perform its obligations under the Advisory Agreement or under this Agreement, or to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date. The foregoing opinion may be qualified by the fact that such counsel is not admitted to practice law in all jurisdictions, and by the fact that in rendering its opinion such counsel has relied solely upon an examination of the Blue Sky securities laws and related rules, regulations, and administrative determinations, if any, promulgated thereunder, of the various jurisdictions as reported in customarily relied upon standard compilations, and upon such counsel's understanding of the various conclusions expressed, formally or informally, by administrative officials or other employees of the various regulatory or other governmental agencies or authorities concerned.
(v) To such counsel's knowledge without independent investigation, except as described in the Prospectus or in a schedule delivered by counsel to Prudential Securities and the Managing Owner prior to the date hereof, there is no pending or threatened suit or proceeding, known to such counsel, before or by any court, governmental or regulatory body or arbitration panel to which the Advisor or any of the assets of the Advisor or any of its principals is subject and which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or any of its principals or which reasonably might be expected materially adversely to affect any of the assets of the Advisor or any of its principals or which reasonably might be expected to (A) impair materially the Advisor's ability to discharge its obligations to the Trust or (B) result in a matter which would require disclosure in the Registration Statement or Prospectus; and, to the best of such counsel's knowledge, neither the Advisor nor any of its principals has received any notice of an investigation by (i) the NFA regarding non- compliance with its rules or the CE Act, (ii) the CFTC regarding non-compliance with the CE Act or (iii) any exchange, regarding non-compliance with its rules, which investigation reasonably might be expected to (A) impair materially the Advisor's ability to discharge its obligations to the Trust or (B) result in a matter which would require disclosure in the Registration Statement or Prospectus.
(vi) With respect to the Advisor and its affiliates, and controlling persons, shareholders, directors, officers and employees of any of the foregoing, and with respect to the Advisor's Trading Approach, nothing has come to the attention of such counsel that leads such counsel to believe that the Registration Statement (at the time it initially became effective and at the time any post-effective amendment thereto became effective) or the Prospectus contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or which is necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they are made) not misleading, except that such counsel is not required to express any opinion or belief as to the financial statements or other financial or statistical data, past performance tables, notes, or descriptions thereto or other past performance information contained in the Registration Statement or the Prospectus. In rendering the foregoing opinions, such counsel may rely (i) as to matters of fact, on a certificate of an officer of the Advisor, unless such counsel has actual knowledge otherwise, and (ii) as to matters of law of states other than that in which they are licensed to practice law, upon the opinions of other counsel, in each case satisfactory in form and substance to counsel to the Managing Owner and Prudential Securities, and such counsel shall state that they believe the Managing Owner and Prudential Securities may rely on them.
Appears in 1 contract
Samples: Representation Agreement (World Monitor Trust Ii Series F)
Advisor's Closing Obligations. On or prior to the Closing Date (as hereinafter defined) with respect to the initial offering of the Trust with respect to the applicable Series of Units (the "Initial Closing Date"), and thereafterInterests, only if requested by the Managing Owner, on or prior to each closing date during the continuous offering of the applicable Series of Units (each a "Subsequent “Closing Date"”), the Trading Advisor shall deliver or cause to be delivered, at the expense of the Trading Advisor, to the Selling AgentsAgent, the Trust, the Trading Company Series J and the Managing Owner, the reports, certificates certificates, documents and documents opinions described below addressed to them and, except as may be set forth below, dated the Initial Closing Date (provided that the Advisor shall not be obligated to provide either a certificate of good standing or the Subsequent Closing Date, as appropriate. Unless the context otherwise requires, the Initial Closing Date and each Subsequent Closing Date shall each be referred to as a "Closing Date:"an opinion of its counsel more frequently than once per annum absent good cause shown).
(a) a A report from the Trading Advisor which shall present, for the period from the date after the last day covered by the Trading Advisor's ’s Past Performance History as set forth under "Past Performance Information" “XXXXXX CAPITAL MANAGEMENT, L.P.” in the Prospectus Memorandum to the latest practicable month-end before the Closing Date, figures which shall show the actual past performance of the Trading Advisor (or, if such actual past performance information is unavailable, then the estimated past performance) for such period, and which shall certify that, to the best of its the Advisor’s knowledge, such figures are complete and accurate in all material respects;.
(b) a A certificate of the Trading Advisor in the form proposed prior to the Closing Date by counsel to the Trust Selling Agent, the Trust, Series J and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and as are acceptable to the Trust Selling Agent, the Trust, Series J and the Managing Owner and their counsel so as to make such form mutually acceptable to the Selling Agent, the Trust, Series J, the Managing Owner, the Trading Advisor, and their respective counsel, to the effect that:
(1i) the The representations and warranties of the Trading Advisor contained in Section 1 of this Agreement above are true and correct in all material respects on the date of the certificate as though made on such date;.
(2ii) nothing Nothing has come to the Trading Advisor's ’s attention which would cause the Trading Advisor to believe that, at any time from that the time the Registration Statement initially became effective to the Closing Date, the Registration Statement, as amended from time to time, or the ProspectusMemorandum, as amended or supplemented from time to time, with respect to the Trading Advisor, or the its affiliates, and controlling persons, shareholders, directors, officers or employees of any of the foregoing, or with respect to the Advisor’s Trading Approach or Past Performance History, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectustherein, in light of the circumstances in which they were made) , not misleading; and.
