Closing Certificates and Opinions. (1) The Trading Advisor shall, at the Partnership's first Monthly Closing following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus), provide the following: (a) To DWR, the General Partner and the Partnership a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that: (i) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing. (ii) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing. (b) To DWR, the General Partner and the Partnership an opinion of counsel to the Trading Advisor, in form and substance satisfactory to such parties, to the effect that: (i) The Trading Advisor is a corporation duly organized and validly existing under the laws of the state of its incorporation and is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement. (ii) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, self-regulatory and commodity exchange and clearing association licenses, registrations, and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has made all filings necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigations, none of such licenses, memberships or registrations have been rescinded, revoked or suspended. (iii) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a valid and binding agreement of the Trading Advisor enforceable in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of the indemnification, exculpation, and contribution provisions contained in this Agreement may be limited by applicable law or public policy and the enforcement of specific terms or remedies may be unavailable. (iv) Based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either threatened or pending in any court or before or by any governmental or administrative body nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus. (v) The execution and delivery of this Agreement the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of any of the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, will not constitute a breach of, or default under, or a violation of any instrument or agreement known to such counsel by which the Trading Advisor is bound and will not violate any order, law, rule or regulation applicable to the Trading Advisor of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Advisor. (vi) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended. (vii) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine. (2) The General Partner shall, at the Partnership's first Monthly Closing following the effective date of the Registration Statement, provide the following: (a) To the Trading Advisor a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that: (i) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing. (ii) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct. (iii) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing. (b) Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the General Partner and the Partnership, shall deliver its opinion to the parties hereto, in form and substance satisfactory to the parties hereto, to the effect that: (i) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing under the laws of the State of Delaware with full partnership power and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate of Authority as contemplated under the New York Revised Limited Partnership Act and is qualified to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and Prospectus. (ii) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and Prospectus. The General Partner has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement. (iii) The General Partner and each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which would not have a material adverse effect on their ability to act as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended. (iv) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, and constitutes a valid and binding agreement of the General Partner and the Partnership, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of indemnification, exculpation and contribution provisions contained in such agreements may be limited by applicable law or public policy. (v) The execution and delivery of this Agreement and the offer and sale of the Units by the Partnership and the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, or the Limited Partnership Agreement and, to the best of such counsel's knowledge based upon due inquiry of certain officers of the General Partner, will not constitute a breach of, or default under, or a violation of any agreement or instrument known to such counsel by which the General Partner or the Partnership is bound and will not violate any order known to such counsel or any law, rule or regulation applicable to the General Partner or the Partnership of any court, governmental body, administrative agency, panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership. (vi) To such counsel's knowledge, based upon due inquiry of certain officers of the General Partner, except as disclosed in the Prospectus, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, governmental body, administrative agency, panel or self-regulatory organization, nor have there been any such suits or proceedings within the five years preceding the date of the Prospectus, to which the General Partner or the Partnership is or was a party, or to which any of their assets is or was subject, which would be material to an investor's decision to invest in the Partnership or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of business. (vii) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws. (viii) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus. (ix) Based upon reliance on certain SEC "no-action" letters, as of the closing, the Partnership need not register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 3 contracts
Samples: Management Agreement (Witter Dean Select Futures Fund Lp), Management Agreement (Dean Witter Spectrum Select Lp), Management Agreement (Dean Witter Spectrum Select Lp)
Closing Certificates and Opinions. (1a) The Trading Advisor shall, at the Partnership's first Monthly Initial Closing following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)monthly closing thereafter, provide the following:
(ai) To DWRMS&Co., the General Partner and the Partnership a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(iA) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(iiB) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(bii) To DWRMS&Co., the General Partner and the Partnership an opinion of counsel to the Trading Advisor, Advisor in form and substance satisfactory to such parties, to the effect that:
(iA) The Trading Advisor is a corporation duly organized and validly existing under the laws of the state jurisdiction of its incorporation and is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiB) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, self-regulatory and commodity exchange and clearing association licenses, registrations, and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has made all filings necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigationsinvestigation, none of such licenses, memberships or registrations have been rescinded, revoked or suspended.
(iiiC) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a legal, valid and binding agreement of the Trading Advisor, enforceable against the Trading Advisor enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, receivership or similar other laws at the time in effect relating to or affecting the enforceability generally of creditors' rights of creditors generally, and by to general principles of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability that the enforcement of the indemnification, exculpation, rights with respect to indemnification and contribution obligations and provisions contained in this Agreement may be limited by applicable law or considerations of public policy and the enforcement of specific terms or remedies may be unavailablepolicy.
(ivD) Based upon due inquiry of certain officers of the Trading Advisor, to the best of To such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either pending or threatened or pending in any court or before or by any court, governmental body, administrative agency, panel or administrative body self-regulatory organization, nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(vE) The execution and delivery by the Trading Advisor of this Agreement the incurrence of the obligations herein set forth Agreement, and the consummation performance by the Trading Advisor of the transactions contemplated herein its obligations hereunder and in the Prospectus (a) will not require any governmental approval to be in contravention of any of obtained on the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers part of the Trading Advisor, except those that have been obtained and, to the best of such counsel's knowledge, are in effect, (b) will not constitute result in a violation of any provision of the Trading Advisor's organizational documents or any applicable laws applicable to the Trading Advisor, and (c) will not breach or result in a violation of, or default under, (i) any indenture, mortgage, deed of trust, agreement or a violation of any instrument or agreement known to such counsel to which the Trading Advisor or any of its subsidiaries is a party or by which the Trading Advisor or any of its subsidiaries is bound and will not violate or to which any orderof the property or assets of the Trading Advisor or any of its subsidiaries is subject, lawor (ii) any judgment, rule decree or regulation order known to such counsel that is applicable to the Trading Advisor of and, pursuant to any court or applicable laws, is issued by any governmental body or administrative agency or panel or self-regulatory organization authority having jurisdiction over the Trading AdvisorAdvisor or its properties.
(viF) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(viiG) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading; provided, however, that such counsel need express no opinion or belief as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus, except that such counsel shall opine, without rendering any opinion as to the accuracy of the information in such tables, that the actual performance tables of the Trading Advisor set forth in the Prospectus comply as to form in all material respects with applicable CFTC rules and all CFTC and NFA interpretations thereof. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2iii) To MS&Co., the General Partner and the Partnership, a report dated the date of the closing that shall present, for the period from the date after the last day covered by the historical performance capsules in the Prospectus to the latest practicable day before closing, updated performance information, and that shall certify that such information is, to the best of such Trading Advisor's knowledge, accurate in all material respects.
(b) The General Partner shall, at the Partnership's first Monthly Closing following the effective date of the Registration StatementInitial Closing, provide the following:
(ai) To the Trading Advisor a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
(iA) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.;
(iiB) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iiiC) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(bii) To the parties hereto, an opinion of Cadwalader, Xxxxxxxxxx Wickersham & XxxxTaft LLP, counsel to the General Partner and the PartnershipPartnexxxxx, shall deliver its opinion to the parties hereto, in form xx xorm and substance satisfactory to the parties heretosuch parties, to the effect that:
(iA) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing and in good standing under the laws of the State of Delaware with full limited partnership power to enter into and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate certificate from the New York Secretary of Authority as contemplated under State certifying that the Partnership filed an application for authority pursuant to Section 121-902 of the New York Revised Limited Partnership Act and that, so far as shown by the records of the New York Department of State, the Partnership is qualified authorized to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and ProspectusState of New York.
(iiB) The General Partner is duly organized and a corporation validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and Prospectus. The General Partner has full with corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement. The General Partner is duly qualified as a foreign corporation to do business in the State of New York. To such counsel's knowledge, the General Partner does not conduct business in any jurisdiction other than the State of New York.
(iiiC) The General Partner and Partner, each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and New York state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement and to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which which, either individually or in the aggregate, would not be reasonably likely to have a material adverse effect on the ability of the Partnership or the General Partner to conduct their ability to act business as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(ivD) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, Partnership and constitutes a legal, valid and binding agreement of the General Partner and the Partnership, enforceable against the General Partner and the Partnership, in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, receivership or similar other laws at the time in effect relating to or affecting the enforceability generally of creditors' rights of creditors generally, and by to general principals principles of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability that the enforcement of indemnification, exculpation rights with respect to indemnification and contribution obligations and provisions contained in such agreements relating to submission to jurisdiction, venue or service of process, may be limited by applicable law or considerations of public policy.
(vE) The execution and delivery by each of the General Partner and the Partnership of this Agreement and the offer and sale performance by each of the Units by General Partner and the Partnership and the incurrence of the its respective obligations herein set forth and the consummation of the transactions contemplated herein hereunder and in the Prospectus will (a) do not require any Governmental Approval to be obtained on the part of the General Partner or the Partnership, except those that have been obtained and, to such counsel's knowledge, are in contravention effect, (b) do not result in a violation of any provision of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, Partnership or the Limited Partnership Agreement and, of the Partnership or any Applicable Laws applicable to the best of such counsel's knowledge based upon due inquiry of certain officers of General Partner and the General PartnerPartnership, will and (c) do not constitute breach or result in a breach violation of, or default under, or a violation (i) any of any agreement or instrument the agreements listed on the Registration Statement which are known to such counsel by which the General Partner counsel's knowledge to be effective, or the Partnership is bound and will not violate (ii) any judgment, decree or order known to such counsel or any law, rule or regulation which is applicable to the General Partner or the Partnership of and, pursuant to any courtApplicable Laws, governmental body, administrative agency, panel or self-regulatory organization is issued by any Governmental Authority having jurisdiction over it or its properties. "Applicable Laws" means those laws, rules and regulations of the General Partner or State of New York and of the Partnership.
(vi) To United States of America which, in such counsel's knowledgeexperience, based upon due inquiry of certain officers are normally applicable to transactions of the General Partnertype contemplated by this Agreement. "Governmental Authorities" means executive, except as disclosed in the Prospectuslegislative, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, governmental bodyjudicial, administrative agency, panel or self-regulatory organization, nor have there been any such suits or proceedings within the five years preceding the date bodies of the Prospectus, to which the General Partner State of New York or the Partnership is United States of America. "Government Approval" means any consent, approval, license, authorization or was a partyvalidation of, or filing, recording or registration with any Governmental Authority pursuant to which any of their assets is or was subject, which would be material to an investor's decision to invest in the Partnership or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of businessApplicable Laws.
(vii) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws.
(viii) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ix) Based upon reliance on certain SEC "no-action" letters, as of the closing, the Partnership need not register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 3 contracts
Samples: Management Agreement (Morgan Stanley Spectrum Global Balanced Lp), Management Agreement (Morgan Stanley Spectrum Global Balanced Lp), Management Agreement (Morgan Stanley Spectrum Currency Lp)
Closing Certificates and Opinions. (1a) The Trading Advisor shall, at the Partnership's first Monthly Initial Closing following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)monthly closing thereafter, provide the following:
(ai) To DWRMS&Co., the General Partner and the Partnership a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(iA) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(iiB) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(bii) To DWRMS&Co., the General Partner and the Partnership an opinion of counsel to the Trading Advisor, Advisor in form and substance satisfactory to such parties, or as otherwise agreed to by the parties hereto, to the effect that:
(iA) The Trading Advisor is a corporation duly organized and validly existing under the laws of the state jurisdiction of its incorporation and is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiB) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, self-regulatory and commodity exchange and clearing association licenses, registrations, and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has made all filings necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigationsinvestigation, none of such licenses, memberships or registrations have been rescinded, revoked or suspended.
(iiiC) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a legal, valid and binding agreement of the Trading Advisor, enforceable against the Trading Advisor enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, receivership or similar other laws at the time in effect relating to or affecting the enforceability generally of creditors' rights of creditors generally, and by to general principles of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability that the enforcement of the indemnification, exculpation, rights with respect to indemnification and contribution obligations and provisions contained in this Agreement may be limited by applicable law or considerations of public policy and the enforcement of specific terms or remedies may be unavailablepolicy.
(ivD) Based upon due inquiry of certain officers of the Trading Advisor, to the best of To such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either pending or threatened or pending in any court or before or by any court, governmental body, administrative agency, panel or administrative body self-regulatory organization, nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(vE) The execution and delivery by the Trading Advisor of this Agreement the incurrence of the obligations herein set forth Agreement, and the consummation performance by the Trading Advisor of the transactions contemplated herein its obligations hereunder and in the Prospectus (a) will not require any governmental approval to be in contravention of any of obtained on the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers part of the Trading Advisor, except those that have been obtained and, to the best of such counsel's knowledge, are in effect, (b) will not constitute result in a violation of any provision of the Trading Advisor's organizational documents or any applicable laws applicable to the Trading Advisor, and (c) will not breach or result in a violation of, or default under, (i) any indenture, mortgage, deed of trust, agreement or a violation of any instrument or agreement known to such counsel to which the Trading Advisor or any of its subsidiaries is a party or by which the Trading Advisor or any of its subsidiaries is bound and will not violate or to which any orderof the property or assets of the Trading Advisor or any of its subsidiaries is subject, lawor (ii) any judgment, rule decree or regulation order known to such counsel that is applicable to the Trading Advisor of and, pursuant to any court or applicable laws, is issued by any governmental body or administrative agency or panel or self-regulatory organization authority having jurisdiction over the Trading AdvisorAdvisor or its properties.
(viF) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(viiG) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading; provided, however, that such counsel need express no opinion or belief as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus, except that such counsel shall opine, without rendering any opinion as to the accuracy of the information in such tables, that the actual performance tables of the Trading Advisor set forth in the Prospectus comply as to form in all material respects with applicable CFTC rules and all CFTC and NFA interpretations thereof. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2iii) To MS&Co., the General Partner and the Partnership, a report dated the date of the closing that shall present, for the period from the date after the last day covered by the historical performance capsules in the Prospectus to the latest practicable day before closing, updated performance information, and that shall certify that such information is, to the best of such Trading Advisor's knowledge, accurate in all material respects.
(b) The General Partner shall, at the Partnership's first Monthly Closing following the effective date of the Registration StatementInitial Closing, provide the following:
(ai) To the Trading Advisor a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
(iA) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.;
(iiB) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iiiC) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(bii) To the parties hereto, an opinion of Cadwalader, Xxxxxxxxxx Wickersham & XxxxTaft LLP, counsel to the General Partner and the PartnershipPartnexxxxx, shall deliver its opinion to the parties hereto, in form xx xorm and substance satisfactory to the parties heretosuch parties, to the effect that:
(iA) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing and in good standing under the laws of the State of Delaware with full limited partnership power to enter into and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate certificate from the New York Secretary of Authority as contemplated under State certifying that the Partnership filed an application for authority pursuant to Section 121-902 of the New York Revised Limited Partnership Act and that, so far as shown by the records of the New York Department of State, the Partnership is qualified authorized to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and ProspectusState of New York.
(iiB) The General Partner is duly organized and a corporation validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and Prospectus. The General Partner has full with corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement. The General Partner is duly qualified as a foreign corporation to do business in the State of New York. To such counsel's knowledge, the General Partner does not conduct business in any jurisdiction other than the State of New York.
(iiiC) The General Partner and Partner, each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and New York state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement and to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which which, either individually or in the aggregate, would not be reasonably likely to have a material adverse effect on the ability of the Partnership or the General Partner to conduct their ability to act business as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(ivD) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, Partnership and constitutes a legal, valid and binding agreement of the General Partner and the Partnership, enforceable against the General Partner and the Partnership, in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, receivership or similar other laws at the time in effect relating to or affecting the enforceability generally of creditors' rights of creditors generally, and by to general principals principles of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability that the enforcement of indemnification, exculpation rights with respect to indemnification and contribution obligations and provisions contained in such agreements relating to submission to jurisdiction, venue or service of process, may be limited by applicable law or considerations of public policy.
