Assets Under Management; Clients. (a) Each Client to which a MLIM Business Entity provides investment management, advisory or sub-advisory services that is (i) an employee benefit plan, as defined in Section 3(3) of ERISA that is subject to Title I of ERISA, (ii) a Person acting on behalf of such a plan or (iii) any entity whose assets include the assets of such a plan, within the meaning of ERISA and applicable regulations (hereinafter referred to as an “ERISA Client”) has, since January 1, 2003, been managed by a MLIM Business Entity such that the exercise of such management or provision of any services is in compliance in all material respects with the applicable requirements of ERISA. Each such MLIM Business Entity, to the extent it is regulated under the Advisers Act, satisfies the requirements of Prohibited Transaction Class Exemption 84-14 for a “qualified professional asset manager” (as such term is used in Prohibited Transaction Class Exemption 84-14).
(i) All performance information provided, presented or made available by the MLIM Business Entities to any Client or potential Client has complied in all material respects with Applicable Law; (ii) MLIM Parent and each of its Controlled Affiliates, as applicable, maintains all documentation necessary to form the basis for, demonstrate or recreate the calculation of the performance or rate of return of all accounts that are included in a composite (current and historical performance results) as required by Applicable Law; and (iii) any investment performance earned by any Person at a firm other than the MLIM Business Entities and presented by a MLIM Business Entity as its investment performance has complied in all material respects with Applicable Law. Table of Contents
(c) Since January 1, 2003, each Client account has been operated in all material respects in compliance with the terms of the relevant Investment Advisory Arrangement.
(d) Since January 1, 2003, there has existed no material unremedied “out of balance” condition, pricing error or similar condition with respect to any Client account maintained by a MLIM Business Entity or any MLIM Fund.
(e) The MLIM Business Entities that are registered investment advisers have adopted and implemented procedures or practices for the allocation of securities purchased for its Clients that comply in all material respects with Applicable Laws, including procedures or practices relating to the allocation between MLIM Public Funds and MLIM Private Funds or other accounts in which a MLIM Bus...
Assets Under Management; Clients. (a) Each Client to which Virtus or any Subsidiary provides investment management, advisory or sub-advisory services that is (i) an employee benefit plan, as defined in Section 3(3) of ERISA that is subject to Title I of ERISA, (ii) a Person acting on behalf of such a plan or (iii) any entity whose assets include the assets of such a plan, within the meaning of ERISA and applicable regulations (hereinafter referred to as an “ERISA Client”) has, since January 1, 2005, been managed by Virtus or any of its Affiliates such that the exercise of such management or provision of any services is in compliance in all material respects with the applicable requirements of ERISA. Each of Virtus and its Affiliates managing such Person, to the extent it is regulated under the Investment Advisers Act, satisfies the requirements of Prohibited Transaction Class Exemption 84-14 for a “qualified professional asset manager” (as such term is used in Prohibited Transaction Class Exemption 84-14).
(b) Each of the Company and any Subsidiary that provides investment advisory services has at all times rendered investment advisory services to Clients with whom such entity is or was a party to an investment advisory agreement or similar arrangement in substantial compliance with the terms of such investment advisory agreements, written instructions from such Clients, the organizational documents of such Clients, if applicable, any prospectuses or other offering materials, board of director or trustee directives and Applicable Law.
Assets Under Management; Clients. (a) Section 3.8(a) of the Company Group Disclosure Schedule sets forth: (i) a true, complete and correct list as of the Base Date of the name of each Client, together with a notation as to whether such Client is a Separate Account Client, a Public Fund or a Private Fund and whether the Company Group acts in a sub-advisory capacity with respect to such Client; (ii) for each such Client: (A) the Adjusted Assets Under Management as of 4:00 p.m. New York time on the Base Date; (B) the investment advisory, investment management, sub-advisory or similar fee rate (determined on the basis set forth in the definition of the term “Revenue Run-Rate” set forth in Annex A) payable to the applicable member of the Company Group under the applicable Advisory Agreement as of the Base Date; and (C) the revenue run-rate as of the Base Date (determined as the product of the amount determined pursuant to the foregoing clause (A) and the rate determined pursuant to the foregoing clause (ii)(B)); (iii) a true, complete and correct list of the name of each Committed Flows Client, together with a notation as to whether, as of April 26, 2017, such Committed Flows Client was expected to become a Separate Account Client, a Public Fund or a Private Fund and whether the Company Group was expected to act in a sub-advisory capacity with respect to such Committed Flows Client; (iv) without duplication of clause (ii), for each such Committed Flows Client: (A) the amount of Committed Flows AUM; (B) the investment advisory, investment management, sub-advisory or similar fee rate that, as of April 26, 2017, was expected to become payable to the applicable member of the Company Group with respect to such Committed Flows AUM as set forth on Annex C-2 to the Company Group Disclosure Schedule; and (C) the revenue run-rate with respect to such Committed Flows Client (determined as the product of the amount determined pursuant to the foregoing clause (iv)(A) and the rate determined pursuant to the foregoing clause (iv)(B)); and (v) the sum of all of the amounts set forth pursuant to the foregoing clauses (ii)(C) and (iv)(C), representing the Revenue Run-Rate as of the Base Date for all Clients (other than Committed Flows Clients) and, without duplication, the Revenue Run-Rate as of April 26, 2017 for all Committed Flows Clients (the “Base Revenue Run-Rate”), provided that the Buyers acknowledge that (x) the expectations stated in clauses (iii) and (iv) are based solely on the non-binding, oral advi...
Assets Under Management; Clients. (a) Schedule 3.19(a) sets forth a complete and correct list, as of the Base Date, of the information set forth in Exhibit 3.19 hereto (such Schedule 3.19(a) and all of the information set forth therein, as prepared as of any specified date pursuant to the terms of this Agreement, the “Price Adjustment Schedule”).
(b) Since January 1, 2004, neither Seller, the Company nor any Controlled Affiliate has received written notice from any Client to, and, to the knowledge of the Company or Seller, no Client has stated orally its intention to, (i) terminate, or to place under review, any of its accounts, (ii) to initiate a search for a replacement distributor, fund manager or investment adviser, as the case may be, or (iii) other than in the case of a Client that is a Mutual Fund, to withdraw more than ten percent (10%) of the assets under management in any of its accounts.
(c) Each Client to which the Company or any Controlled Affiliate provides investment management, advisory or sub-advisory services that is (i) an employee benefit plan, as defined in Section 3(3) of ERISA that is subject to Title I of ERISA, (ii) a Person acting on behalf of such a plan or (iii) any entity whose assets include the assets of such a plan, within the meaning of ERISA and applicable regulations (hereinafter referred to as an “ERISA Client”) have been managed by the Company or any Company Subsidiary such that the exercise of such management or provision of any services is in compliance in all material respects with the applicable requirements of ERISA. Schedule 3.19(a) identifies each Client that is an ERISA Client with an appropriate footnote. SSR Realty Advisors and State Street Research Management Company each satisfy the requirements of Prohibited Transaction Class Exemption 84-14 for a “qualified professional asset manager” (as such term is used in Prohibited Transaction Class Exemption 84-14).
(i) All performance information provided, presented or made available by the Company or its Controlled Affiliates to any Client or potential Client has complied in all material respects with AIMR Performance Presentation Standards (“AIMR-PPS”) and Applicable Law; (ii) the Company and each of its Controlled Affiliates, as applicable, maintains all documentation necessary to form the basis for, demonstrate or recreate the calculation of the performance or rate of return of all accounts that are included in a composite (current and historical performance results) as required by AIMR-PPS and ...