(3iii) the Trading The Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date;.
(c) a A certificate of the Trading Advisor (together with such supporting documents as are set forth in the such certificate), in the form proposed prior to the Closing Date by counsel to the Trust Selling Agent, the Trust, Series J and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to the Trust Selling Agent, the Trust, Series J and the Managing Owner and their counsel so as to make such form mutually acceptable to the Selling Agent, the Trust, Series J, the Managing Owner, the Trading Advisor, Advisor and their respective counsel, with respect to, (1i) the continued effectiveness of the organizational documents of the Trading Advisor, (2ii) the continued effectiveness of the Trading Advisor's ’s registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA and (3iii) the incumbency and genuine signature of the President and Secretary of the Trading Advisor;.
(d) a A certificate from the state of formation of the Trading Advisor, to be dated at, on or around the Closing Date, as to its formation and good standing, provided that no certificate of formation shall be required at any Subsequent Closing Date.
Appears in 1 contract
Samples: Advisory Agreement (World Monitor Trust III - Series J)
Advisor's Closing Obligations. On or prior to the Closing Date (as hereinafter defined) with respect to the initial offering of the Trust with respect to the applicable Series of Units B Interests (the "Initial Closing Date"), and thereafter, only if requested by the Managing Ownerrequested, on or prior to each closing date during the continuous offering of the applicable Series of Units B Interests (each a "Subsequent Closing Date"), the Trading Advisor shall deliver or cause to be delivered, at the expense of the Trading Advisor, to the Selling AgentsPrudential Securities, the Trust, the Trading Company Trust and the Managing Owner, the reports, certificates certificates, documents and documents opinions described below addressed to them and, except as may be set forth below, dated the Initial Closing Date or the Subsequent Closing Date, as appropriateappropriate (provided that the Advisor shall not be obligated to provide an opinion of its counsel more frequently than once per annum absent good cause shown). Unless the context otherwise requires, the Initial Closing Date and each Subsequent Closing Date shall each be referred to as a "Closing Date:",
(a) a a. A report from the Trading Advisor which shall present, for the period from the date after the last day covered by the Trading Advisor's Past Performance History as set forth under "Past Performance InformationInformation - Series B " in the Prospectus to the latest practicable month-end before the Closing Date, figures which shall show the actual past performance of the Trading Advisor (or, if such actual past performance information is unavailable, then the estimated past performance) for such period, and which shall certify that, to the best of its knowledge, such figures are complete and accurate in all material respects;.
(b) a b. A certificate of the Trading Advisor in the form proposed prior to the Closing Date by counsel to Prudential Securities, the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to Prudential Securities, the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to Prudential Securities, the Trust, the Managing Owner, the Trading Advisor, and their respective counsel, to the effect that:
(1i) the The representations and warranties of the Trading Advisor contained in this Agreement Section 1 above are true and correct in all material respects on the date of the certificate as though made on such date;.
(2ii) nothing Nothing has come to the Trading Advisor's attention which would cause the Trading Advisor to believe that, at any time from the time the Registration Statement initially became effective to the Closing Date, the Registration Statement, as amended from time to time, or the Prospectus, as amended or supplemented from time to time, with respect to the Trading Advisor, or the affiliates, controlling persons, shareholders, directors, officers or employees of any of the foregoing, or with respect to the Advisor's Trading Approach or Past Performance History, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they were made) not misleading; and.
(3iii) the Trading The Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date;.
(c) a c. A certificate of the Trading Advisor (together with such supporting documents as are set forth in the certificate), in the form proposed prior to the Closing Date by counsel to Prudential Securities, the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to Prudential Securities, the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to Prudential Securities, the Trust, the Managing Owner, the Trading Advisor, and their respective counsel, with respect to, (1i) the continued effectiveness of the organizational documents of the Trading Advisor, (2ii) the continued effectiveness of the Trading Advisor's registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA and (3iii) the incumbency and genuine signature of the President and Secretary of the Trading Advisor;.
(d) a d. A certificate from the state of formation of the Trading Advisor, to be dated at, on or around the Closing Date, as to its formation and good standing.
e. An opinion of counsel, provided that no certificate in form and substance satisfactory to the Trust, the Managing Owner and Prudential Securities and their counsel, dated the Closing Date, to the following effect:
(i) The Advisor is a duly formed and validly existing corporation in good standing under the laws of the state of its formation shall be required at any Subsequent and, if different, the state where it conducts its primary business activity. The Advisor has full corporate power and authority under its Certificate of Incorporation to perform its obligations under the Advisory Agreement and this Agreement, and to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date.