(vE) The execution and delivery by each of the General Partner and the Partnership of this Agreement and the offer and sale performance by each of the Units by General Partner and the Partnership and the incurrence of the its respective obligations herein set forth and the consummation of the transactions contemplated herein hereunder and in the Prospectus will (a) do not require any Governmental Approval to be obtained on the part of the General Partner or the Partnership, except those that have been obtained and, to such counsel's knowledge, are in contravention effect, (b) do not result in a violation of any provision of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, Partnership or the Limited Partnership Agreement and, of the Partnership or any Applicable Laws applicable to the best of such counsel's knowledge based upon due inquiry of certain officers of General Partner and the General PartnerPartnership, will and (c) do not constitute breach or result in a breach violation of, or default under, or a violation (i) any of any agreement or instrument the agreements listed on the Registration Statement which are known to such counsel by which the General Partner counsel's knowledge to be effective, or the Partnership is bound and will not violate (ii) any judgment, decree or order known to such counsel or any law, rule or regulation which is applicable to the General Partner or the Partnership of and, pursuant to any courtApplicable Laws, governmental body, administrative agency, panel or self-regulatory organization is issued by any Governmental Authority having jurisdiction over it or its properties. "Applicable Laws" means those laws, rules and regulations of the General Partner or State of New York and of the Partnership.
(vi) To United States of America which, in such counsel's knowledgeexperience, based upon due inquiry of certain officers are normally applicable to transactions of the General Partnertype contemplated by this Agreement. "Governmental Authorities" means executive, except as disclosed in the Prospectuslegislative, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, governmental bodyjudicial, administrative agency, panel or self-regulatory organization, nor have there been any such suits or proceedings within the five years preceding the date bodies of the Prospectus, to which the General Partner State of New York or the Partnership is United States of America. "Government Approval" means any consent, approval, license, authorization or was a partyvalidation of, or filing, recording or registration with any Governmental Authority pursuant to which any of their assets is or was subject, which would be material to an investor's decision to invest in the Partnership or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of businessApplicable Laws.
(vii) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws.
(viii) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ix) Based upon reliance on certain SEC "no-action" letters, as of the closing, the Partnership need not register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 2 contracts
Samples: Management Agreement (Morgan Stanley Spectrum Global Balanced Lp), Management Agreement (Morgan Stanley Spectrum Select Lp)
Closing Certificates and Opinions. (1) The Trading Advisor shall, at the Partnership's first Monthly Initial Closing following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)monthly closing thereafter, provide the following:
(a) To DWRXxxxxx Xxxxxxx XX, the General Partner and the Partnership a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(i) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(ii) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(b) To DWRXxxxxx Xxxxxxx XX, the General Partner and the Partnership an opinion of counsel to the Trading Advisor, in form and substance satisfactory to such parties, to the effect that:
(i) The Trading Advisor is a corporation duly organized and validly existing under the laws of the state jurisdiction of its incorporation and is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ’s ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(ii) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, self-regulatory and commodity exchange and clearing association licenses, registrations, and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has made all filings necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's ’s knowledge, after due investigationsinvestigation, none of such licenses, memberships or registrations have been rescinded, revoked or suspended.
(iii) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a legal, valid and binding agreement of the Trading Advisor, enforceable against the Trading Advisor enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, receivership or similar other laws at the time in effect relating to or affecting the enforceability generally of creditors’ rights of creditors generally, and by to general principles of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability that the enforcement of the indemnification, exculpation, rights with respect to indemnification and contribution obligations and provisions contained in this Agreement (a) purporting to waive or limit rights to trial by jury, oral amendments to written agreements or rights of set off or (b) relating to submission to jurisdiction, venue or service of process, may be limited by applicable law or considerations of public policy and the enforcement of specific terms or remedies may be unavailablepolicy.
(iv) Based upon due inquiry of certain officers of the Trading Advisor, to the best of To such counsel's ’s knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either threatened or pending in any court or before or by any governmental or administrative body nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(v) The execution and delivery of this Agreement the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of any of the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, will not constitute a breach of, or default under, or a violation of any instrument or agreement known to such counsel by which the Trading Advisor is bound and will not violate any order, law, rule or regulation applicable to the Trading Advisor of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Advisor.
(vi) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(vii) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2) The General Partner shall, at the Partnership's first Monthly Closing following the effective date of the Registration Statement, provide the following:
(a) To the Trading Advisor a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
(i) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iii) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(b) Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the General Partner and the Partnership, shall deliver its opinion to the parties hereto, in form and substance satisfactory to the parties hereto, to the effect that:
(i) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing under the laws of the State of Delaware with full partnership power and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate of Authority as contemplated under the New York Revised Limited Partnership Act and is qualified to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and Prospectus.
(ii) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and Prospectus. The General Partner has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iii) The General Partner and each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which would not have a material adverse effect on their ability to act as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(iv) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, and constitutes a valid and binding agreement of the General Partner and the Partnership, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of indemnification, exculpation and contribution provisions contained in such agreements may be limited by applicable law or public policy.
(v) The execution and delivery of this Agreement and the offer and sale of the Units by the Partnership and the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, or the Limited Partnership Agreement and, to the best of such counsel's knowledge based upon due inquiry of certain officers of the General Partner, will not constitute a breach of, or default under, or a violation of any agreement or instrument known to such counsel by which the General Partner or the Partnership is bound and will not violate any order known to such counsel or any law, rule or regulation applicable to the General Partner or the Partnership of any court, governmental body, administrative agency, panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership.
(vi) To such counsel's knowledge, based upon due inquiry of certain officers of the General Partner, except as disclosed in the Prospectus, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, governmental body, administrative agency, panel or self-regulatory organization, nor have there been any such actions, suits or proceedings within the five years preceding the date of the Prospectus, to which Prospectus against the General Partner or the Partnership is or was a party, or to which any of their assets is or was subject, which would be material to an investor's decision to invest in the Partnership or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of business.
(vii) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act Trading Advisor or any similar state securities laws.
(viii) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any untrue statement of a material fact or omitted to state a material fact Trading Advisor Principal which are required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information disclosed in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ixv) Based upon reliance The execution and delivery by the Trading Advisor of this Agreement, and the performance by the Trading Advisor of its obligations hereunder and in the Prospectus (a) do not require any Governmental Approval (as defined below) to be obtained on certain SEC "no-action" letters, as the part of the closingTrading Advisor, the Partnership need except those that have been obtained and, to such counsel’s knowledge, are in effect, (b) do not register as an "investment company" under the Investment Company Act result in a violation of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers any provision of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power certificate of Attorney in incorporation or bylaws of the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.Trading Advisor or any Applicable
Appears in 2 contracts
Samples: Management Agreement (Morgan Stanley Charter Aspect L.P.), Management Agreement (Morgan Stanley Charter WCM L.P.)
Closing Certificates and Opinions. (1) The Trading Advisor shall, at the Partnership's first Monthly Initial Closing following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)monthly closing thereafter, provide the following:
(a) To DWRMorgan Stanley DW, the General Partner and the Partnership a certificatecertifxxxxx, dated the xxxxx xxx date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(i) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(ii) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(b) To DWRMorgan Stanley DW, the General Partner and the Partnership an opinion of counsel to opinixx xx cxxxxxx xx the Trading Advisor, in form and substance satisfactory to such parties, to the effect that:
(i) The Trading Advisor is a corporation duly organized and validly existing under the laws of the state jurisdiction of its incorporation and is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(ii) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, self-regulatory and commodity exchange and clearing association licenses, registrations, and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has made all filings necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigationsinvestigation, none of such licenses, memberships or registrations have been rescinded, revoked or suspended.
(iii) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a legal, valid and binding agreement of the Trading Advisor, enforceable against the Trading Advisor enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, receivership or similar other laws at the time in effect relating to or affecting the enforceability generally of creditors' rights of creditors generally, and by to general principles of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability that the enforcement of the indemnification, exculpation, rights with respect to indemnification and contribution obligations and provisions contained in this Agreement (a) purporting to waive or limit rights to trial by jury, oral amendments to written agreements or rights of set off or (b) relating to submission to jurisdiction, venue or service of process, may be limited by applicable law or public policy and the enforcement considerations of specific terms or remedies may be unavailable.
(iv) Based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either threatened or pending in any court or before or by any governmental or administrative body nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(v) The execution and delivery of this Agreement the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of any of the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, will not constitute a breach of, or default under, or a violation of any instrument or agreement known to such counsel by which the Trading Advisor is bound and will not violate any order, law, rule or regulation applicable to the Trading Advisor of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Advisor.
(vi) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(vii) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2) The General Partner shall, at the Partnership's first Monthly Closing following the effective date of the Registration Statement, provide the following:
(a) To the Trading Advisor a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
(i) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iii) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(b) Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the General Partner and the Partnership, shall deliver its opinion to the parties hereto, in form and substance satisfactory to the parties hereto, to the effect that:
(i) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing under the laws of the State of Delaware with full partnership power and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate of Authority as contemplated under the New York Revised Limited Partnership Act and is qualified to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and Prospectus.
(ii) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and Prospectus. The General Partner has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iii) The General Partner and each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which would not have a material adverse effect on their ability to act as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(iv) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, and constitutes a valid and binding agreement of the General Partner and the Partnership, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of indemnification, exculpation and contribution provisions contained in such agreements may be limited by applicable law or public policy.
(v) The execution and delivery of this Agreement and the offer and sale of the Units by the Partnership and the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, or the Limited Partnership Agreement and, to the best of such counsel's knowledge based upon due inquiry of certain officers of the General Partner, will not constitute a breach of, or default under, or a violation of any agreement or instrument known to such counsel by which the General Partner or the Partnership is bound and will not violate any order known to such counsel or any law, rule or regulation applicable to the General Partner or the Partnership of any court, governmental body, administrative agency, panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership.
(viiv) To such counsel's knowledge, based upon due inquiry of certain officers of the General PartnerTrading Advisor, except as disclosed in the Prospectus, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, governmental body, administrative agency, panel or self-regulatory organization, nor have there been any such actions, suits or proceedings within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(v) The execution and delivery by the Trading Advisor of this Agreement, and the performance by the Trading Advisor of its obligations hereunder and in the Prospectus (a) do not require any Governmental Approval (as defined below) to be obtained on the part of the Trading Advisor, except those that have been obtained and, to such counsel's knowledge, are in effect, (b) do not result in a violation of any provision of the certificate of incorporation or bylaws of the Trading Advisor or any Applicable Laws (as defined below) applicable to the Trading Advisor, and (c) do not breach or result in a violation of, or default under, (i) any indenture, mortgage, deed of trust, agreement or instrument known by us to which the General Partner Trading Advisor or any of its subsidiaries is a party or by which the Partnership Trading Advisor or any of its subsidiaries is or was a party, bound or to which any of their the property or assets of the Trading Advisor or any of its subsidiaries is or was subject, or (ii) any judgment, decree or order known to such counsel which would be material is applicable to an investor's decision to invest in the Partnership or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of business.
(vii) The Registration Statement is effective under the Securities Act Trading Advisor and, pursuant to any Applicable Laws, is issued by any Governmental Authority (as defined below) having jurisdiction over the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws.
(viii) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principalsproperties. "Applicable Laws" means those laws, rules and regulations of the State of New York and of the United States of America which, in such counsel's experience, are normally applicable to transactions of the type contemplated by this Agreement. "Governmental Authorities" means executive, legislative, judicial, administrative or regulatory bodies of the State of New York or the United States of America. "Governmental Approval" means any consent, approval, license, authorization or validation of, or (b) as filing, recording or registration with, any Governmental Authority pursuant to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and ProspectusApplicable Laws.
(ix) Based upon reliance on certain SEC "no-action" letters, as of the closing, the Partnership need not register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 2 contracts
Samples: Management Agreement (Morgan Stanley Charter WCM L.P.), Management Agreement (Morgan Stanley Charter Aspect L.P.)
Closing Certificates and Opinions. (1a) The Trading Advisor shall, at the Partnership's first Monthly Initial Closing following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)Closing, provide the following:
(ai) To DWR, the General Partner and the Partnership a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(iA) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(iiB) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(bii) To DWR, the General Partner and the Partnership an opinion of counsel to the Trading Advisor, in form and substance satisfactory to such parties, to the effect that:
(iA) The Trading Advisor is a corporation duly organized and validly existing under the laws of the state of its incorporation and is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiB) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, and self-regulatory and commodity exchange and clearing association licenses, registrations, registrations and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has received or made all filings and registrations necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigationsinvestigation, none of such licensessuch, memberships or registrations have been rescinded, revoked or suspended.
(iiiC) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a valid and binding agreement of the Trading Advisor enforceable in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principles principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of the indemnification, exculpation, and contribution provisions contained in this Agreement such agreements may be limited by applicable law or public policy and the enforcement of specific terms or remedies may be unavailablepolicy.
(ivD) Based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either pending or threatened or pending in any court or before or by any court, governmental body, administrative agency, panel or administrative body self- regulatory organization, nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(vE) The execution and delivery of this Agreement Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of any of the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, will not constitute a breach of, or default under, or a violation of any instrument or agreement known to such counsel by which the Trading Advisor is bound and will not violate any order, law, rule or regulation applicable to the Trading Advisor of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Advisor.
(viF) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(viiG) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading; provided, however, that such counsel need express no opinion or belief as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus, except that such counsel shall opine, without rendering any opinion as to the accuracy of the information in such tables, that the actual performance tables of the Trading Advisor set forth in the Prospectus comply as to form in all material respects with applicable CFTC rules and all CFTC and NFA interpretations thereof, except as disclosed in the Prospectus. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2iii) To DWR, the General Partner and the Partnership, a report dated the date of the closing which shall present, for the period from the date after the last day covered by the historical performance capsules in the Prospectus to the latest practicable day before closing, updated performance information which shall certify that such figures are, to the best of such Trading Advisor's knowledge, accurate in all material respects.
(b) The General Partner shall, at the Partnership's first Monthly Initial Closing following and at the effective date request of the Registration StatementTrading Advisor at any Closing, provide the following:
(ai) To the Trading Advisor a certificate, dated the date of such closing closings and in form and substance satisfactory to the Trading Advisor, to the effect that:
(iA) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.
(iiB) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending sus pending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iiiC) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(bii) To the parties hereto, an opinion of Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the General Partner and the Partnership, shall deliver its opinion to the parties hereto, in form and substance satisfactory to the parties heretosuch parties, to the effect that:
(iA) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing under the laws of the State of Delaware with full partnership power and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate of Authority as contemplated under the New York Revised Limited Partnership Act and is qualified to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and Prospectus.
(iiB) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and Prospectus. The General Partner has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiiC) The General Partner and Partner, each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which would not have a material adverse effect on their the ability of the Partnership or the General Partner to act as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(ivD) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, and constitutes a valid and binding agreement of the General Partner and the Partnership, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of indemnification, exculpation and contribution provisions contained in such agreements this Agreement may be limited by applicable law or public policy.
(vE) The execution and delivery of this Agreement and the offer and sale of the Units by the Partnership and the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, or and the Limited Partnership Agreement and, to the best of such counsel's knowledge based upon due inquiry of certain officers of the General Partner, none of the foregoing will not constitute a breach of, or default under, or a violation of any agreement or instrument known to such counsel by which the General Partner or the Partnership is bound and will not or violate any order known to such counsel or any law, rule or regulation applicable to the General Partner or the Partnership of any court, governmental body, administrative agency, panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership.
(viF) To such counsel's knowledge, based upon due inquiry of certain officers of the General Partner, except as disclosed in the Prospectus, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, court governmental body, administrative agency, panel or self-self regulatory organization, nor have there been any such actions, suits or proceedings within the five years preceding the date of the Prospectus, to which Prospectus against the General Partner or the Partnership is or was a party, or which are required to which any of their assets is or was subject, which would be material to an investor's decision to invest disclosed in the Partnership Registration Statement or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of businessProspectus.
(viiG) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws.
(viiiH) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. .
(I) Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ixJ) Based upon reliance on certain SEC "no-action" letters, as of the closing, the performance of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Partnership need not to register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 1 contract
Samples: Management Agreement (Morgan Stanley Dean Witter Spectrum Currency Lp)
Closing Certificates and Opinions. (1a) The Trading Advisor shall, at the Partnership's first Monthly Closing following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)monthly closing, provide the following:
(ai) To DWR, the General Partner and the Partnership a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(iA) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(iiB) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(bii) To DWR, the General Partner and the Partnership an opinion of counsel to the Trading Advisor, in form and substance satisfactory to such parties, to the effect that:
(iA) The Trading Advisor is a corporation duly organized and validly existing under the laws of the state State of its incorporation Delaware and is qualified to do business and in good standing in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiB) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, and self-regulatory and commodity exchange and clearing association licenses, registrations, registrations and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has received or made all filings and registrations necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to to
10.01 perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigationsinvestigation, none of such such, licenses, memberships or registrations have been rescinded, revoked or suspended.