(ii) Each of the Advisory Agreement and this Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor, and assuming the due execution and delivery of each such Agreement by the Trust and the Managing Owner, each such agreement constitutes the legal, valid and binding obligations of the Advisor, enforceable in accordance with their respective terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting creditors rights generally, or by applicable principles of equity, whether in an action at law or in equity, and except that the enforceability of the indemnification provisions may be limited under applicable federal or state securities, commodities and other laws or by public policy; and the execution and delivery of such agreements and the incurrence of the obligations thereunder and the consummation of the transactions set forth in such agreements and in the Prospectus will not violate or result in a breach of the 11 Advisor's formation documents, and, to the best of such counsel's knowledge, after due inquiry, will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
(iii) Subject to subparagraph (iv) of this Section 4e, to the best of such counsel's knowledge, after due inquiry, the Advisor has obtained all required governmental and regulatory licenses, registrations and approvals required by law as may be necessary in order to perform its obligations under the Advisory Agreement and this Agreement and to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date (including, without limitation, registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA) and such licenses, registrations and approvals have not, to the best of such counsel's knowledge, after due inquiry, been rescinded, revoked or otherwise removed.
(iv) Assuming that the Trust is operated as described in the Prospectus, the Advisor is not required to be licensed or registered as an investment adviser under the Advisers Act (even if it voluntarily is so registered), or to such counsel's knowledge, without independent investigation, as an investment adviser or commodity trading advisor under the Blue Sky securities laws of any state of the United States, in order to perform its obligations under the Advisory Agreement or this Agreement, or to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date. The foregoing opinion may be qualified by the fact that such counsel is not admitted to practice law in all jurisdictions, and that in rendering its opinion such counsel has relied solely upon an examination of the Blue Sky securities laws and related rules and regulations, if any, promulgated thereunder, of the various jurisdictions as reported in customarily relied upon standard compilations.
(v) To such counsel's knowledge without independent investigation, except as described in the Prospectus, or in a schedule delivered by counsel to Prudential Securities and the Managing Owner prior to the date hereof, there is no pending, or threatened, suit or proceeding, known to such counsel, before or by any court, governmental or regulatory body or arbitration panel to which the Advisor or any of the assets of the Advisor or any of its principals is subject and which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or any of its principals or reasonably might be expected materially adversely to affect any of the assets of the Advisor or any of its principals or which reasonably might be expected to (A) impair materially the Advisor's ability to discharge its obligations to the Trust or (B) result in a matter which would require disclosure in the Registration Statement or Prospectus; and, to the best of such counsel's knowledge, neither the Advisor nor any of its principals has received any notice of an investigation by (i) the NFA regarding non- compliance with its rules or the CE Act, (ii) the CFTC regarding non-compliance with the CE Act or (iii) any exchange, regarding non-compliance with its rules, which investigation reasonably might be expected to (A) impair materially the Advisor's ability to discharge its obligations to the Trust or (B) result in a matter which would require disclosure in the Registration Statement or Prospectus.
(vi) With respect to the Advisor and the affiliates, controlling persons, shareholders, directors, officers and employees of any of the foregoing, and with respect to the Advisor's Trading Approach, nothing has come to the attention of such counsel that leads such counsel to believe that the Registration Statement (at the time it initially became effective and at the time any post-effective amendment thereto became effective) or the Prospectus contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or which is necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they are made) not misleading, except that such counsel is not required to express any opinion or belief as to the financial statements or other financial or statistical data, past performance tables and notes thereto or other past performance information contained in the Registration Statement or the Prospectus. In rendering the foregoing opinions, such counsel may rely, as to matters of law of states other than that in which they are licensed to practice law, upon the opinions of other counsel, in each case satisfactory in form and substance to counsel to the Managing Owner and Prudential Securities, and such counsel shall state that they believe the Managing Owner and Prudential Securities may rely on them.
Appears in 1 contract
Samples: Representation Agreement (World Monitor Trust Series B)
Advisor's Closing Obligations. On or prior to the Closing Date (as hereinafter defined) with respect to the initial offering of the Trust with respect to the applicable Series of Units E Interests (the "Initial Closing Date"), and thereafter, only if requested by the Managing Ownerrequested, on or prior to each closing date during the continuous offering of the applicable 9 Series of Units E Interests (each a "Subsequent Closing Date"), the Trading Advisor shall deliver or cause to be delivered, at the expense of the Trading Advisor, to the Selling AgentsPrudential Securities, the Trust, the Trading Company Trust and the Managing Owner, the reports, certificates certificates, documents and documents opinions described below addressed to them and, except as may be set forth below, dated the Initial Closing Date or the Subsequent Closing Date, as appropriateappropriate (provided that the Advisor shall not be obligated to provide an opinion of its counsel more frequently than once per annum absent good cause shown). Unless the context otherwise requires, the Initial Closing Date and each Subsequent Closing Date shall each be referred to as a "Closing Date:."
(a) a a. A report from the Trading Advisor which shall present, for the period from the date after the last day covered by the Trading Advisor's Past Performance History as set forth under "SERIES E -- Past Performance InformationFor All Of Its Clients" in the Prospectus to the latest practicable month-end before the Closing Date, figures which shall show the actual past performance of the Trading Advisor (or, if such actual past performance information is unavailable, then the estimated past performance) for such period, and which shall certify that, to the best of its the Advisor's knowledge, such figures are complete and accurate in all material respects;.
(b) a b. A certificate of the Trading Advisor in the form proposed prior to the Closing Date by counsel to Prudential Securities, the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and as are acceptable to Prudential Securities, the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to Prudential Securities, the Trust, the Managing Owner, the Trading Advisor, Advisor and their respective counsel, to the effect that:
(1i) the The representations and warranties of the Trading Advisor contained in Section 1 of this Agreement are true and correct in all material respects on the date of the certificate as though made on such date;.