(iiiC) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a valid and binding agreement of the Trading Advisor enforceable in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of the indemnification, exculpation, and contribution provisions contained in this Agreement may be limited by applicable law or public policy and the enforcement of specific terms or remedies may be unavailable.
(ivD) Based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either pending or threatened or pending in any court or before or by any court, governmental body, administrative agency, panel or administrative body self- regulatory organization, nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(vE) The execution and delivery of this Agreement Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of any of the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, will not constitute a breach of, or default under, or a violation of any instrument or agreement known to such counsel by which the Trading Advisor is bound and will not violate any order, law, rule or regulation applicable to the Trading Advisor of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Advisor.
(viF) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(viiG) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading; provided, however, that such counsel need express no opinion or belief as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus, except that such counsel shall opine, without rendering any opinion as to the accuracy of the
10.01 17 information in such tables, that the actual performance tables of the Trading Advisor set forth in the Prospectus comply as to form in all material respects with applicable CFTC rules and all CFTC and NFA interpretations thereof, except as disclosed in the Prospectus or as otherwise permitted by the CFTC staff. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2iii) To DWR, the General Partner and the Partnership, a report dated the date of the closing which shall present, for the period from the date after the last day covered by the historical performance capsules in the Prospectus to the latest practicable day before closing, updated performance information which shall certify that such figures are, to the best of such Trading Advisor's knowledge, accurate in all material respects.
(b) The General Partner shall, at the Partnership's first Monthly Closing following the effective date if a similar request is made of the Registration StatementTrading Advisor at any monthly closing, provide the following:
(ai) To the Trading Advisor a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
(iA) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.
(iiB) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iiiC) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(bii) Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the General Partner and the Partnership, shall deliver its opinion to the parties hereto, hereto in form and substance satisfactory to the parties hereto, to the effect that:
(iA) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing and in good standing under the laws of the State of Delaware with full limited partnership power to enter into and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate of Authority as contemplated under the New York Revised Limited Partnership Act and is qualified to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and Prospectus.
10.01 18
(iiB) The General Partner is duly organized and a corporation validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and Prospectus. The General Partner has full with corporate power and authority to conduct its business as described in the Registration Statement and Prospectus enter into and to perform its obligations under this Agreement.
(iii) The General Partner and each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which would not have a material adverse effect on their ability to act as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(ivC) This Agreement has been duly authorized, executed and delivered by or the General Partner on behalf of the General Partner and the Partnership, and constitutes a legal, valid and binding agreement of the General Partner and the Partnership, enforceable against the General Partner and the Partnership in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, receivership or similar other laws at the time in effect relating to or affecting the enforceability creditors' rights generally of rights of creditors , and by to, general principals of equity (regardless of whether such enforceability is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability that the enforcement of indemnification, exculpation rights with respect to indemnification and contribution obligations and provisions contained in such agreements relating to submission to jurisdiction, venue, or service of process, may be limited by applicable law or considerations of public policy.
(vD) The execution and delivery by the General Partner on behalf of the Partnership of this Agreement Agreement, and the offer performance by the General Partner and sale the Partnership of their respective obligations hereunder (a) do not require any governmental approval to be obtained on the part of the Units by the Partnership General Partner and the incurrence Partnership, except those that have been obtained and, to such counsel's knowledge , are in effect, (b) do not result in a violation of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention any provision of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership of the Partnership, or and the Limited Partnership Agreement and, of the Partnership or any applicable laws applicable to the best of such counsel's knowledge based upon due inquiry of certain officers of General Partner and the General PartnerPartnership, will and (c) do not constitute breach or result in a breach violation of, or default underunder any judgment, decree or a violation of any agreement or instrument order known to such counsel which is applicable to the General Partner and the Partnership and, pursuant to any applicable laws, is issued by which any governmental authority having jurisdiction over the General Partner and the Partnership or their properties.
(E) To such counsel's knowledge, there is no legal or governmental action, investigation or proceeding pending or threatened against the General Partner or the Partnership is bound (a) asserting the invalidity of this Agreement, (b) seeking to prevent the consummation of any of the transactions provided for in this Agreement, or (c) which would materially and will not violate any order known adversely affect the ability of the General Partner or the Partnership to such counsel perform their obligations under, or any law, rule the validity or regulation applicable enforceability (with respect to the General Partner or the Partnership Partnership) of, this Agreement. For purposes of the opinion set forth in this paragraph, such counsel need not regard any courtlegal or governmental actions, governmental bodyinvestigations or proceedings to be "threatened" unless the potential litigant or Governmental Authority has communicated in writing to the General Partner a present intention to initiate such actions, administrative agency, panel investigations or self-regulatory organization having jurisdiction over proceedings against the General Partner or the Partnership.
(vi) To such counsel's knowledge, based upon due inquiry of certain officers of the General Partner, except as disclosed in the Prospectus, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, governmental body, administrative agency, panel or self-regulatory organization, nor have there been any such suits or proceedings within the five years preceding the date of the Prospectus, to which the General Partner or the Partnership is or was a party, or to which any of their assets is or was subject, which would be material to an investor's decision to invest in the Partnership or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of business.
(viiF) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws.
(viiiG) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. .
(H) Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx such counsel need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ixI) Based upon reliance on certain SEC "no-action" letters, as of the closing, the Partnership need not register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 1 contract
Samples: Management Agreement (Morgan Stanley Dean Witter Spectrum Commodity L P)
Closing Certificates and Opinions. (1) The Trading Advisor shall, at the Partnership's first Monthly Closing following the effective date of the Registration Statement initial closing and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)monthly closing, provide the following:
(a) To DWRMorgan Stanley DW, the General Partner and the Partnership a certificatecertifxxxxx, dated the xxxxx xxx date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(i) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(ii) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(b) To DWRMorgan Stanley DW, the General Partner and the Partnership an opinion of counsel to opinixx xx cxxxxxx xx the Trading Advisor, in form and substance satisfactory to such parties, to the effect that:
(i) The Trading Advisor is a corporation duly organized and validly existing under the laws of the state of its incorporation and is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(ii) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, self-regulatory and commodity exchange and clearing association licenses, registrations, and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has made all filings necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigationsinvestigation, none of such licenses, memberships or registrations have been rescinded, revoked or suspended.
(iii) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a legal, valid and binding agreement of the Trading Advisor, enforceable against the Trading Advisor enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, receivership or similar other laws at the time in effect relating to or affecting the enforceability generally of creditors' rights of creditors generally, and by to general principles of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability that the enforcement of the indemnification, exculpation, rights with respect to indemnification and contribution obligations and provisions contained in this Agreement (a) purporting to waive or limit rights to trial by jury, oral amendments to written agreements or rights of set off or (b) relating to submission to jurisdiction, venue or service of process, may be limited by applicable law or public policy and the enforcement considerations of specific terms or remedies may be unavailable.
(iv) Based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either threatened or pending in any court or before or by any governmental or administrative body nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(v) The execution and delivery of this Agreement the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of any of the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, will not constitute a breach of, or default under, or a violation of any instrument or agreement known to such counsel by which the Trading Advisor is bound and will not violate any order, law, rule or regulation applicable to the Trading Advisor of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Advisor.
(vi) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(vii) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2) The General Partner shall, at the Partnership's first Monthly Closing following the effective date of the Registration Statement, provide the following:
(a) To the Trading Advisor a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
(i) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iii) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(b) Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the General Partner and the Partnership, shall deliver its opinion to the parties hereto, in form and substance satisfactory to the parties hereto, to the effect that:
(i) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing under the laws of the State of Delaware with full partnership power and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate of Authority as contemplated under the New York Revised Limited Partnership Act and is qualified to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and Prospectus.
(ii) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and Prospectus. The General Partner has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iii) The General Partner and each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which would not have a material adverse effect on their ability to act as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(iv) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, and constitutes a valid and binding agreement of the General Partner and the Partnership, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of indemnification, exculpation and contribution provisions contained in such agreements may be limited by applicable law or public policy.
(v) The execution and delivery of this Agreement and the offer and sale of the Units by the Partnership and the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, or the Limited Partnership Agreement and, to the best of such counsel's knowledge based upon due inquiry of certain officers of the General Partner, will not constitute a breach of, or default under, or a violation of any agreement or instrument known to such counsel by which the General Partner or the Partnership is bound and will not violate any order known to such counsel or any law, rule or regulation applicable to the General Partner or the Partnership of any court, governmental body, administrative agency, panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership.
(viiv) To such counsel's knowledge, based upon due inquiry of certain officers of the General PartnerTrading Advisor, except as disclosed in the Prospectus, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, governmental body, administrative agency, panel or self-regulatory organization, nor have there been any such actions, suits or proceedings within the five years preceding the date of the Prospectus, Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to which the General Partner or the Partnership is or was a party, or to which any of their assets is or was subject, which would be material to an investor's decision to invest disclosed in the Partnership Registration Statement or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of businessProspectus.
(viiv) The Registration Statement is effective under execution and delivery by the Securities Act Trading Advisor of this Agreement, and the performance by the Trading Advisor of its obligations hereunder and in the Prospectus (a) do not require any Governmental Approval (as defined below) to be obtained on the part of the Trading Advisor, except those that have been obtained and, to the best of such counsel's knowledge, no proceedings for are in effect, (b) do not result in a stop order are pending or threatened under Section 8(d) violation of any provision of the Securities Act certificate of incorporation or any similar state securities laws.
(viii) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as bylaws of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or any Applicable Laws (bas defined below) as applicable to the financial statementsTrading Advisor, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as do not breach or result in a violation of, or default under, (i) any indenture, mortgage, deed of trust, agreement or instrument known by us to which the performance data and notes Trading Advisor or descriptions thereto set forth in any of its subsidiaries is a party or by which the Registration Statement and Prospectus.
(ix) Based upon reliance on certain SEC "no-action" letters, as of the closing, the Partnership need not register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.Trading
Appears in 1 contract
Samples: Management Agreement (Morgan Stanley Charter Campbell Lp)
Closing Certificates and Opinions. (1) The Trading Advisor shall, at the Partnership's first Monthly Closing following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus), provide the following:
(a) To DWR, the General Partner and the Partnership a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(i) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(ii) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(b) To DWR, the General Partner and the Partnership an opinion of counsel to the Trading Advisor, in form and substance satisfactory to such parties, to the effect that:
(i) The Trading Advisor is a corporation duly organized and validly existing under the laws of the state of its incorporation and is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(ii) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, self-regulatory and commodity exchange and clearing association licenses, registrations, and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has made all filings necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigations, none of such licenses, memberships or registrations have been rescinded, revoked or suspended.
(iii) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a valid and binding agreement of the Trading Advisor enforceable in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of the indemnification, exculpation, and contribution provisions contained in this Agreement may be limited by applicable law or public policy and the enforcement of specific terms or remedies may be unavailable.
(iv) Based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either threatened or pending in any court or before or by any governmental or administrative body nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(v) The execution and delivery of this Agreement Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of any of the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, will not constitute a breach of, or default under, or a violation of any instrument or agreement known to such counsel by which the Trading Advisor is bound and will not violate any order, law, rule or regulation applicable to the Trading Advisor of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Advisor.
(vi) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in under the Investment Advisers Act of 1940, as amended.
(vii) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading; provided that such counsel need express no opinion or belief as to any Trading Advisor performance data or notes or descriptions thereto set forth in the Registration Statement and Prospectus. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2) The General Partner shall, at the Partnership's first Monthly Closing following the effective date of the Registration Statement, provide the following:
(a) To the Trading Advisor Advisor, a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
(i) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iii) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(b) Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the General Partner and the Partnership, shall deliver its opinion to the parties hereto, in form and substance satisfactory to the parties hereto, to the effect that:
(i) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing under the laws of the State of Delaware with full partnership power and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate of Authority as contemplated under the New York Revised Limited Partnership Act and is qualified to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and Prospectus.
(ii) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations under this Agreement or as described in the Registration Statement and Prospectus. The General Partner has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iii) The General Partner and each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which would not have a material adverse effect on their ability to act as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(iv) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, and constitutes a valid and binding agreement of the General Partner and the Partnership, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of indemnification, exculpation and contribution provisions contained in such agreements may be limited by applicable law or public policy.
(v) The execution and delivery of this Agreement and the offer and sale of the Units by the Partnership and the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, or the Limited Partnership Agreement and, to the best of such counsel's knowledge based upon due inquiry of certain officers of the General Partner, will not constitute a breach of, or default under, or a violation of any agreement or instrument known to such counsel by which the General Partner or the Partnership is bound and will not violate any order known to such counsel or any law, rule or regulation applicable to the General Partner or the Partnership of any court, governmental body, administrative agency, panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership.
(vi) To such counsel's knowledge, based upon due inquiry of certain officers of the General Partner, except as disclosed in the Prospectus, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, governmental body, administrative agency, panel or self-regulatory organization, nor have there been any such suits or proceedings within the five years preceding the date of the Prospectus, to which the General Partner or the Partnership is or was a party, or to which any of their assets is or was subject, which would be material to an investor's decision to invest in the Partnership or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of business.
(vii) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws.
(viii) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ix) Based upon reliance on certain SEC "no-action" letters, as of the closing, the Partnership need not register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 1 contract
Samples: Management Agreement (Dean Witter Spectrum Select Lp)
Closing Certificates and Opinions. (1a) The Trading Advisor shall, at the Partnership's first Monthly Initial Closing following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)monthly closing thereafter, provide the following:
(ai) To DWRMS&Co., the General Partner and the Partnership a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(iA) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(iiB) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(bii) To DWRMS&Co., the General Partner and the Partnership an opinion of counsel to the Trading Advisor, Advisor in form and substance satisfactory to such parties, to the effect that:
(iA) The Trading Advisor is a corporation limited partnership duly organized and validly existing under the laws of the state jurisdiction of its incorporation formation and is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiB) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, self-regulatory and commodity exchange and clearing association licenses, registrations, and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has made all filings necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigationsinvestigation, none of such licenses, memberships or registrations have been rescinded, revoked or suspended.
(iiiC) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a legal, valid and binding agreement of the Trading Advisor, enforceable against the Trading Advisor enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, receivership or similar other laws at the time in effect relating to or affecting the enforceability generally of creditors' rights of creditors generally, and by to general principles of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability that the enforcement of the indemnification, exculpation, rights with respect to indemnification and contribution obligations and provisions contained in this Agreement may be limited by applicable law or considerations of public policy and the enforcement of specific terms or remedies may be unavailablepolicy.
(ivD) Based upon due inquiry of certain officers of the Trading Advisor, to the best of To such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either pending or threatened or pending in any court or before or by any court, governmental body, administrative agency, panel or administrative body self-regulatory organization, nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(vE) The execution and delivery of this Agreement the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of any of the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, will not constitute a breach of, or default under, or a violation of any instrument or agreement known to such counsel by which the Trading Advisor is bound and will not violate any order, law, rule or regulation applicable to the Trading Advisor of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Advisor.
(vi) Based upon reliance of certain SEC "no-action" lettersthis Agreement, as of the closing, and the performance by the Trading Advisor of the transactions contemplated by this Agreement its obligations hereunder and as described in the Prospectus (a) will not require any governmental approval to be obtained on the part of the Trading Advisor, except those that have been obtained and, to such counsel's knowledge, are in effect, (b) will not result in a violation of any provision of the Trading Advisor's organizational documents or any applicable laws applicable to the Trading Advisor, and (c) will not breach or result in a violation of, or default under, (i) any indenture, mortgage, deed of trust, agreement or instrument known to such counsel to which the Trading Advisor or any of its subsidiaries is a party or by which the Trading Advisor or any of its subsidiaries is bound or to be registered as an "investment adviser" as which any of the property or assets of the Trading Advisor or any of its subsidiaries is subject, or (ii) any judgment, decree or order known to such counsel that term is defined in applicable to the Investment Advisers Act of 1940Trading Advisor and, as amendedpursuant to any applicable laws, is issued by any governmental authority having jurisdiction over the Trading Advisor or its properties.