(2ii) nothing Nothing has come to the Trading Advisor's attention which would cause the Trading Advisor to believe that, at any time from the time the Registration Statement initially became effective to the Closing Date, the Registration Statement, as amended from time to time, or the Prospectus, as amended or supplemented from time to time, with respect to the Trading Advisor, or the its affiliates, and controlling persons, shareholders, directors, officers or employees of any of the foregoing, or with respect to the Advisor's Trading Approach or Past Performance History, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they were made) not misleading; and.
(3iii) the Trading The Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date;.
(c) a c. A certificate of the Trading Advisor (together with such supporting documents as are set forth in the such certificate), in the form proposed prior to the Closing Date by counsel to Prudential Securities, the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to Prudential Securities, the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to Prudential Securities, the Trust, the Managing Owner, the Trading Advisor, Advisor and their respective counsel, with respect to, (1i) the continued effectiveness of the organizational documents of the Trading Advisor, (2ii) the continued effectiveness of the Trading Advisor's registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA and (3iii) the incumbency and genuine signature of the President and Secretary of the Trading Advisor;.
(d) a d. A certificate from the state of formation of the Trading Advisor, to be dated at, on or around the Closing Date, as to its formation and good standing.
e. An opinion of counsel, provided that no certificate in form and substance satisfactory to the Trust, the Managing Owner and Prudential Securities and their counsel, dated the Closing Date, to the following effect:
(i) The Advisor is a duly formed and validly existing limited partnership in good standing under the laws of the state of its formation shall be required at any Subsequent and, if different, the state where it conducts its primary business activity, and the Advisor has full corporate power and authority under its organizing documents to perform its obligations under the Advisory Agreement and under this Agreement and to act as described in the Registration Statement as of its effective date and in the Prospectus as of the Closing Date.
(ii) Each of the Advisory Agreement and this Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor, and assuming the due execution and delivery of each such Agreement by the Trust, Prudential Securities, the Trustee and the Managing Owner, as applicable, each such agreement constitutes the legal, valid and binding obligations of the Advisor, enforceable in accordance with their respective terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting creditors rights generally, or by applicable principles of equity, whether in an action at law or in equity, and except that the enforceability of the indemnification, exculpation, and severability provisions may be limited under applicable federal or state securities, commodities and other laws or by public policy; and the execution and delivery of such agreements and the incurrence of the obligations thereunder and the consummation of the transactions set forth in such agreements and in the Prospectus will not violate or result in a breach of the Advisor's formation documents, and, to the best of such counsel's knowledge, after due inquiry, will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
(iii) Subject to subparagraph (iv) of this Section 4.e, to the best of such counsel's knowledge, after due inquiry, the Advisor has obtained all required governmental and regulatory licenses, registrations and approvals required by law as may be necessary in order to perform its obligations under the Advisory Agreement and under this Agreement and to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date (including, without limitation, registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA), and such licenses, registrations and approvals have not, to the best of such counsel's knowledge, after due inquiry, been rescinded, revoked or otherwise removed.
(iv) Assuming that the Trust is operated as described in the Prospectus, the Advisor is not required to be licensed or registered as an investment adviser under the Advisers Act (even if it voluntarily is so registered), or to such counsel's knowledge, without independent investigation, as an investment adviser or commodity trading advisor under the laws of any state of the U.S., in order to perform its obligations under the Advisory Agreement or under this Agreement, or to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date. The foregoing opinion may be qualified by the fact that such counsel is not admitted to practice law in all jurisdictions, and by the fact that in rendering its opinion such counsel has relied solely upon an examination of the Blue Sky securities laws and related rules, regulations, and administrative determinations, if any, promulgated thereunder, of the various jurisdictions as reported in customarily relied upon standard compilations, and upon such counsel's understanding of the various conclusions expressed, formally or informally, by administrative officials or other employees of the various regulatory or other governmental agencies or authorities concerned.
(v) To such counsel's knowledge without independent investigation, except as described in the Prospectus or in a schedule delivered by counsel to Prudential Securities and the Managing Owner prior to the date hereof, there is no pending or threatened suit or proceeding, known to such counsel, before or by any court, governmental or regulatory body or arbitration panel to which the Advisor or any of the assets of the Advisor or any of its principals is subject and which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or any of its principals or which reasonably might be expected materially adversely to affect any of the assets of the Advisor or any of its principals or which reasonably might be expected to (A) impair materially the Advisor's ability to discharge its obligations to the Trust or (B) result in a matter which would require disclosure in the Registration Statement or Prospectus; and, to the best of such counsel's knowledge, neither the Advisor nor any of its principals has received any notice of an investigation by (i) the NFA regarding non- compliance with its rules or the CE Act, (ii) the CFTC regarding non-compliance with the CE Act or (iii) any exchange, regarding non-compliance with its rules, which investigation reasonably might be expected to (A) impair materially the Advisor's ability to discharge its obligations to the Trust or (B) result in a matter which would require disclosure in the Registration Statement or Prospectus.