(viiF) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading; provided, however, that such counsel need express no opinion or belief as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus, except that such counsel shall opine, without rendering any opinion as to the accuracy of the information in such tables, that the actual performance tables of the Trading Advisor set forth in the Prospectus comply as to form in all material respects with applicable CFTC rules and all CFTC and NFA interpretations thereof. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2iii) To MS&Co., the General Partner and the Partnership, a report dated the date of the closing that shall present, for the period from the date after the last day covered by the historical performance capsules in the Prospectus to the latest practicable day before closing, updated performance information, and that shall certify that such information is, to the best of such Trading Advisor's knowledge, accurate in all material respects.
(b) The General Partner shall, at the Partnership's first Monthly Closing following the effective date of the Registration StatementInitial Closing, provide the following:
(ai) To the Trading Advisor a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
(iA) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.;
(iiB) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASDFINRA, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iiiC) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(bii) To the parties hereto, an opinion of Cadwalader, Xxxxxxxxxx Wickersham & XxxxTaft LLP, counsel to the General Partner and the PartnershipPartnexxxxx, shall deliver its opinion to the parties hereto, in form xx xorm and substance satisfactory to the parties heretosuch parties, to the effect that:
(iA) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing and in good standing under the laws of the State of Delaware with full limited partnership power to enter into and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate certificate from the New York Secretary of Authority as contemplated under State certifying that the Partnership filed an application for authority pursuant to Section 121-902 of the New York Revised Limited Partnership Act and that, so far as shown by the records of the New York Department of State, the Partnership is qualified authorized to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and ProspectusState of New York.
(iiB) The General Partner is duly organized and a corporation validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and Prospectus. The General Partner has full with corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement. The General Partner is duly qualified as a foreign corporation to do business in the State of New York. To such counsel's knowledge, the General Partner does not conduct business in any jurisdiction other than the State of New York.
(iiiC) The General Partner and Partner, each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and New York state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement and to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which which, either individually or in the aggregate, would not be reasonably likely to have a material adverse effect on the ability of the Partnership or the General Partner to conduct their ability to act business as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(ivD) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, Partnership and constitutes a legal, valid and binding agreement of the General Partner and the Partnership, enforceable against the General Partner and the Partnership, in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, receivership or similar other laws at the time in effect relating to or affecting the enforceability generally of creditors' rights of creditors generally, and by to general principals principles of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability that the enforcement of indemnification, exculpation rights with respect to indemnification and contribution obligations and provisions contained in such agreements relating to submission to jurisdiction, venue or service of process, may be limited by applicable law or considerations of public policy.
(vE) The execution and delivery by each of the General Partner and the Partnership of this Agreement and the offer and sale performance by each of the Units by General Partner and the Partnership and the incurrence of the its respective obligations herein set forth and the consummation of the transactions contemplated herein hereunder and in the Prospectus will (a) do not require any Governmental Approval to be obtained on the part of the General Partner or the Partnership, except those that have been obtained and, to such counsel's knowledge, are in contravention effect, (b) do not result in a violation of any provision of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, Partnership or the Limited Partnership Agreement and, of the Partnership or any Applicable Laws applicable to the best of such counsel's knowledge based upon due inquiry of certain officers of General Partner and the General PartnerPartnership, will and (c) do not constitute breach or result in a breach violation of, or default under, or a violation (i) any of any agreement or instrument the agreements listed on the Registration Statement which are known to such counsel by which the General Partner counsel's knowledge to be effective, or the Partnership is bound and will not violate (ii) any judgment, decree or order known to such counsel or any law, rule or regulation which is applicable to the General Partner or the Partnership of and, pursuant to any courtApplicable Laws, governmental body, administrative agency, panel or self-regulatory organization is issued by any Governmental Authority having jurisdiction over it or its properties. "Applicable Laws" means those laws, rules and regulations of the General Partner or State of New York and of the Partnership.
(vi) To United States of America which, in such counsel's knowledgeexperience, based upon due inquiry of certain officers are normally applicable to transactions of the General Partnertype contemplated by this Agreement. "Governmental Authorities" means executive, except as disclosed in the Prospectuslegislative, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, governmental bodyjudicial, administrative agency, panel or self-regulatory organization, nor have there been any such suits or proceedings within the five years preceding the date bodies of the Prospectus, to which the General Partner State of New York or the Partnership is United States of America. "Government Approval" means any consent, approval, license, authorization or was a partyvalidation of, or filing, recording or registration with any Governmental Authority pursuant to which any of their assets is or was subject, which would be material to an investor's decision to invest in the Partnership or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of businessApplicable Laws.
(vii) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws.
(viii) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ix) Based upon reliance on certain SEC "no-action" letters, as of the closing, the Partnership need not register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 1 contract
Samples: Management Agreement (Morgan Stanley Spectrum Currency Lp)
Closing Certificates and Opinions. (1a) The Trading Advisor shall, shall at the Partnership's first Monthly Closing following the effective date of the Registration Statement Initial Closing, and at any monthly closing thereafter at the reasonable request of the General Partner (except with respect to the information required by Section 17(a)(iii) hereof, which shall be provided at any Monthly Closing (as defined in the Prospectussuch monthly closing), provide the following:
(ai) To DWRMS&Co., the General Partner and the Partnership a certificate, dated the date of any such closing and in form and substance reasonably satisfactory to such parties, to the effect that:
(iA) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete in all material respects on and as of the date of the closing, as if made on the date of the closing.
(iiB) The Trading Advisor has performed in all material respects all of its obligations and satisfied in all material respects all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(bii) To DWRMS&Co., the General Partner and the Partnership an opinion of counsel to the Trading Advisor, Advisor in form and substance satisfactory to such parties, to the effect thatfollowing effect, or as otherwise agreed to by the parties hereto:
(iA) The Trading Advisor is a corporation duly organized and validly existing under the laws of the state jurisdiction of its incorporation and is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiB) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, self-regulatory and commodity exchange and clearing association licenses, registrations, and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has made all filings necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigationsinvestigation, none of such licenses, memberships or registrations have been rescinded, revoked or suspended.
(iiiC) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a legal, valid and binding agreement of the Trading Advisor, enforceable against the Trading Advisor enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, receivership or similar other laws at the time in effect relating to or affecting the enforceability generally of creditors' rights of creditors generally, and by to general principles of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability that the enforcement of the indemnification, exculpation, rights with respect to indemnification and contribution obligations and provisions contained in this Agreement may be limited by applicable law or considerations of public policy and the enforcement of specific terms or remedies may be unavailablepolicy.
(ivD) Based upon due inquiry of certain officers of the Trading Advisor, to the best of To such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either pending or threatened or pending in any court or before or by any court, governmental body, administrative agency, panel or administrative body self-regulatory organization, nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(vE) The execution and delivery by the Trading Advisor of this Agreement the incurrence of the obligations herein set forth Agreement, and the consummation performance by the Trading Advisor of the transactions contemplated herein its obligations hereunder and in the Prospectus (a) will not require any governmental approval to be in contravention of any of obtained on the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers part of the Trading Advisor, except those that have been obtained and, to the best of such counsel's knowledge, are in effect, (b) will not constitute result in a violation of any provision of the Trading Advisor's organizational documents or any applicable laws applicable to the Trading Advisor, and (c) will not breach or result in a violation of, or default under, (i) any indenture, mortgage, deed of trust, agreement or a violation of any instrument or agreement known to such counsel to which the Trading Advisor or any of its subsidiaries is a party or by which the Trading Advisor or any of its subsidiaries is bound and will not violate or to which any orderof the property or assets of the Trading Advisor or any of its subsidiaries is subject, lawor (ii) any judgment, rule decree or regulation order known to such counsel that is applicable to the Trading Advisor of and, pursuant to any court or applicable laws, is issued by any governmental body or administrative agency or panel or self-regulatory organization authority having jurisdiction over the Trading AdvisorAdvisor or its properties.
(viF) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(viiG) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading; provided, however, that such counsel need express no opinion or belief as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus, except that such counsel shall opine, without rendering any opinion as to the accuracy of the information in such tables, that the actual performance tables of the Trading Advisor set forth in the Prospectus comply as to form in all material respects with applicable CFTC rules and all CFTC and NFA interpretations thereof. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2iii) To MS&Co., the General Partner and the Partnership, a report dated the date of the closing that shall present, for the period from the date after the last day covered by the historical performance capsules in the Prospectus to the latest practicable day before closing, updated performance information, and that shall certify that such information is, to the best of such Trading Advisor's knowledge, accurate in all material respects.
(b) The General Partner shall, at the Partnership's first Monthly Closing following Initial Closing, and at any monthly closing thereafter upon the effective date reasonable request of the Registration StatementTrading Advisor, provide the following:
(ai) To the Trading Advisor a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
(iA) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.;
(iiB) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASDFINRA, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iiiC) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(bii) To the parties hereto, an opinion of Cadwalader, Xxxxxxxxxx Wickersham & XxxxTaft LLP, counsel to the General Partner and the PartnershipPartnexxxxx, shall deliver its opinion to the parties hereto, in form xx xorm and substance satisfactory to the parties heretosuch parties, to the effect that:
(iA) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing and in good standing under the laws of the State of Delaware with full limited partnership power to enter into and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate certificate from the New York Secretary of Authority as contemplated under State certifying that the Partnership filed an application for authority pursuant to Section 121-902 of the New York Revised Limited Partnership Act and that, so far as shown by the records of the New York Department of State, the Partnership is qualified authorized to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and ProspectusState of New York.
(iiB) The General Partner is duly organized and a corporation validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and Prospectus. The General Partner has full with corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement. The General Partner is duly qualified as a foreign corporation to do business in the State of New York. To such counsel's knowledge, the General Partner does not conduct business in any jurisdiction other than the State of New York.
(iiiC) The General Partner and Partner, each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and New York state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement and to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which which, either individually or in the aggregate, would not be reasonably likely to have a material adverse effect on the ability of the Partnership or the General Partner to conduct their ability to act business as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(ivD) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, Partnership and constitutes a legal, valid and binding agreement of the General Partner and the Partnership, enforceable against the General Partner and the Partnership, in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, receivership or similar other laws at the time in effect relating to or affecting the enforceability generally of creditors' rights of creditors generally, and by to general principals principles of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability that the enforcement of indemnification, exculpation rights with respect to indemnification and contribution obligations and provisions contained in such agreements relating to submission to jurisdiction, venue or service of process, may be limited by applicable law or considerations of public policy.
(vE) The execution and delivery by each of the General Partner and the Partnership of this Agreement and the offer and sale performance by each of the Units by General Partner and the Partnership and the incurrence of the its respective obligations herein set forth and the consummation of the transactions contemplated herein hereunder and in the Prospectus will (a) do not require any Governmental Approval to be obtained on the part of the General Partner or the Partnership, except those that have been obtained and, to such counsel's knowledge, are in contravention effect, (b) do not result in a violation of any provision of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, Partnership or the Limited Partnership Agreement and, of the Partnership or any Applicable Laws applicable to the best of such counsel's knowledge based upon due inquiry of certain officers of General Partner and the General PartnerPartnership, will and (c) do not constitute breach or result in a breach violation of, or default under, or a violation (i) any of any agreement or instrument the agreements listed on the Registration Statement which are known to such counsel by which the General Partner counsel's knowledge to be effective, or the Partnership is bound and will not violate (ii) any judgment, decree or order known to such counsel or any law, rule or regulation which is applicable to the General Partner or the Partnership of and, pursuant to any courtApplicable Laws, governmental body, administrative agency, panel or self-regulatory organization is issued by any Governmental Authority having jurisdiction over it or its properties. "Applicable Laws" means those laws, rules and regulations of the General Partner or State of New York and of the Partnership.
(vi) To United States of America which, in such counsel's knowledgeexperience, based upon due inquiry of certain officers are normally applicable to transactions of the General Partnertype contemplated by this Agreement. "Governmental Authorities" means executive, except as disclosed in the Prospectuslegislative, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, governmental bodyjudicial, administrative agency, panel or self-regulatory organization, nor have there been any such suits or proceedings within the five years preceding the date bodies of the Prospectus, to which the General Partner State of New York or the Partnership is United States of America. "Government Approval" means any consent, approval, license, authorization or was a partyvalidation of, or filing, recording or registration with any Governmental Authority pursuant to which any of their assets is or was subject, which would be material to an investor's decision to invest in the Partnership or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of businessApplicable Laws.
(vii) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws.
(viii) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ix) Based upon reliance on certain SEC "no-action" letters, as of the closing, the Partnership need not register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 1 contract
Samples: Management Agreement (Morgan Stanley Spectrum Technical Lp)
Closing Certificates and Opinions. (1a) The Trading Advisor shall, at the Partnership's first Monthly Closing following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)Closing, provide the following:
(ai) To DWR, the General Partner and the Partnership a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(iA) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(iiB) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(bii) To DWR, the General Partner and the Partnership an opinion of counsel to the Trading Advisor, in form and substance satisfactory to such parties, to the effect that:
(iA) The Trading Advisor is a corporation duly organized and validly existing under the laws of the state of its incorporation Delaware and is qualified to do business and in good standing in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiB) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, and self-regulatory and commodity exchange and clearing association licenses, registrations, registrations and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has received or made all filings and registrations necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigationsinvestigation, none of such such, licenses, memberships or registrations have been rescinded, revoked or suspended.
(iiiC) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a valid and binding agreement of the Trading Advisor enforceable in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principles principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of the indemnification, exculpation, and contribution provisions contained in this Agreement such agreements may be limited by applicable law or public policy and the enforcement of specific terms or remedies may be unavailablepolicy.
(ivD) Based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either pending or threatened or pending in any court or before or by any court, governmental body, administrative agency, panel or administrative body self- regulatory organization, nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(vE) The execution and delivery of this Agreement Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of any of the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, will not constitute a breach of, or default under, or a violation of any instrument or agreement known to such counsel by which the Trading Advisor is bound and will not violate any order, law, rule or regulation applicable to the Trading Advisor of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Advisor.
(viF) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(viiG) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading; provided, however, that such counsel need express no opinion or belief as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus, except that such counsel shall opine, without rendering any opinion as to the accuracy of the information in such tables, that the actual performance tables of the Trading Advisor set forth in the Prospectus comply as to form in all material respects with applicable CFTC rules and all CFTC and NFA interpretations thereof, except as disclosed in the Prospectus. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2iii) To DWR, the General Partner and the Partnership, a report dated the date of the closing which shall present, for the period from the date after the last day covered by the historical performance capsules in the Prospectus to the latest practicable day before closing, updated performance information which shall certify that such figures are, to the best of such Trading Advisor's knowledge, accurate in all material respects.
(b) The General Partner shall, at the Partnership's first Monthly Closing following the effective date if a similar request is made of the Registration StatementTrading Advisor at any Monthly Closing, provide the following:
(ai) To the Trading Advisor a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
(iA) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.
(iiB) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order -19- preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iiiC) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(bii) To the parties hereto, an opinion of Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the General Partner and the Partnership, shall deliver its opinion to the parties hereto, in form and substance satisfactory to the parties heretosuch parties, to the effect that:
(iA) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership of the Partnership, the Limited Partnership Agreement of the Partnership and the DRULPA and is validly existing under the laws of the State of Delaware with full partnership power and authority to conduct the business in which it proposes to engage engages as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate of Authority as contemplated under the New York Revised Limited Partnership Act and is qualified to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and Prospectus.
(iiB) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and ProspectusProspectus or under this Agreement. The General Partner has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiiC) The General Partner and Partner, each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which would not have a material adverse effect on their the ability of the Partnership or the General Partner to act as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(ivD) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, and constitutes a valid and binding agreement of the General Partner and the Partnership, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of indemnification, exculpation and contribution provisions contained in such agreements this Agreement may be limited by applicable law or public policy.
(vE) The execution and delivery of this Agreement and the offer and sale of the Units by the Partnership and the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership of the Partnership, or and the Limited Partnership Agreement of the Partnership and, to the best of such counsel's knowledge based upon due inquiry of certain officers of the General Partner, none of the foregoing will not constitute a breach of, or default under, or a violation of any agreement or instrument known to such counsel by which the General Partner or the Partnership is bound and will not or violate any order known to such counsel or any law, rule or regulation applicable to the General Partner or the Partnership of any court, governmental body, administrative agency, panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership.