(vi) With respect to the Advisor and its affiliates, and controlling persons, shareholders, directors, officers and employees of any of the foregoing, and with respect to the Advisor's Trading Approach, nothing has come to the attention of such counsel that leads such counsel to believe that the Registration Statement (at the time it initially became effective and at the time any post-effective amendment thereto became effective) or the Prospectus contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or which is necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they are made) not misleading, except that such counsel is not required to express any opinion or belief as to the financial statements or other financial or statistical data, past performance tables, notes, or descriptions thereto or other past performance information contained in the Registration Statement or the Prospectus. In rendering the foregoing opinions, such counsel may rely (i) as to matters of fact, on a certificate of an officer of the Advisor, unless such counsel has actual knowledge otherwise, and (ii) as to matters of law of states other than that in which they are licensed to practice law, upon the opinions of other counsel, in each case satisfactory in form and substance to counsel to the Managing Owner and Prudential Securities, and such counsel shall state that they believe the Managing Owner and Prudential Securities may rely on them.
Appears in 1 contract
Samples: Representation Agreement (World Monitor Trust Ii Series E)
Advisor's Closing Obligations. On or prior to the Closing Date (as hereinafter defined) with respect to the initial offering of the Trust with respect to the applicable Series of Units (the "Initial Closing Date"), and thereafterInterests, only if requested by the Managing Owner, on or prior to each closing date during the continuous offering of the applicable Series of Units (each each, a "Subsequent “Closing Date"”), the Trading Advisor shall deliver or cause to be delivered, at the expense of the Trading Advisor, to the Selling AgentsAgent, the Trust, the Trading Company Series J and the Managing Owner, the reports, certificates certificates, documents and documents opinions described below addressed to them and, except as may be set forth below, dated the Initial Closing Date (provided that the Advisor shall not be obligated to provide either a certificate of good standing or the Subsequent Closing Date, as appropriate. Unless the context otherwise requires, the Initial Closing Date and each Subsequent Closing Date shall each be referred to as a "Closing Date:"an opinion of its counsel more frequently than once per annum absent good cause shown).
(a) a A report from the Trading Advisor which shall present, for the period from the date after the last day covered by the Trading Advisor's ’s Past Performance History as set forth under "Past Performance Information" “ORTUS CAPITAL MANAGEMENT LIMITED.” in the Prospectus Memorandum to the latest practicable month-end before the Closing Date, figures which shall show the actual past performance of the Trading Advisor (or, if such actual past performance information is unavailable, then the estimated past performance) for such period, and which shall certify that, to the best of its the Advisor’s knowledge, such figures are complete and accurate in all material respects;.
(b) a A certificate of the Trading Advisor in the form proposed prior to the Closing Date by counsel to the Trust Selling Agent, the Trust, Series J and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and as are acceptable to the Trust Selling Agent, the Trust, Series J and the Managing Owner and their counsel so as to make such form mutually acceptable to the Selling Agent, the Trust, Series J, the Managing Owner, the Trading Advisor, and their respective counsel, to the effect that:
(1i) the The representations and warranties of the Trading Advisor contained in Section 1 of this Agreement above are true and correct in all material respects on the date of the certificate as though made on such date;.
(2ii) nothing Nothing has come to the Trading Advisor's ’s attention which would cause the Trading Advisor to believe that, at any time from that the time the Registration Statement initially became effective to the Closing Date, the Registration Statement, as amended from time to time, or the ProspectusMemorandum, as amended or supplemented from time to time, with respect to the Trading Advisor, or the its affiliates, and controlling persons, shareholders, directors, officers or employees of any of the foregoing, or with respect to the Advisor’s Trading Approach or Past Performance History, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectustherein, in light of the circumstances in which they were made) , not misleading; and.
(3iii) the Trading The Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date;.
(c) a A certificate of the Trading Advisor (together with such supporting documents as are set forth in the such certificate), in the form proposed prior to the Closing Date by counsel to the Trust Selling Agent, the Trust, Series J and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to the Trust Selling Agent, the Trust, Series J and the Managing Owner and their counsel so as to make such form mutually acceptable to the Selling Agent, the Trust, Series J, the Managing Owner, the Trading Advisor, Advisor and their respective counsel, with respect to, (1i) the continued effectiveness of the organizational documents of the Trading Advisor, Advisor (2) the continued effectiveness of the Trading Advisor's registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA and (3ii) the incumbency and genuine signature of the President and Secretary of the Trading Advisor;.
(d) a A certificate from the state of formation of the Trading Advisor, to be dated at, on or around the Closing Date, as to its formation and good standing.
(e) An opinion of counsel, provided that no certificate in form and substance satisfactory to the Trust, Series J, the Managing Owner and the Selling Agent and their counsel, dated the Closing Date, to the following effect:
(i) The Advisor is a duly formed and validly existing corporation in good standing under the laws of the state of its formation shall be required at any Subsequent and, if different, the state where it conducts its primary business activity and the Advisor has full corporate power and authority under its Certificate of Incorporation to perform its obligations under the Advisory Agreement and under this Agreement, and to act as described in the Memorandum as of the Closing Date.