(viF) To such counsel's knowledge, based upon due inquiry of certain officers of the General Partner, except as disclosed in the Prospectus, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, court governmental body, administrative agency, panel or self-self regulatory organization, nor have there been any such actions, suits or proceedings within the five years preceding the date of the Prospectus, to which Prospectus against the General Partner or the Partnership is or was a party, or which are required to which any of their assets is or was subject, which would be material to an investor's decision to invest disclosed in the Partnership Registration Statement or which might reasonably be expected to result in a materially adverse change Prospectus that are not disclosed in the condition, financial or otherwise, business or prospects of Registration Statement and the General Partner, or the Partnership, whether or not arising in the ordinary course of businessProspectus.
(viiG) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws.
(viiiH) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. .
(I) Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx such counsel need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ixJ) Based upon reliance on certain SEC "no-action" letters, as of the closing, the performance of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Partnership need not to register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 1 contract
Samples: Management Agreement (Witter Dean Spectrum Strategic Lp)
Closing Certificates and Opinions. (1a) The Trading Advisor shall, at the Partnership's first Monthly Closing following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)monthly closing, provide the following:
(ai) To DWR, the General Partner and the Partnership a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(iA) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(iiB) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(bii) To DWR, the General Partner and the Partnership an opinion of counsel to the Trading Advisor, in form and substance satisfactory to such parties, to the effect that:
(iA) The Trading Advisor is a corporation duly organized and validly existing under the laws of the state State of its incorporation Delaware and is qualified to do business and in good standing in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiB) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, and self-regulatory and commodity exchange and clearing association licenses, registrations, registrations and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has received or made all filings and registrations necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigationsinvestigation, none of such such, licenses, memberships or registrations have been rescinded, revoked or suspended.
(iiiC) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a valid and binding agreement of the Trading Advisor enforceable in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of the indemnification, exculpation, and contribution provisions contained in this Agreement may be limited by applicable law or public policy and the enforcement of specific terms or remedies may be unavailable.
(ivD) Based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either pending or threatened or pending in any court or before or by any court, governmental body, administrative agency, panel or administrative body self- regulatory organization, nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(vE) The execution and delivery of this Agreement Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of any of the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, will not constitute a breach of, or default under, or a violation of any instrument or agreement known to such counsel by which the Trading Advisor is bound and will not violate any order, law, rule or regulation applicable to the Trading Advisor of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Advisor.
(viF) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(viiG) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading; provided, however, that such counsel need express no opinion or belief as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus, except that such counsel shall opine, without rendering any opinion as to the accuracy of the information in such tables, that the actual performance tables of the Trading Advisor set forth in the Prospectus comply as to form in all material respects with applicable CFTC rules and all CFTC and NFA interpretations thereof, except as disclosed in the Prospectus or as otherwise permitted by the CFTC staff. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2iii) To DWR, the General Partner and the Partnership, a report dated the date of the closing which shall present, for the period from the date after the last day covered by the historical performance capsules in the Prospectus to the latest practicable day before closing, updated performance information which shall certify that such figures are, to the best of such Trading Advisor's knowledge, accurate in all material respects.
(b) The General Partner shall, at the Partnership's first Monthly Closing following the effective date if a similar request is made of the Registration StatementTrading Advisor at any monthly closing, provide the following:
(ai) To the Trading Advisor a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
(iA) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.
(iiB) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iiiC) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(bii) Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the General Partner and the Partnership, shall deliver its opinion to the parties hereto, hereto in form and substance satisfactory to the parties hereto, to the effect that:
(iA) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing and in good standing under the laws of the State of Delaware with full limited partnership power to enter into and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate of Authority as contemplated under the New York Revised Limited Partnership Act and is qualified to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and Prospectus.
(iiB) The General Partner is duly organized and a corporation validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and Prospectus. The General Partner has full with corporate power and authority to conduct its business as described in the Registration Statement and Prospectus enter into and to perform its obligations under this Agreement.
(iii) The General Partner and each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which would not have a material adverse effect on their ability to act as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(ivC) This Agreement has been duly authorized, executed and delivered by or the General Partner on behalf of the General Partner and the Partnership, and constitutes a legal, valid and binding agreement of the General Partner and the Partnership, enforceable against the General Partner and the Partnership in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, receivership or similar other laws at the time in effect relating to or affecting the enforceability creditors' rights generally of rights of creditors , and by to, general principals of equity (regardless of whether such enforceability is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability that the enforcement of indemnification, exculpation rights with respect to indemnification and contribution obligations and provisions contained in such agreements relating to submission to jurisdiction, venue, or service of process, may be limited by applicable law or considerations of public policy.
(vD) The execution and delivery by the General Partner on behalf of the Partnership of this Agreement Agreement, and the offer performance by the General Partner and sale the Partnership of their respective obligations hereunder (a) do not require any governmental approval to be obtained on the part of the Units by the Partnership General Partner and the incurrence Partnership, except those that have been obtained and, to such counsel's knowledge , are in effect, (b) do not result in a violation of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention any provision of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership of the Partnership, or and the Limited Partnership Agreement and, of the Partnership or any applicable laws applicable to the best of such counsel's knowledge based upon due inquiry of certain officers of General Partner and the General PartnerPartnership, will and (c) do not constitute breach or result in a breach violation of, or default underunder any judgment, decree or a violation of any agreement or instrument order known to such counsel which is applicable to the General Partner and the Partnership and, pursuant to any applicable laws, is issued by which any governmental authority having jurisdiction over the General Partner and the Partnership or their properties.
(E) To such counsel's knowledge, there is no legal or governmental action, investigation or proceeding pending or threatened against the General Partner or the Partnership is bound (a) asserting the invalidity of this Agreement, (b) seeking to prevent the consummation of any of the transactions provided for in this Agreement, or (c) which would materially and will not violate any order known adversely affect the ability of the General Partner or the Partnership to such counsel perform their obligations under, or any law, rule the validity or regulation applicable enforceability (with respect to the General Partner or the Partnership Partnership) of, this Agreement. For purposes of the opinion set forth in this paragraph, such counsel need not regard any courtlegal or governmental actions, governmental bodyinvestigations or proceedings to be "threatened" unless the potential litigant or Governmental Authority has communicated in writing to the General Partner a present intention to initiate such actions, administrative agency, panel investigations or self-regulatory organization having jurisdiction over proceedings against the General Partner or the Partnership.
(vi) To such counsel's knowledge, based upon due inquiry of certain officers of the General Partner, except as disclosed in the Prospectus, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, governmental body, administrative agency, panel or self-regulatory organization, nor have there been any such suits or proceedings within the five years preceding the date of the Prospectus, to which the General Partner or the Partnership is or was a party, or to which any of their assets is or was subject, which would be material to an investor's decision to invest in the Partnership or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of business.
(viiF) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws.
(viiiG) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. .
(H) Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx such counsel need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ixI) Based upon reliance on certain SEC "no-action" letters, as of the closing, the Partnership need not register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 1 contract
Samples: Management Agreement (Morgan Stanley Dean Witter Spectrum Commodity L P)
Closing Certificates and Opinions. (1a) The Trading Advisor shall, at the Partnership's first Monthly Initial Closing following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)monthly closing thereafter, provide the following:
(ai) To DWRMS&Co., the General Partner and the Partnership a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(iA) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(iiB) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(bii) To DWRMS&Co., the General Partner and the Partnership an opinion of counsel to the Trading Advisor, Advisor in form and substance satisfactory to such parties, to the effect that:
(iA) The Trading Advisor is a corporation duly organized and validly existing under the laws of the state jurisdiction of its incorporation and is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiB) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, self-regulatory and commodity exchange and clearing association licenses, registrations, and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has made all filings necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigationsinvestigation, none of such licenses, memberships or registrations have been rescinded, revoked or suspended.
(iiiC) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a legal, valid and binding agreement of the Trading Advisor, enforceable against the Trading Advisor enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, receivership or similar other laws at the time in effect relating to or affecting the enforceability generally of creditors' rights of creditors generally, and by to general principles of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability that the enforcement of the indemnification, exculpation, rights with respect to indemnification and contribution obligations and provisions contained in this Agreement may be limited by applicable law or considerations of public policy and the enforcement of specific terms or remedies may be unavailablepolicy.
(ivD) Based upon due inquiry of certain officers of the Trading Advisor, to the best of To such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either pending or threatened or pending in any court or before or by any court, governmental body, administrative agency, panel or administrative body self-regulatory organization, nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(vE) The execution and delivery by the Trading Advisor of this Agreement the incurrence of the obligations herein set forth Agreement, and the consummation performance by the Trading Advisor of the transactions contemplated herein its obligations hereunder and in the Prospectus (a) will not require any governmental approval to be in contravention of any of obtained on the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers part of the Trading Advisor, except those that have been obtained and, to the best of such counsel's knowledge, are in effect, (b) will not constitute result in a violation of any provision of the Trading Advisor's organizational documents or any applicable laws applicable to the Trading Advisor, and (c) will not breach or result in a violation of, or default under, (i) any indenture, mortgage, deed of trust, agreement or a violation of any instrument or agreement known to such counsel to which the Trading Advisor or any of its subsidiaries is a party or by which the Trading Advisor or any of its subsidiaries is bound and will not violate or to which any orderof the property or assets of the Trading Advisor or any of its subsidiaries is subject, lawor (ii) any judgment, rule decree or regulation order known to such counsel that is applicable to the Trading Advisor of and, pursuant to any court or applicable laws, is issued by any governmental body or administrative agency or panel or self-regulatory organization authority having jurisdiction over the Trading AdvisorAdvisor or its properties.
(viF) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(viiG) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading; provided, however, that such counsel need express no opinion or belief as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus, except that such counsel shall opine, without rendering any opinion as to the accuracy of the information in such tables, that the actual performance tables of the Trading Advisor set forth in the Prospectus comply as to form in all material respects with applicable CFTC rules and all CFTC and NFA interpretations thereof. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2iii) To MS&Co., the General Partner and the Partnership, a report dated the date of the closing that shall present, for the period from the date after the last day covered by the historical performance capsules in the Prospectus to the latest practicable day before closing, updated performance information, and that shall certify that such information is, to the best of such Trading Advisor's knowledge, accurate in all material respects.
(b) The General Partner shall, at the Partnership's first Monthly Closing following the effective date of the Registration StatementInitial Closing, provide the following:
(ai) To the Trading Advisor a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
(iA) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.;
(iiB) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iiiC) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(bii) To the parties hereto, an opinion of Cadwalader, Xxxxxxxxxx Wickersham & XxxxTaft LLP, counsel to the General Partner and the Partnership, shall deliver its opinion to the parties heretoXxxxxxxxxxp, in form and forx xxd substance satisfactory to the parties heretosuch parties, to the effect that:
(iA) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing and in good standing under the laws of the State of Delaware with full limited partnership power to enter into and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate certificate from the New York Secretary of Authority as contemplated under State certifying that the Partnership filed an application for authority pursuant to Section 121-902 of the New York Revised Limited Partnership Act and that, so far as shown by the records of the New York Department of State, the Partnership is qualified authorized to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and ProspectusState of New York.
(iiB) The General Partner is duly organized and a corporation validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and Prospectus. The General Partner has full with corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement. The General Partner is duly qualified as a foreign corporation to do business in the State of New York. To such counsel's knowledge, the General Partner does not conduct business in any jurisdiction other than the State of New York.
(iiiC) The General Partner and Partner, each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and New York state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement and to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which which, either individually or in the aggregate, would not be reasonably likely to have a material adverse effect on the ability of the Partnership or the General Partner to conduct their ability to act business as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(ivD) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, Partnership and constitutes a legal, valid and binding agreement of the General Partner and the Partnership, enforceable against the General Partner and the Partnership, in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, receivership or similar other laws at the time in effect relating to or affecting the enforceability generally of creditors' rights of creditors generally, and by to general principals principles of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability that the enforcement of indemnification, exculpation rights with respect to indemnification and contribution obligations and provisions contained in such agreements relating to submission to jurisdiction, venue or service of process, may be limited by applicable law or considerations of public policy.
(vE) The execution and delivery by each of the General Partner and the Partnership of this Agreement and the offer and sale performance by each of the Units by General Partner and the Partnership and the incurrence of the its respective obligations herein set forth and the consummation of the transactions contemplated herein hereunder and in the Prospectus will (a) do not require any Governmental Approval to be obtained on the part of the General Partner or the Partnership, except those that have been obtained and, to such counsel's knowledge, are in contravention effect, (b) do not result in a violation of any provision of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, Partnership or the Limited Partnership Agreement and, of the Partnership or any Applicable Laws applicable to the best of such counsel's knowledge based upon due inquiry of certain officers of General Partner and the General PartnerPartnership, will and (c) do not constitute breach or result in a breach violation of, or default under, or a violation (i) any of any agreement or instrument the agreements listed on the Registration Statement which are known to such counsel by which the General Partner counsel's knowledge to be effective, or the Partnership is bound and will not violate (ii) any judgment, decree or order known to such counsel or any law, rule or regulation which is applicable to the General Partner or the Partnership of and, pursuant to any courtApplicable Laws, governmental body, administrative agency, panel or self-regulatory organization is issued by any Governmental Authority having jurisdiction over it or its properties. "Applicable Laws" means those laws, rules and regulations of the General Partner or State of New York and of the Partnership.
(vi) To United States of America which, in such counsel's knowledgeexperience, based upon due inquiry of certain officers are normally applicable to transactions of the General Partnertype contemplated by this Agreement. "Governmental Authorities" means executive, except as disclosed in the Prospectuslegislative, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, governmental bodyjudicial, administrative agency, panel or self-regulatory organization, nor have there been any such suits or proceedings within the five years preceding the date bodies of the Prospectus, to which the General Partner State of New York or the Partnership is United States of America. "Government Approval" means any consent, approval, license, authorization or was a partyvalidation of, or filing, recording or registration with any Governmental Authority pursuant to which any of their assets is or was subject, which would be material to an investor's decision to invest in the Partnership or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of businessApplicable Laws.
(vii) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws.
(viii) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ix) Based upon reliance on certain SEC "no-action" letters, as of the closing, the Partnership need not register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 1 contract
Samples: Management Agreement (Morgan Stanley Spectrum Strategic Lp)
Closing Certificates and Opinions. (1a) The Trading Advisor shall, at the Partnership's first Monthly Closing following the effective date of the Registration Statement and shall at the request of the General Partner at any Monthly Closing (as defined in the Prospectus), provide the following:
(ai) To DWR, the General Partner Partner, and the Partnership a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(iA) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(iiB) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(bii) To DWR, the General Partner Partner, and the Partnership an opinion of counsel to the Trading Advisor, in form and substance satisfactory to such parties, to the effect that:
(iA) The Trading Advisor is a corporation limited partnership duly organized formed and validly existing under the laws of the state State of its incorporation Delaware and is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiB) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, self-regulatory and commodity exchange and clearing association licenses, registrations, and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has made all filings necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigations, none of such licenses, memberships or registrations have been rescinded, revoked or suspended.
10.01 19
(iiiC) This Agreement has been duly authorized, executed executed, and delivered by or on behalf of the Trading Advisor and constitutes a valid legal, valid, and binding agreement of the Trading Advisor enforceable against the Trading Advisor in accordance with its terms, subject only to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium receivership or similar other laws at the time in effect relating to or affecting the enforceability generally of creditors' rights of creditors generally, and by to general principles of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability that the enforcement of the indemnification, exculpation, rights with respect to indemnification and contribution obligations and provisions contained in this Agreement may be limited by applicable law or considerations of public policy and the enforcement of specific terms or remedies may be unavailablepolicy.
(ivD) Based upon due inquiry of certain officers of the Trading Advisor, to the best of To such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either threatened or pending in any court or before or by any governmental or administrative body nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(vE) The execution and delivery by the Trading Advisor of this Agreement Agreement, and the incurrence performance by the Trading Advisor of its obligations herein (a) will not require any governmental approval to be obtained on the part of the obligations herein set forth and the consummation of the transactions contemplated herein and Trading Advisor, except those that have been obtained and, to such counsel's knowledge, are in the Prospectus effect, (b) will not be result in contravention a violation of any of the provisions of the certificate of incorporation limited partnership or bylaws limited partnership agreement of the Trading Advisor and, based upon due inquiry of certain officers of or any applicable laws applicable to the Trading Advisor, to the best of such counsel's knowledge, and (c) will not constitute breach or result in a breach violation of, or default under, or a violation of (i) any instrument or agreement known to such counsel by which the Trading Advisor is bound and will not violate or to which any orderof the property or assets of the Trading Advisor is subject or (ii) any judgment, law, rule decree or regulation order known to such counsel that is applicable to the Trading Advisor of and, pursuant to any court or applicable laws, is issued by any governmental body or administrative agency or panel or self-regulatory organization authority having jurisdiction over the Trading AdvisorAdvisor or its properties.
(viF) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(viiG) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor Advisor
10.01 20 or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading; provided, however, that such counsel need express no opinion or belief as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus, except that such counsel shall opine, without rendering any opinion as to the accuracy of the information in such tables, that the actual performance tables of the Trading Advisor set forth in the Prospectus comply as to form in all material respects with applicable CFTC rules and all CFTC and NFA interpretations thereof, except as disclosed in the Prospectus or as otherwise permitted by the CFTC staff. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2iii) To DWR, the General Partner and the Partnership, a report dated the date of the closing that shall present, for the period from the date after the last day covered by the historical performance records in the Prospectus to the latest practicable day before closing, figures that shall be a continuation of such historical performance records and that shall certify that such figures are, to the best of such Trading Advisor's knowledge, accurate in all material respects.
(b) The General Partner shall, shall at the Partnership's first Monthly Closing following the effective date request of the Registration Statement, Trading Advisor provide the following:
(ai) To the Trading Advisor a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
(iA) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.
(iiB) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iiiC) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(bii) Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the General Partner and the Partnership, shall deliver its opinion to the parties hereto, in form and substance satisfactory to the parties hereto, to the effect that:
(iA) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing under the laws of the State of Delaware with full partnership power and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate of Authority as contemplated under the New York Revised Limited Partnership Act and is qualified to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and ProspectusYork.
(iiB) The General Partner is duly organized and a corporation validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and Prospectus. The General Partner has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiiC) The General Partner and Partner, each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement to and conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which would not have a material adverse effect on their the ability of the Partnership or the General Partner to act as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(ivD) This Agreement has been duly authorized, executed executed, and delivered by or on behalf of the General Partner and the Partnership, and constitutes a valid legal, valid, and binding agreement of the General Partner and the Partnership, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium receivership or similar other laws at the time in effect relating to or affecting the enforceability generally of creditors' rights of creditors generally, and by to general principals of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability enforcement of indemnification, exculpation rights with respect to indemnification and contribution obligations and provisions contained in such agreements may be limited by applicable law or considerations of public policy.
(vE) The execution and delivery of this Agreement and the offer and sale of the Units by the Partnership and the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, or the Limited Partnership Agreement and, to the best of such counsel's knowledge based upon due inquiry of certain officers of the General Partner, will not constitute a breach of, or default under, or a violation of any agreement or instrument known to such counsel by which the General Partner or the Partnership is bound and will not violate any order known to such counsel or any law, rule or regulation applicable to the General Partner or the Partnership of any court, governmental body, administrative agency, panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership.
(vi) To such counsel's knowledge, based upon due inquiry of certain officers of the General Partner, except as disclosed in the Prospectus, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, governmental body, administrative agency, panel or self-regulatory organization, nor have there been any such suits or proceedings within the five years preceding the date of the Prospectus, to which the General Partner or the Partnership is or was a party, or to which any of their assets is or was subject, which would be material to an investor's decision to invest in the Partnership or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of business.
(vii) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws.
(viii) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ix) Based upon reliance on certain SEC "no-action" letters, as of the closing, the Partnership need not register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuinethe Partnership of this Agreement, and that a Subscription the performance by the General Partner and Exchange Agreement and Power the Partnership of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.their obligations herein (a) will not require any governmental
Appears in 1 contract
Samples: Management Agreement (Morgan Stanley Dean Witter Spectrum Select Lp)
Closing Certificates and Opinions. (1) The Trading Advisor shall, at the Partnership's first Monthly Closing (as defined in the Prospectus), following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)Closing, provide the following:
(a) To DWR, the General Partner and the Partnership a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(i) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(ii) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(b) To DWR, the General Partner and the Partnership an opinion of counsel to the Trading Advisor, in form and substance satisfactory to such parties, to the effect that:
(i) The Trading Advisor is a corporation limited liability company duly organized and validly existing under the laws of the state of its incorporation Ireland and is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(ii) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, self-regulatory and commodity exchange and clearing association licenses, registrations, and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has made all filings necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigations, none of such licenses, memberships or registrations have been rescinded, revoked or suspended.
(iii) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a valid and binding agreement of the Trading Advisor enforceable in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of the indemnification, exculpation, and contribution provisions contained in this Agreement may be limited by applicable law or public policy and the enforcement of specific terms or remedies may be unavailable.
(iv) Based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either threatened or pending in any court or before or by any governmental or administrative body nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(v) The execution and delivery of this Agreement Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of any of the provisions of the certificate Memorandum or Articles of incorporation or bylaws Association of the Trading Advisor and, based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, will not constitute a breach of, or default under, or a violation of any instrument or agreement known to such counsel by which the Trading Advisor is bound and will not violate any order, law, rule or regulation applicable to the Trading Advisor of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Advisor.
(vi) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(vii) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading; PROVIDED, HOWEVER, that such counsel need express no opinion or belief as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus, except that such counsel shall opine, without rendering any opinion as to the accuracy of the information in such tables, that the actual performance tables of the Trading Advisor set forth in the Prospectus comply as to form in all material respects with applicable CFTC rules and all CFTC and NFA interpretations thereof, except as disclosed in the Prospectus or as otherwise permitted by the CFTC staff, except that the Trading Advisor calculates all performance data by including "notional equity" in determining the account size of partially funded accounts. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(c) To DWR, the General Partner and the Partnership, a report dated the date of the closing which shall present, for the period from the date after the last day covered by the historical performance records in the Prospectus to the latest practicable day before closing, figures which shall be a continuation of such historical performance records and which shall certify that such figures are, to the best of such Trading Advisor's knowledge, accurate in all material respects.
(2) The General Partner shall, at the Partnership's first Monthly Closing following the effective date of the Registration Statement, provide the following:
(a) To the Trading Advisor a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
(i) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iii) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(b) Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the General Partner and the Partnership, shall deliver its opinion to the parties hereto, in form and substance satisfactory to the parties hereto, to the effect that:
(i) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing under the laws of the State of Delaware with full partnership power and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate of Authority as contemplated under the New York Revised Limited Partnership Act and is qualified to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and Prospectus.
(ii) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and Prospectus. The General Partner has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iii) The General Partner and Partner, each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which would not have a material adverse effect on their the ability of the Partnership or the General Partner to act as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(iv) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, and constitutes a valid and binding agreement of the General Partner and the Partnership, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of indemnification, exculpation and contribution provisions contained in such agreements may be limited by applicable law or public policy.
(v) The execution and delivery of this Agreement and the offer and sale of the Units by the Partnership and the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, or the Limited Partnership Agreement and, to the best of such counsel's knowledge based upon due inquiry of certain officers of the General Partner, will not constitute a breach of, or default under, or a violation of any agreement or instrument known to such counsel by which the General Partner or the Partnership is bound and will not violate any order known to such counsel or any law, rule or regulation applicable to the General Partner or the Partnership of any court, governmental body, administrative agency, panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership.
(vi) To such counsel's knowledge, based upon due inquiry of certain officers of the General Partner, except as disclosed in the Prospectus, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, governmental body, administrative agency, panel or self-regulatory organization, nor have there been any such actions, suits or proceedings within the five years preceding the date of the Prospectus, to which Prospectus against the General Partner or the Partnership is or was a party, or to which any of their assets is or was subjectPartnership, which would are required to be material to an investor's decision to invest disclosed in the Partnership Registration Statement or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of businessProspectus.
(vii) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws.
(viii) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ix) Based upon reliance on certain SEC "no-action" letters, as of the closing, the Partnership need not register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 1 contract
Samples: Management Agreement (Witter Dean Spectrum Strategic Lp)
Closing Certificates and Opinions. (1a) The Trading Advisor shall, at the Partnership's first Monthly Initial Closing following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)monthly closing thereafter, provide the following:
(ai) To DWRMS&Co., the General Partner and the Partnership a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(iA) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(iiB) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(bii) To DWRMS&Co., the General Partner and the Partnership an opinion of counsel to the Trading Advisor, Advisor in form and substance satisfactory to such parties, to the effect that:
(iA) The Trading Advisor is a corporation duly organized and validly existing under the laws of the state jurisdiction of its incorporation and is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiB) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, self-regulatory and commodity exchange and clearing association licenses, registrations, and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has made all filings necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigationsinvestigation, none of such licenses, memberships or registrations have been rescinded, revoked or suspended.
(iiiC) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a legal, valid and binding agreement of the Trading Advisor, enforceable against the Trading Advisor enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, receivership or similar other laws at the time in effect relating to or affecting the enforceability generally of creditors' rights of creditors generally, and by to general principles of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability that the enforcement of the indemnification, exculpation, rights with respect to indemnification and contribution obligations and provisions contained in this Agreement may be limited by applicable law or considerations of public policy and the enforcement of specific terms or remedies may be unavailablepolicy.
(ivD) Based upon due inquiry of certain officers of the Trading Advisor, to the best of To such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either pending or threatened or pending in any court or before or by any court, governmental body, administrative agency, panel or administrative body self-regulatory organization, nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(vE) The execution and delivery by the Trading Advisor of this Agreement the incurrence of the obligations herein set forth Agreement, and the consummation performance by the Trading Advisor of the transactions contemplated herein its obligations hereunder and in the Prospectus (a) will not require any governmental approval to be in contravention of any of obtained on the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers part of the Trading Advisor, except those that have been obtained and, to the best of such counsel's knowledge, are in effect, (b) will not constitute result in a violation of any provision of the Trading Advisor's organizational documents or any applicable laws applicable to the Trading Advisor, and (c) will not breach or result in a violation of, or default under, (i) any indenture, mortgage, deed of trust, agreement or a violation of any instrument or agreement known to such counsel to which the Trading Advisor or any of its subsidiaries is a party or by which the Trading Advisor or any of its subsidiaries is bound and will not violate or to which any orderof the property or assets of the Trading Advisor or any of its subsidiaries is subject, lawor (ii) any judgment, rule decree or regulation order known to such counsel that is applicable to the Trading Advisor of and, pursuant to any court or applicable laws, is issued by any governmental body or administrative agency or panel or self-regulatory organization authority having jurisdiction over the Trading AdvisorAdvisor or its properties.
(viF) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(viiG) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading; provided, however, that such counsel need express no opinion or belief as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus, except that such counsel shall opine, without rendering any opinion as to the accuracy of the information in such tables, that the actual performance tables of the Trading Advisor set forth in the Prospectus comply as to form in all material respects with applicable CFTC rules and all CFTC and NFA interpretations thereof. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2iii) To MS&Co., the General Partner and the Partnership, a report dated the date of the closing that shall present, for the period from the date after the last day covered by the historical performance capsules in the Prospectus to the latest practicable day before closing, updated performance information, and which shall certify that such information is, to the best of such Trading Advisor's knowledge, accurate in all material respects.
(b) The General Partner shall, at the Partnership's first Monthly Closing following the effective date of the Registration StatementInitial Closing, provide the following:
(ai) To the Trading Advisor a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
(iA) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.
(iiB) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iiiC) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(bii) To the parties hereto, an opinion of Cadwalader, Xxxxxxxxxx Wickersham & XxxxTaft LLP, counsel to the General Partner and the PartnershipPartnexxxxx, shall deliver its opinion to the parties hereto, in form xx xorm and substance satisfactory to the parties heretosuch parties, to the effect that:
(iA) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing and in good standing under the laws of the State of Delaware with full limited partnership power to enter into and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate certificate from the New York Secretary of Authority as contemplated under State certifying that the Partnership filed an application for authority pursuant to Section 121-902 of the New York Revised Limited Partnership Act and that, so far as shown by the records of the New York Department of State, the Partnership is qualified authorized to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and ProspectusState of New York.
(iiB) The General Partner is duly organized and a corporation validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and Prospectus. The General Partner has full with corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement. The General Partner is duly qualified as a foreign corporation to do business in the State of New York. To such counsel's knowledge, the General Partner does not conduct business in any jurisdiction other than the State of New York.
(iiiC) The General Partner and Partner, each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and New York state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement and to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which which, either individually or in the aggregate, would not be reasonably likely to have a material adverse effect on the ability of the Partnership or the General Partner to conduct their ability to act business as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(ivD) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, Partnership and constitutes a legal, valid and binding agreement of the General Partner and the Partnership, enforceable against the General Partner and the Partnership, in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, receivership or similar other laws at the time in effect relating to or affecting the enforceability generally of creditors' rights of creditors generally, and by to general principals principles of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability that the enforcement of indemnification, exculpation rights with respect to indemnification and contribution obligations and provisions contained in such agreements relating to submission to jurisdiction, venue or service of process, may be limited by applicable law or considerations of public policy.
(vE) The execution and delivery by each of the General Partner and the Partnership of this Agreement and the offer and sale performance by each of the Units by General Partner and the Partnership and the incurrence of the its respective obligations herein set forth and the consummation of the transactions contemplated herein hereunder and in the Prospectus will (a) do not require any Governmental Approval to be obtained on the part of the General Partner or the Partnership, except those that have been obtained and, to such counsel's knowledge, are in contravention effect, (b) do not result in a violation of any provision of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, Partnership or the Limited Partnership Agreement and, of the Partnership or any Applicable Laws applicable to the best of such counsel's knowledge based upon due inquiry of certain officers of General Partner and the General PartnerPartnership, will and (c) do not constitute breach or result in a breach violation of, or default under, or a violation (i) any of any agreement or instrument the agreements listed on the Registration Statement which are known to such counsel by which the General Partner counsel's knowledge to be effective, or the Partnership is bound and will not violate (ii) any judgment, decree or order known to such counsel or any law, rule or regulation which is applicable to the General Partner or the Partnership of and, pursuant to any courtApplicable Laws, governmental body, administrative agency, panel or self-regulatory organization is issued by any Governmental Authority having jurisdiction over it or its properties. "Applicable Laws" means those laws, rules and regulations of the General Partner or State of New York and of the Partnership.
(vi) To United States of America which, in such counsel's knowledgeexperience, based upon due inquiry of certain officers are normally applicable to transactions of the General Partnertype contemplated by this Agreement. "Governmental Authorities" means executive, except as disclosed in the Prospectuslegislative, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, governmental bodyjudicial, administrative agency, panel or self-regulatory organization, nor have there been any such suits or proceedings within the five years preceding the date bodies of the Prospectus, to which the General Partner State of New York or the Partnership is United States of America. "Government Approval" means any consent, approval, license, authorization or was a partyvalidation of, or filing, recording or registration with any Governmental Authority pursuant to which any of their assets is or was subject, which would be material to an investor's decision to invest in the Partnership or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of businessApplicable Laws.
(vii) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws.
(viii) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ix) Based upon reliance on certain SEC "no-action" letters, as of the closing, the Partnership need not register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 1 contract
Samples: Management Agreement (Morgan Stanley Spectrum Currency Lp)
Closing Certificates and Opinions. (1a) The Trading Advisor shall, at the Partnership's first Monthly Initial Closing following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)monthly closing thereafter, provide the following:
(ai) To DWRMS&Co., the General Partner and the Partnership a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(iA) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(iiB) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(bii) To DWRMS&Co., the General Partner and the Partnership an opinion of counsel to the Trading Advisor, in form and substance satisfactory to such parties, to the effect that:
(iA) The Trading Advisor is a corporation duly organized and validly existing under the laws of the state jurisdiction of its incorporation and is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiB) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, self-regulatory and commodity exchange and clearing association licenses, registrations, and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has made all filings necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigationsinvestigation, none of such licenses, memberships or registrations have been rescinded, revoked or suspended.
(iiiC) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a legal, valid and binding agreement of the Trading Advisor, enforceable against the Trading Advisor enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, receivership or similar other laws at the time in effect relating to or affecting the enforceability generally of creditors' rights of creditors generally, and by to general principles of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability that the enforcement of the indemnification, exculpation, rights with respect to indemnification and contribution obligations and provisions contained in this Agreement (a) purporting to waive or limit rights to trial by jury, oral amendments to written agreements or rights of set off or (b) relating to submission to jurisdiction, venue or service of process, may be limited by applicable law or public policy and the enforcement considerations of specific terms or remedies may be unavailable.