(ii) Each of the Advisory Agreement and this Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor, and assuming the due execution and delivery of each such Agreement by the Trust, the Selling Agent, Series J, the Trustee and the Managing Owner, as applicable, each such agreement constitutes the legal, valid and binding obligations of the Advisor, enforceable in accordance with their respective terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting creditors rights generally, or by applicable principles of equity, whether in an action at law or in equity, and except that the enforceability of the indemnification, exculpation and severability provisions may be limited under applicable federal or state securities, commodities and other laws or by public policy; and the execution and delivery of such agreements and the incurrence of the obligations thereunder and the consummation of the transactions set forth in such agreements and in the Memorandum will not violate or result in a breach of the Advisor’s formation documents, and, to the best of such counsel’s knowledge, after due inquiry, will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
(iii) Subject to subparagraph (iv) of this Section 4(e), to the best of such counsel’s knowledge, after due inquiry, the Advisor has obtained all required governmental and regulatory licenses, registrations and approvals required by law as may be necessary in order to perform its obligations under the Advisory Agreement and under this Agreement and to act as described in the Memorandum as of the Closing Date and such licenses, registrations and approvals have not, to the best of such counsel’s knowledge, after due inquiry, been rescinded, revoked or otherwise removed.
(iv) Assuming that the Trust is operated as described in the Memorandum, the Advisor is not required to be licensed or registered as an investment adviser under the Advisers Act (even if it voluntarily is so registered), or to such counsel’s knowledge, without independent investigation, as an investment adviser or commodity trading advisor under the laws of any state of the U.S., in order to perform its obligations under the Advisory Agreement or under this Agreement, or to act as described in the Memorandum as of the Closing Date. The foregoing opinion may be qualified by the fact that such counsel is not admitted to practice law in all jurisdictions, and by the fact that in rendering its opinion such counsel has relied solely upon an examination of the Blue Sky securities laws and related rules, regulations, and administrative determinations, if any, promulgated thereunder, of the various jurisdictions as reported in customarily relied upon standard compilations, and upon such counsel’s understanding of the various conclusions expressed, formally or informally, by administrative officials or other employees of the various regulatory or other governmental agencies or authorities concerned.
(v) To such counsel’s knowledge without independent investigation, except as described in the Memorandum, or in a schedule delivered by counsel to the Selling Agent, Series J and the Managing Owner prior to the date hereof, there is no pending, or threatened, suit or proceeding, known to such counsel, before or by any court, governmental or regulatory body or arbitration panel to which the Advisor or any of the assets of the Advisor or any of its principals is subject and which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or any of its principals or which reasonably might be expected materially adversely to affect any of the assets of the Advisor or any of its principals or which reasonably might be expected to (A) impair materially the Advisor’s ability to discharge its obligations to Series J or (B) result in a matter which would require disclosure in the Memorandum; and, to the best of such counsel’s knowledge, neither the Advisor nor any of its principals has received any notice of an investigation by any exchange, regarding non-compliance with its rules, which investigation reasonably might be expected to (A) impair materially the Advisor’s ability to discharge its obligations to Series J or (B) result in a matter which would require disclosure in the Memorandum.
(vi) With respect to the Advisor and its affiliates and controlling persons, shareholders, directors, officers and employees of any of the foregoing, and with respect to the Advisor’s Trading Approach, nothing has come to the attention of such counsel that leads such counsel to believe that the Memorandum contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or which is necessary to make the statements therein, in light of the circumstances in which they are made, not misleading, except that such counsel is not required to express any opinion or belief as to the financial statements or other financial or statistical data, past performance tables, notes or descriptions thereto or other past performance information contained in the Memorandum. In rendering the foregoing opinions, such counsel may rely (i) as to matters of fact, on a certificate of an officer of the Advisor, unless such counsel has actual knowledge otherwise, and (ii) as to matters of law of states other than that in which they are licensed to practice law, upon the opinions of other counsel, in each case satisfactory in form and substance to counsel to the Managing Owner, Series J and the Selling Agent, and such counsel shall state that they believe the Managing Owner, Series J and the Selling Agent may rely on them.
Appears in 1 contract
Samples: Advisory Agreement (World Monitor Trust III - Series J)
Advisor's Closing Obligations. On or prior to the Closing Date (as hereinafter defined) with respect to the initial offering of the Trust with respect to the applicable Series of Units Interests (the "“Initial Closing Date"”), and thereafter, only if requested by the Managing Ownerrequested, on or prior to each closing date during the continuous offering of the applicable Series of Units Interests (each a "“Subsequent Closing Date"”), the Trading Advisor shall deliver or cause to be delivered, at the expense of the Trading Advisor, to the Selling AgentsAgent, the Trust, the Trading Company Series J and the Managing Owner, the reports, certificates certificates, documents and documents opinions described below addressed to them and, except as may be set forth below, dated the Initial Closing Date or the Subsequent Closing Date, as appropriateappropriate (provided that the Advisor shall not be obligated to provide either a certificate of good standing or an opinion of its counsel more frequently than once per annum absent good cause shown). Unless the context otherwise requires, the Initial Closing Date and each Subsequent Closing Date shall each be referred to as a "“Closing Date:"”,
(a) a A report from the Trading Advisor which shall present, for the period from the date after the last day covered by the Trading Advisor's ’s Past Performance History as set forth under "Past Performance Information" “ORTUS CAPITAL MANAGEMENT LIMITED.” in the Prospectus to the latest practicable month-end before the Closing Date, figures which shall show the actual past performance of the Trading Advisor (or, if such actual past performance information is unavailable, then the estimated past performance) for such period, and which shall certify that, to the best of its the Advisor’s knowledge, such figures are complete and accurate in all material respects;.
(b) a A certificate of the Trading Advisor in the form proposed prior to the Closing Date by counsel to the Trust Selling Agent, the Trust, Series J and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and as are acceptable to the Trust Selling Agent, the Trust, Series J and the Managing Owner and their counsel so as to make such form mutually acceptable to the Selling Agent, the Trust, Series J, the Managing Owner, the Trading Advisor, and their respective counsel, to the effect that:
(1i) the The representations and warranties of the Trading Advisor contained in Section 1 of this Agreement above are true and correct in all material respects on the date of the certificate as though made on such date;.
(2ii) nothing Nothing has come to the Trading Advisor's ’s attention which would cause the Trading Advisor to believe that, at any time from the time the Registration Statement initially became effective to the Closing Date, the Registration Statement, as amended from time to time, or the Prospectus, as amended or supplemented from time to time, with respect to the Trading Advisor, or the its affiliates, and controlling persons, shareholders, directors, officers or employees of any of the foregoing, or with respect to the Advisor’s Trading Approach or Past Performance History, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they were made) not misleading; and.
(3iii) the Trading The Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date;.
(c) a A certificate of the Trading Advisor (together with such supporting documents as are set forth in the such certificate), in the form proposed prior to the Closing Date by counsel to the Trust Selling Agent, the Trust, Series J and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to the Trust Selling Agent, the Trust, Series J and the Managing Owner and their counsel so as to make such form mutually acceptable to the Selling Agent, the Trust, Series J, the Managing Owner, the Trading Advisor, Advisor and their respective counsel, with respect to, (1i) the continued effectiveness of the organizational documents of the Trading Advisor, Advisor (2) the continued effectiveness of the Trading Advisor's registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA and (3ii) the incumbency and genuine signature of the President and Secretary of the Trading Advisor;.
(d) a A certificate from the state of formation of the Trading Advisor, to be dated at, on or around the Closing Date, as to its formation and good standing.
(e) An opinion of counsel, provided that no certificate in form and substance satisfactory to the Trust, Series J, the Managing Owner and the Selling Agent and their counsel, dated the Closing Date, to the following effect:
(i) The Advisor is a duly formed and validly existing corporation in good standing under the laws of the state of its formation shall be required at any Subsequent and, if different, the state where it conducts its primary business activity and the Advisor has full corporate power and authority under its Certificate of Incorporation to perform its obligations under the Advisory Agreement and under this Agreement, and to act as described in the Registration Statement as of its effective date and in the Prospectus as of the Closing Date.
(ii) Each of the Advisory Agreement and this Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor, and assuming the due execution and delivery of each such Agreement by the Trust, the Selling Agent, Series J, the Trustee and the Managing Owner, as applicable, each such agreement constitutes the legal, valid and binding obligations of the Advisor, enforceable in accordance with their respective terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting creditors rights generally, or by applicable principles of equity, whether in an action at law or in equity, and except that the enforceability of the indemnification, exculpation and severability provisions may be limited under applicable federal or state securities, commodities and other laws or by public policy; and the execution and delivery of such agreements and the incurrence of the obligations thereunder and the consummation of the transactions set forth in such agreements and in the Prospectus will not violate or result in a breach of the Advisor’s formation documents, and, to the best of such counsel’s knowledge, after due inquiry, will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
(iii) Subject to subparagraph (iv) of this Section 4(e), to the best of such counsel’s knowledge, after due inquiry, the Advisor has obtained all required governmental and regulatory licenses, registrations and approvals required by law as may be necessary in order to perform its obligations under the Advisory Agreement and under this Agreement and to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date and such licenses, registrations and approvals have not, to the best of such counsel’s knowledge, after due inquiry, been rescinded, revoked or otherwise removed.
(iv) Assuming that the Trust is operated as described in the Prospectus, the Advisor is not required to be licensed or registered as an investment adviser under the Advisers Act (even if it voluntarily is so registered), or to such counsel’s knowledge, without independent investigation, as an investment adviser or commodity trading advisor under the laws of any state of the U.S., in order to perform its obligations under the Advisory Agreement or under this Agreement, or to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date. The foregoing opinion may be qualified by the fact that such counsel is not admitted to practice law in all jurisdictions, and by the fact that in rendering its opinion such counsel has relied solely upon an examination of the Blue Sky securities laws and related rules, regulations, and administrative determinations, if any, promulgated thereunder, of the various jurisdictions as reported in customarily relied upon standard compilations, and upon such counsel’s understanding of the various conclusions expressed, formally or informally, by administrative officials or other employees of the various regulatory or other governmental agencies or authorities concerned.