(iv) Based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either threatened or pending in any court or before or by any governmental or administrative body nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(v) The execution and delivery of this Agreement the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of any of the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, will not constitute a breach of, or default under, or a violation of any instrument or agreement known to such counsel by which the Trading Advisor is bound and will not violate any order, law, rule or regulation applicable to the Trading Advisor of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Advisor.
(vi) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(vii) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2) The General Partner shall, at the Partnership's first Monthly Closing following the effective date of the Registration Statement, provide the following:
(a) To the Trading Advisor a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
(i) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iii) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(b) Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the General Partner and the Partnership, shall deliver its opinion to the parties hereto, in form and substance satisfactory to the parties hereto, to the effect that:
(i) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing under the laws of the State of Delaware with full partnership power and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate of Authority as contemplated under the New York Revised Limited Partnership Act and is qualified to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and Prospectus.
(ii) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and Prospectus. The General Partner has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iii) The General Partner and each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which would not have a material adverse effect on their ability to act as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(iv) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, and constitutes a valid and binding agreement of the General Partner and the Partnership, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of indemnification, exculpation and contribution provisions contained in such agreements may be limited by applicable law or public policy.
(v) The execution and delivery of this Agreement and the offer and sale of the Units by the Partnership and the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, or the Limited Partnership Agreement and, to the best of such counsel's knowledge based upon due inquiry of certain officers of the General Partner, will not constitute a breach of, or default under, or a violation of any agreement or instrument known to such counsel by which the General Partner or the Partnership is bound and will not violate any order known to such counsel or any law, rule or regulation applicable to the General Partner or the Partnership of any court, governmental body, administrative agency, panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership.
(viD) To such counsel's knowledge, based upon due inquiry of certain officers of the General PartnerTrading Advisor, except as disclosed in the Prospectus, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, governmental body, administrative agency, panel or self-regulatory organization, nor have there been any such actions, suits or proceedings within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(E) The execution and delivery by the Trading Advisor of this Agreement, and the performance by the Trading Advisor of its obligations hereunder and in the Prospectus (a) do not require any Governmental Approval (as defined below) to be obtained on the part of the Trading Advisor, except those that have been obtained and, to such counsel's knowledge, are in effect, (b) do not result in a violation of any provision of the certificate of incorporation or bylaws of the Trading Advisor or any Applicable Laws (as defined below) applicable to the Trading Advisor, and (c) do not breach or result in a violation of, or default under, (i) any indenture, mortgage, deed of trust, agreement or instrument known by us to which the General Partner Trading Advisor or any of its subsidiaries is a party or by which the Partnership Trading Advisor or any of its subsidiaries is or was a party, bound or to which any of their the property or assets of the Trading Advisor or any of its subsidiaries is or was subject, or (ii) any judgment, decree or order known to such counsel which would be material is applicable to an investor's decision to invest in the Partnership or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of business.
(vii) The Registration Statement is effective under the Securities Act Trading Advisor and, pursuant to any Applicable Laws, is issued by any Governmental Authority (as defined below) having jurisdiction over the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws.
(viii) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principalsproperties. "Applicable Laws" means those laws, rules and regulations of the State of New York and of the United States of America which, in such counsel's experience, are normally applicable to transactions of the type contemplated by this Agreement. "Governmental Authorities" means executive, legislative, judicial, administrative or regulatory bodies of the State of New York or the United States of America. "Governmental Approval" means any consent, approval, license, authorization or validation of, or (b) as filing, recording or registration with, any Governmental Authority pursuant to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and ProspectusApplicable Laws.
(ix) Based upon reliance on certain SEC "no-action" letters, as of the closing, the Partnership need not register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 1 contract
Samples: Management Agreement (Morgan Stanley Spectrum Technical Lp)
Closing Certificates and Opinions. (1) The Trading Advisor shall, at the Partnership's first Monthly Initial Closing following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)monthly closing thereafter, provide the following:
(a) : To DWRMorgan Stanley DW, the General Partner and the Partnership a certificatecertifxxxxx, dated the xxxxx xxx date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(i) : The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(ii) . The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(b) . To DWRMorgan Stanley DW, the General Partner and the Partnership an opinion of counsel to opinixx xx cxxxxxx xx the Trading Advisor, Advisor in form and substance satisfactory to such parties, to the effect that:
(i) : The Trading Advisor is a corporation duly organized and validly existing under the laws of the state jurisdiction of its incorporation and is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(ii) . The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, self-regulatory and commodity exchange and clearing association licenses, registrations, and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has made all filings necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigationsinvestigation, none of such licenses, memberships or registrations have been rescinded, revoked or suspended.
(iii) . This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a legal, valid and binding agreement of the Trading Advisor, enforceable against the Trading Advisor enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, receivership or similar other laws at the time in effect relating to or affecting the enforceability generally of creditors' rights of creditors generally, and by to general principles of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability that the enforcement of the indemnification, exculpation, rights with respect to indemnification and contribution obligations and provisions contained in this Agreement (a) purporting to waive or limit rights to trial by jury, oral amendments to written agreements or rights of set off or (b) relating to submission to jurisdiction, venue or service of process, may be limited by applicable law or public policy and the enforcement considerations of specific terms or remedies may be unavailable.
(iv) Based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either threatened or pending in any court or before or by any governmental or administrative body nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(v) The execution and delivery of this Agreement the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of any of the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, will not constitute a breach of, or default under, or a violation of any instrument or agreement known to such counsel by which the Trading Advisor is bound and will not violate any order, law, rule or regulation applicable to the Trading Advisor of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Advisor.
(vi) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(vii) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2) The General Partner shall, at the Partnership's first Monthly Closing following the effective date of the Registration Statement, provide the following:
(a) To the Trading Advisor a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
(i) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iii) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(b) Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the General Partner and the Partnership, shall deliver its opinion to the parties hereto, in form and substance satisfactory to the parties hereto, to the effect that:
(i) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing under the laws of the State of Delaware with full partnership power and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate of Authority as contemplated under the New York Revised Limited Partnership Act and is qualified to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and Prospectus.
(ii) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and Prospectus. The General Partner has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iii) The General Partner and each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which would not have a material adverse effect on their ability to act as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(iv) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, and constitutes a valid and binding agreement of the General Partner and the Partnership, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of indemnification, exculpation and contribution provisions contained in such agreements may be limited by applicable law or public policy.
(v) The execution and delivery of this Agreement and the offer and sale of the Units by the Partnership and the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, or the Limited Partnership Agreement and, to the best of such counsel's knowledge based upon due inquiry of certain officers of the General Partner, will not constitute a breach of, or default under, or a violation of any agreement or instrument known to such counsel by which the General Partner or the Partnership is bound and will not violate any order known to such counsel or any law, rule or regulation applicable to the General Partner or the Partnership of any court, governmental body, administrative agency, panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership.
(vi) . To such counsel's knowledge, based upon due inquiry of certain officers of the General PartnerTrading Advisor, except as disclosed in the Prospectus, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, governmental body, administrative agency, panel or self-regulatory organization, nor have there been any such actions, suits or proceedings within the five years preceding the date of the Prospectus, to which Prospectus against the General Partner or the Partnership is or was a party, or to which any of their assets is or was subject, which would be material to an investor's decision to invest in the Partnership or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of business.
(vii) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act Trading Advisor or any similar state securities laws.
(viii) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any untrue statement of a material fact or omitted to state a material fact Trading Advisor Principal which are required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information disclosed in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ix) Based upon reliance on certain SEC "no-action" letters, as of the closing, the Partnership need not register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 1 contract
Samples: Management Agreement (Morgan Stanley Spectrum Technical Lp)
Closing Certificates and Opinions. (1a) The Trading Advisor shall, at the Partnership's first Monthly Closing following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)monthly closing, provide the following:
(ai) To DWR, the General Partner and the Partnership a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(iA) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(iiB) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(bii) To DWR, the General Partner and the Partnership an opinion of counsel to the Trading Advisor, in form and substance satisfactory to such parties, to the effect that:
(iA) The Trading Advisor is a corporation duly organized and validly existing under the laws of the state State of its incorporation Delaware and is qualified to do business and in good standing in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiB) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, and self-regulatory and commodity exchange and clearing association licenses, registrations, registrations and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has received or made all filings and registrations necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigationsinvestigation, none of such such, licenses, memberships or registrations have been rescinded, revoked or suspended.
(iiiC) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a valid and binding agreement of the Trading Advisor enforceable in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of the indemnification, exculpation, and contribution provisions contained in this Agreement may be limited by applicable law or public policy and the enforcement of specific terms or remedies may be unavailable.
(ivD) Based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either pending or threatened or pending in any court or before or by any court, governmental body, administrative agency, panel or administrative body self- regulatory organization, nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(vE) The execution and delivery of this Agreement Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of any of the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, will not constitute a breach of, or default under, or a violation of any instrument or agreement known to such counsel by which the Trading Advisor is bound and will not violate any order, law, rule or regulation applicable to the Trading Advisor of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Advisor.
(viF) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(viiG) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading; provided, however, that such counsel need express no opinion or belief as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus, except that such counsel shall opine, without rendering any opinion as to the accuracy of the information in such tables, that the actual performance tables of the Trading Advisor set forth in the Prospectus comply as to form in all material respects with applicable CFTC rules and all CFTC and NFA interpretations thereof, except as disclosed in the Prospectus or as otherwise permitted by the CFTC staff. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2iii) To DWR, the General Partner and the Partnership, a report dated the date of the closing which shall present, for the period from the date after the last day covered by the historical performance capsules in the Prospectus to the latest practicable day before closing, updated performance information which shall certify that such figures are, to the best of such Trading Advisor's knowledge, accurate in all material respects.
(b) The General Partner shall, at the Partnership's first Monthly Closing following the effective date if a similar request is made of the Registration StatementTrading Advisor at any monthly closing, provide the following:
(ai) To the Trading Advisor a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
(iA) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.
(iiB) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iiiC) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(bii) Cadwalader, Xxxxxxxxxx Wickersham & XxxxTaft, counsel to the General Partner and the PartnershipPartnerxxxx, shall deliver xxxxl dxxxxer its opinion to the parties hereto, hereto in form and substance satisfactory to the parties hereto, to the effect that:
(iA) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership of the Partnership, the Limited Partnership Agreement of the Partnership and the DRULPA and is validly existing under the laws of the State of Delaware with full partnership power and authority to conduct the business in which it proposes to engage engages as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate of Authority as contemplated under the New York Revised Limited Partnership Act and is qualified to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and Prospectus.
(iiB) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and ProspectusProspectus or under this Agreement. The General Partner has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiiC) The General Partner and Partner, each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which would not have a material adverse effect on their the ability of the Partnership or the General Partner to act as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(ivD) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, and constitutes a valid and binding agreement of the General Partner and the Partnership, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of indemnification, exculpation and contribution provisions contained in such agreements this Agreement may be limited by applicable law or public policy.
(vE) The execution and delivery of this Agreement and the offer and sale of the Units by the Partnership and the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership of the Partnership, or and the Limited Partnership Agreement of the Partnership and, to the best of such counsel's knowledge based upon due inquiry of certain officers of the General Partner, none of the foregoing will not constitute a breach of, or default under, or a violation of any agreement or instrument known to such counsel by which the General Partner or the Partnership is bound and will not or violate any order known to such counsel or any law, rule or regulation applicable to the General Partner or the Partnership of any court, governmental body, administrative agency, panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership.
(viF) To such counsel's knowledge, based upon due inquiry of certain officers of the General Partner, except as disclosed in the Prospectus, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, court governmental body, administrative agency, panel or self-self regulatory organization, nor have there been any such actions, suits or proceedings within the five years preceding the date of the Prospectus, to which Prospectus against the General Partner or the Partnership is or was a party, or which are required to which any of their assets is or was subject, which would be material to an investor's decision to invest disclosed in the Partnership Registration Statement or which might reasonably be expected to result in a materially adverse change Prospectus that are not disclosed in the condition, financial or otherwise, business or prospects of Registration Statement and the General Partner, or the Partnership, whether or not arising in the ordinary course of businessProspectus.
(viiG) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws.
(viiiH) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. .
(I) Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx such counsel need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ixJ) Based upon reliance on certain SEC "no-action" letters, as of the closing, the Partnership need not register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 1 contract
Samples: Management Agreement (DWFCM International Access Fund Lp)
Closing Certificates and Opinions. (1a) The Trading Advisor shall, at the Partnership's first Monthly Initial Closing following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)Closing, provide the following:
(ai) To DWR, the General Partner and the Partnership a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(iA) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(iiB) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(bii) To DWR, the General Partner and the Partnership an opinion of counsel to the Trading Advisor, in form and substance satisfactory to such parties, to the effect that:
(iA) The Trading Advisor is a corporation limited liability company duly organized and validly existing under the laws of the state of its incorporation and organization is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate limited liability company power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiB) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, and self-regulatory and commodity exchange and clearing association licenses, registrations, registrations and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has received or made all filings and registrations necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigationsinvestigation, none of such licensessuch, memberships or registrations have been rescinded, revoked or suspended.
(iiiC) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a valid and binding agreement of the Trading Advisor enforceable in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principles principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of the indemnification, exculpation, and contribution provisions contained in this Agreement such agreements may be limited by applicable law or public policy and the enforcement of specific terms or remedies may be unavailable.
(ivD) Based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either pending or threatened or pending in any court or before or by any court, governmental body, administrative agency, panel or administrative body self- regulatory organization, nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(vE) The execution and delivery of this Agreement Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of any of the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, will not constitute a breach of, or default under, or a violation of any instrument or agreement known to such counsel by which the Trading Advisor is bound and will not violate any order, law, rule or regulation applicable to the Trading Advisor of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Advisor.
(viF) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(viiG) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading; PROVIDED, HOWEVER, that such counsel need express no opinion or belief as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus, except that such counsel shall opine, without rendering any opinion as to the accuracy of the information in such tables, that the actual performance tables of the Trading Advisor set forth in the Prospectus comply as to form in all material respects with applicable CFTC rules and all CFTC and NFA interpretations thereof, except as disclosed in the Prospectus. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2iii) To DWR, the General Partner and the Partnership, a report dated the date of the closing which shall present, for the period from the date after the last day covered by the historical performance capsules in the Prospectus to the latest practicable day before closing, updated performance information which shall certify that such figures are, to the best of such Trading Advisor's knowledge, accurate in all material respects.
(b) The General Partner shall, at the Partnership's first Monthly Initial Closing following and at the effective date request of the Registration StatementTrading Advisor at any Closing, provide the following:
(ai) To the Trading Advisor a certificate, dated the date of such closing closings and in form and substance satisfactory to the Trading Advisor, to the effect that:
(iA) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.
(iiB) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iiiC) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(bii) To the parties hereto, an opinion of Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the General Partner and the Partnership, shall deliver its opinion to the parties hereto, in form and substance satisfactory to the parties heretosuch parties, to the effect that:
(iA) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing under the laws of the State of Delaware with full partnership power and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate of Authority as contemplated under the New York Revised Limited Partnership Act and is qualified to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and Prospectus.
(iiB) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations under this Agreement or as described in the Registration Statement and Prospectus. The General Partner has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiiC) The General Partner and Partner, each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which would not have a material adverse effect on their the ability of the Partnership or the General Partner to act as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(ivD) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, and constitutes a valid and binding agreement of the General Partner and the Partnership, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of indemnification, exculpation and contribution provisions contained in such agreements this Agreement may be limited by applicable law or public policy.
(vE) The execution and delivery of this Agreement and the offer and sale of the Units by the Partnership and the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, or and the Limited Partnership Agreement and, to the best of such counsel's knowledge based upon due inquiry of certain officers of the General Partner, none of the foregoing will not constitute a breach of, or default under, or a violation of any agreement or instrument known to such counsel by which the General Partner or the Partnership is bound and will not or violate any order known to such counsel or any law, rule or regulation applicable to the General Partner or the Partnership of any court, governmental body, administrative agency, panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership.
(viF) To such counsel's knowledge, based upon due inquiry of certain officers of the General Partner, except as disclosed in the Prospectus, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, court governmental body, administrative agency, panel or self-self regulatory organization, nor have there been any such actions, suits or proceedings within the five years preceding the date of the Prospectus, to which Prospectus against the General Partner or the Partnership is or was a party, or which are required to which any of their assets is or was subject, which would be material to an investor's decision to invest disclosed in the Partnership Registration Statement or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of businessProspectus.