(v) To such counsel’s knowledge without independent investigation, except as described in the Prospectus, or in a schedule delivered by counsel to the Selling Agent, Series J and the Managing Owner prior to the date hereof, there is no pending, or threatened, suit or proceeding, known to such counsel, before or by any court, governmental or regulatory body or arbitration panel to which the Advisor or any of the assets of the Advisor or any of its principals is subject and which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or any of its principals or which reasonably might be expected materially adversely to affect any of the assets of the Advisor or any of its principals or which reasonably might be expected to (A) impair materially the Advisor’s ability to discharge its obligations to Series J or (B) result in a matter which would require disclosure in the Registration Statement or Prospectus; and, to the best of such counsel’s knowledge, neither the Advisor nor any of its principals has received any notice of an investigation by any exchange, regarding non-compliance with its rules, which investigation reasonably might be expected to (A) impair materially the Advisor’s ability to discharge its obligations to Series J or (B) result in a matter which would require disclosure in the Registration Statement or Prospectus.
(vi) With respect to the Advisor and its affiliates and controlling persons, shareholders, directors, officers and employees of any of the foregoing, and with respect to the Advisor’s Trading Approach, nothing has come to the attention of such counsel that leads such counsel to believe that the Registration Statement (at the time it initially became effective and at the time any post-effective amendment thereto became effective) or the Prospectus contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or which is necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they are made) not misleading, except that such counsel is not required to express any opinion or belief as to the financial statements or other financial or statistical data, past performance tables, notes or descriptions thereto or other past performance information contained in the Registration Statement or in the Prospectus. In rendering the foregoing opinions, such counsel may rely (i) as to matters of fact, on a certificate of an officer of the Advisor, unless such counsel has actual knowledge otherwise, and (ii) as to matters of law of states other than that in which they are licensed to practice law, upon the opinions of other counsel, in each case satisfactory in form and substance to counsel to the Managing Owner, Series J and the Selling Agent, and such counsel shall state that they believe the Managing Owner, Series J and the Selling Agent may rely on them.
Appears in 1 contract
Samples: Advisory Agreement (WMT III Series G/J Trading Vehicle LLC)
Advisor's Closing Obligations. On or prior to the Closing Date (as hereinafter defined) with respect to the initial offering of the Trust with respect to the applicable Series of Units H Interests and Series J Interests (the "Initial Closing Date"), and thereafter, only if requested by the Managing Ownerrequested, on or prior to each closing date during the continuous offering of the applicable Series of Units H Interests and Series J Interests (each a "Subsequent Closing Date"), the Trading Advisor shall deliver or cause to be delivered, at the expense of the Trading Advisor, to the Selling Agents, the TrustAgent, the Trading Company and the Managing OwnerVehicle, the reports, certificates and documents described below addressed to them and, except as may be set forth below, dated the Initial Closing Date or the Subsequent Closing Date, as appropriate. Unless the context otherwise requires, the Initial Closing Date and each Subsequent Closing Date shall each be referred to as a "Closing Date:"
(a) a report from the Trading Advisor which shall present, for the period from the date after the last day covered by the Trading Advisor's Past Performance History as set forth under "Past Performance Information" in the Prospectus to the latest practicable month-end before the Closing Date, figures which shall show the actual past performance of the Trading Advisor (or, if such actual past performance information is unavailable, then the estimated past performance) for such period, and which shall certify that, to the best of its knowledge, such figures are complete and accurate in all material respects;
(b) a certificate of the Trading Advisor in the form proposed prior to the Closing Date by counsel to the Trust and the Managing Owner, with such changes a certificate of the Advisor in such a form as are proposed by the Trading Advisor or its counsel and are reasonably acceptable to the Trust and Selling Agent, the Trading Vehicle, the Managing Owner and their counsel so as to make such form mutually acceptable to the Trust, the Managing Owner, the Trading Advisor, and their respective counsel, to the effect that:
(1a) the The representations and warranties of the Trading Advisor contained in Section 1 of this Agreement are true and correct in all material respects on the date of the certificate as though made on such date;.
(2b) nothing Nothing has come to the Trading Advisor's attention which would cause the Trading Advisor to believe that, at any time from the time the Registration Statement initially became effective to the Closing Date, the Registration Statement, as amended from time to time, or the Prospectus, as amended or supplemented from time to time, with respect to the Trading Advisor, or the its affiliates, and controlling persons, shareholders, directors, officers or employees of any of the foregoing, or with respect to the Advisor's Trading Approach or Past Performance Historypast performance history, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they were made) not misleading; and.
(3c) the Trading The Advisor has performed all covenants and agreements herein contained to be performed on its part at or prior to the Closing Date;
(c) a certificate of the Trading Advisor (together with such supporting documents as are set forth in the certificate), in the form proposed prior to the Closing Date by counsel to the Trust and the Managing Owner, with such changes in such form as are proposed by the Trading Advisor or its counsel and are acceptable to the Trust and the Managing Owner and their counsel so as to make such form mutually acceptable to the Trust, the Managing Owner, the Trading Advisor, and their respective counsel, with respect to, (1) the continued effectiveness of the organizational documents of the Trading Advisor, (2) the continued effectiveness of the Trading Advisor's registration as a commodity trading advisor under the CE Act and membership as a commodity trading advisor with the NFA and (3) the incumbency and genuine signature of the President and Secretary of the Trading Advisor;
(d) a certificate from the state of formation of the Trading Advisor, to be dated at, on or around the Closing Date, as to its formation and good standing, provided that no certificate of formation shall be required at any Subsequent Closing Date.
Appears in 1 contract