(viiG) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws.
(viiiH) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. .
(I) Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ixJ) Based upon reliance on certain SEC "no-action" letters, as of the closing, the performance of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Partnership need not to register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 1 contract
Samples: Management Agreement (Morgan Stanley Dean Witter Spectrum Currency Lp)
Closing Certificates and Opinions. (1) The Trading Advisor shall, at the Partnership's first Monthly Initial Closing following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)monthly closing thereafter, provide the following:
(a) : To DWRMorgan Stanley DW, the General Partner and the Partnership a certificatecertifxxxxx, dated the xxxxx xxx date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(i) : The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(ii) . The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(b) . To DWRMorgan Stanley DW, the General Partner and the Partnership an opinion of counsel to opinixx xx cxxxxxx xx the Trading Advisor, Advisor in form and substance satisfactory to such parties, to the effect that:
(i) : The Trading Advisor is a corporation limited partnership duly organized formed and validly existing under the laws of the state of its incorporation formation and is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate limited partnership power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(ii) . The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, self-regulatory and commodity exchange and clearing association licenses, registrations, and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has made all filings necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigationsinvestigation, none of such licenses, memberships or registrations have been rescinded, revoked or suspended.
(iii) . This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a legal, valid and binding agreement of the Trading Advisor, enforceable against the Trading Advisor enforceable in accordance with its terms, subject only to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, receivership or similar other laws at the time in effect relating to or affecting the enforceability generally of creditors' rights of creditors generally, and by to general principles of equity (regardless of whether such enforceability enforcement is considered sought in a proceeding at law or in equity or at lawequity), and except as enforceability that the enforcement of the indemnification, exculpation, rights with respect to indemnification and contribution obligations and provisions contained in this Agreement (a) purporting to waive or limit rights to trial by jury, oral amendments to written agreements or rights of set off or (b) relating to submission to jurisdiction, venue or service of process, may be limited by applicable law or public policy and the enforcement considerations of specific terms or remedies may be unavailable.
(iv) Based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either threatened or pending in any court or before or by any governmental or administrative body nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(v) The execution and delivery of this Agreement the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of any of the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, will not constitute a breach of, or default under, or a violation of any instrument or agreement known to such counsel by which the Trading Advisor is bound and will not violate any order, law, rule or regulation applicable to the Trading Advisor of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Advisor.
(vi) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(vii) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2) The General Partner shall, at the Partnership's first Monthly Closing following the effective date of the Registration Statement, provide the following:
(a) To the Trading Advisor a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
(i) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iii) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(b) Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the General Partner and the Partnership, shall deliver its opinion to the parties hereto, in form and substance satisfactory to the parties hereto, to the effect that:
(i) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing under the laws of the State of Delaware with full partnership power and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate of Authority as contemplated under the New York Revised Limited Partnership Act and is qualified to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and Prospectus.
(ii) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and Prospectus. The General Partner has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iii) The General Partner and each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which would not have a material adverse effect on their ability to act as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(iv) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, and constitutes a valid and binding agreement of the General Partner and the Partnership, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of indemnification, exculpation and contribution provisions contained in such agreements may be limited by applicable law or public policy.
(v) The execution and delivery of this Agreement and the offer and sale of the Units by the Partnership and the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, or the Limited Partnership Agreement and, to the best of such counsel's knowledge based upon due inquiry of certain officers of the General Partner, will not constitute a breach of, or default under, or a violation of any agreement or instrument known to such counsel by which the General Partner or the Partnership is bound and will not violate any order known to such counsel or any law, rule or regulation applicable to the General Partner or the Partnership of any court, governmental body, administrative agency, panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership.
(vi) . To such counsel's knowledge, based upon due inquiry of certain officers of the General PartnerTrading Advisor, except as disclosed in the Prospectus, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, governmental body, administrative agency, panel or self-regulatory organization, nor have there been any such actions, suits or proceedings within the five years preceding the date of the Prospectus, to which Prospectus against the General Partner or the Partnership is or was a party, or to which any of their assets is or was subject, which would be material to an investor's decision to invest in the Partnership or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of business.
(vii) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act Trading Advisor or any similar state securities laws.
(viii) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any untrue statement of a material fact or omitted to state a material fact Trading Advisor Principal which are required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information disclosed in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ix) Based upon reliance on certain SEC "no-action" letters, as of the closing, the Partnership need not register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 1 contract
Samples: Management Agreement (Morgan Stanley Spectrum Select Lp)
Closing Certificates and Opinions. (1a) The Trading Advisor shall, at the Partnership's first Monthly Initial Closing following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)Closing, provide the following:
(ai) To DWR, the General Partner and the Partnership a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(iA) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(iiB) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(bii) To DWR, the General Partner and the Partnership an opinion of counsel to the Trading Advisor, in form and substance satisfactory to such parties, to the effect that:
(iA) The Trading Advisor is a corporation limited liability company duly organized and validly existing under the laws of the state of its incorporation and organization is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate limited liability company power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiB) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, and self-regulatory and commodity exchange and clearing association licenses, registrations, registrations and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has received or made all filings and registrations necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigationsinvestigation, none of such licensessuch, memberships or registrations have been rescinded, revoked or suspended.
(iiiC) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a valid and binding agreement of the Trading Advisor enforceable in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principles principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of the indemnification, exculpation, and contribution provisions contained in this Agreement such agreements may be limited by applicable law or public policy and the enforcement of specific terms or remedies may be unavailable.
(ivD) Based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either pending or threatened or pending in any court or before or by any court, governmental body, administrative agency, panel or administrative body self- regulatory organization, nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(vE) The execution and delivery of this Agreement Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of any of the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, will not constitute a breach of, or default under, or a violation of any instrument or agreement known to such counsel by which the Trading Advisor is bound and will not violate any order, law, rule or regulation applicable to the Trading Advisor of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Advisor.
(viF) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(viiG) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading; provided, however, that such counsel need express no opinion or belief as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus, except that such counsel shall opine, without rendering any opinion as to the accuracy of the information in such tables, that the actual performance tables of the Trading Advisor set forth in the Prospectus comply as to form in all material respects with applicable CFTC rules and all CFTC and NFA interpretations thereof, except as disclosed in the Prospectus. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2iii) To DWR, the General Partner and the Partnership, a report dated the date of the closing which shall present, for the period from the date after the last day covered by the historical performance capsules in the Prospectus to the latest practicable day before closing, updated performance information which shall certify that such figures are, to the best of such Trading Advisor's knowledge, accurate in all material respects.
(b) The General Partner shall, at the Partnership's first Monthly Initial Closing following and at the effective date request of the Registration StatementTrading Advisor at any Closing, provide the following:
(ai) To the Trading Advisor a certificate, dated the date of such closing closings and in form and substance satisfactory to the Trading Advisor, to the effect that:
(iA) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.
(iiB) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending sus pending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iiiC) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(bii) To the parties hereto, an opinion of Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the General Partner and the Partnership, shall deliver its opinion to the parties hereto, in form and substance satisfactory to the parties heretosuch parties, to the effect that:
(iA) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing under the laws of the State of Delaware with full partnership power and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate of Authority as contemplated under the New York Revised Limited Partnership Act and is qualified to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and Prospectus.
(iiB) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations under this Agreement or as described in the Registration Statement and Prospectus. The General Partner has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiiC) The General Partner and Partner, each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which would not have a material adverse effect on their the ability of the Partnership or the General Partner to act as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(ivD) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, and constitutes a valid and binding agreement of the General Partner and the Partnership, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of indemnification, exculpation and contribution provisions contained in such agreements this Agreement may be limited by applicable law or public policy.
(vE) The execution and delivery of this Agreement and the offer and sale of the Units by the Partnership and the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, or and the Limited Partnership Agreement and, to the best of such counsel's knowledge based upon due inquiry of certain officers of the General Partner, none of the foregoing will not constitute a breach of, or default under, or a violation of any agreement or instrument known to such counsel by which the General Partner or the Partnership is bound and will not or violate any order known to such counsel or any law, rule or regulation applicable to the General Partner or the Partnership of any court, governmental body, administrative agency, panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership.
(viF) To such counsel's knowledge, based upon due inquiry of certain officers of the General Partner, except as disclosed in the Prospectus, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, court governmental body, administrative agency, panel or self-self regulatory organization, nor have there been any such actions, suits or proceedings within the five years preceding the date of the Prospectus, to which Prospectus against the General Partner or the Partnership is or was a party, or which are required to which any of their assets is or was subject, which would be material to an investor's decision to invest disclosed in the Partnership Registration Statement or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of businessProspectus.
(viiG) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws.
(viiiH) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. .
(I) Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ixJ) Based upon reliance on certain SEC "no-action" letters, as of the closing, the performance of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Partnership need not to register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 1 contract
Samples: Management Agreement (Morgan Stanley Dean Witter Spectrum Currency Lp)
Closing Certificates and Opinions. (1) The Trading Advisor shall, at the Partnership's first Monthly Closing (as defined in the Prospectus), following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)Closing, provide the following:
(a) To DWR, the General Partner and the Partnership a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(i) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(ii) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(b) To DWR, the General Partner and the Partnership an opinion of counsel to the Trading Advisor, in form and substance satisfactory to such parties, to the effect that:
(i) The Trading Advisor is a corporation limited partnership duly organized formed and validly existing under the laws of the state State of its incorporation Delaware and is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(ii) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, self-regulatory and commodity exchange and clearing association licenses, registrations, and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has made all filings necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigations, none of such licenses, memberships or registrations have been rescinded, revoked or suspended.
(iii) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a valid and binding agreement of the Trading Advisor enforceable in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of the indemnification, exculpation, and contribution provisions contained in this Agreement may be limited by applicable law or public policy and the enforcement of specific terms or remedies may be unavailable.
(iv) Based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either threatened or pending in any court or before or by any governmental or administrative body nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(v) The execution and delivery of this Agreement Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of any of the provisions of the certificate of incorporation limited partnership or bylaws limited partnership agreement of the Trading Advisor and, based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, will not constitute a breach of, or default under, or a violation of any instrument or agreement known to such counsel by which the Trading Advisor is bound and will not violate any order, law, rule or regulation applicable to the Trading Advisor of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Advisor.
(vi) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(vii) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading; PROVIDED, HOWEVER, that such counsel need express no opinion or belief as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus, except that such counsel shall opine, without rendering any opinion as to the accuracy of the information in such tables, that the actual performance tables of the Trading Advisor set forth in the Prospectus comply as to form in all material respects with applicable CFTC rules and all CFTC and NFA interpretations thereof, except as disclosed in the Prospectus or as otherwise permitted by the CFTC staff. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(c) To DWR, the General Partner and the Partnership, a report dated the date of the closing which shall present, for the period from the date after the last day covered by the historical performance records in the Prospectus to the latest practicable day before closing, figures which shall be a continuation of such historical performance records and which shall certify that such figures are, to the best of such Trading Advisor's knowledge, accurate in all material respects.
(2) The General Partner shall, at the Partnership's first Monthly Closing following the effective date of the Registration Statement, provide the following:
(a) To the Trading Advisor a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
(i) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iii) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(b) Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the General Partner and the Partnership, shall deliver its opinion to the parties hereto, in form and substance satisfactory to the parties hereto, to the effect that:
(i) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing under the laws of the State of Delaware with full partnership power and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate of Authority as contemplated under the New York Revised Limited Partnership Act and is qualified to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and Prospectus.
(ii) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and Prospectus. The General Partner has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iii) The General Partner and Partner, each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which would not have a material adverse effect on their the ability of the Partnership or the General Partner to act as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(iv) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, and constitutes a valid and binding agreement of the General Partner and the Partnership, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of indemnification, exculpation and contribution provisions contained in such agreements may be limited by applicable law or public policy.
(v) The execution and delivery of this Agreement and the offer and sale of the Units by the Partnership and the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, or the Limited Partnership Agreement and, to the best of such counsel's knowledge based upon due inquiry of certain officers of the General Partner, will not constitute a breach of, or default under, or a violation of any agreement or instrument known to such counsel by which the General Partner or the Partnership is bound and will not violate any order known to such counsel or any law, rule or regulation applicable to the General Partner or the Partnership of any court, governmental body, administrative agency, panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership.
(vi) To such counsel's knowledge, based upon due inquiry of certain officers of the General Partner, except as disclosed in the Prospectus, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, governmental body, administrative agency, panel or self-regulatory organization, nor have there been any such actions, suits or proceedings within the five years preceding the date of the Prospectus, to which Prospectus against the General Partner or the Partnership is or was a party, or to which any of their assets is or was subjectPartnership, which would are required to be material to an investor's decision to invest disclosed in the Partnership Registration Statement or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of businessProspectus.
(vii) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws.
(viii) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ix) Based upon reliance on certain SEC "no-action" letters, as of the closing, the Partnership need not register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 1 contract
Samples: Management Agreement (Morgan Stanley Dean Witter Spectrum Select Lp)
Closing Certificates and Opinions. (1) The Trading Advisor shall, at the Partnership's first Monthly Closing (as defined in the Prospectus), following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)Closing, provide the following:
(a) To DWR, the General Partner and the Partnership a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(i) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(ii) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(b) To DWR, the General Partner and the Partnership an opinion of counsel to the Trading Advisor, in form and substance satisfactory to such parties, to the effect that:
(i) The Trading Advisor is a corporation duly organized and validly existing under the laws of the state of its incorporation and is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(ii) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, self-regulatory and commodity exchange and clearing association licenses, registrations, and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has made all filings necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigations, none of such licenses, memberships or registrations have been rescinded, revoked or suspended.
(iii) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a valid and binding agreement of the Trading Advisor enforceable in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of the indemnification, exculpation, and contribution provisions contained in this Agreement may be limited by applicable law or public policy and the enforcement of specific terms or remedies may be unavailable.
(iv) Based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either threatened or pending in any court or before or by any governmental or administrative body nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(v) The execution and delivery of this Agreement the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of any of the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, will not constitute a breach of, or default under, or a violation of any instrument or agreement known to such counsel by which the Trading Advisor is bound and will not violate any order, law, rule or regulation applicable to the Trading Advisor of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Advisor.
(vi) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(vii) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading; PROVIDED, HOWEVER, that such counsel need express no opinion or belief as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus, except that such counsel shall opine, without rendering any opinion as to the accuracy of the information in such tables, that the actual performance tables of the Trading Advisor set forth in the Prospectus comply as to form in all material respects with applicable CFTC rules and all CFTC and NFA interpretations thereof, except as disclosed in the Prospectus or as otherwise permitted by the CFTC staff. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(c) To DWR, the General Partner and the Partnership, a report dated the date of the closing which shall present, for the period from the date after the last day covered by the historical performance records in the Prospectus to the latest practicable day before closing, figures which shall be a continuation of such historical performance records and which shall certify that such figures are, to the best of such Trading Advisor's knowledge, accurate in all material respects.
(2) The General Partner shall, at the Partnership's first Monthly Closing following the effective date of the Registration Statement, provide the following:
(a) To the Trading Advisor a certificate, dated the date of such closing and in form and substance satisfactory to the Trading Advisor, to the effect that:
(i) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iii) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(b) Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the General Partner and the Partnership, shall deliver its opinion to the parties hereto, in form and substance satisfactory to the parties hereto, to the effect that:
(i) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing under the laws of the State of Delaware with full partnership power and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate of Authority as contemplated under the New York Revised Limited Partnership Act and is qualified to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and Prospectus.
(ii) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and Prospectus. The General Partner has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iii) The General Partner and Partner, each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which would not have a material adverse effect on their the ability of the Partnership or the General Partner to act as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(iv) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, and constitutes a valid and binding agreement of the General Partner and the Partnership, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of indemnification, exculpation and contribution provisions contained in such agreements may be limited by applicable law or public policy.
(v) The execution and delivery of this Agreement and the offer and sale of the Units by the Partnership and the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, or the Limited Partnership Agreement and, to the best of such counsel's knowledge based upon due inquiry of certain officers of the General Partner, will not constitute a breach of, or default under, or a violation of any agreement or instrument known to such counsel by which the General Partner or the Partnership is bound and will not violate any order known to such counsel or any law, rule or regulation applicable to the General Partner or the Partnership of any court, governmental body, administrative agency, panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership.
(vi) To such counsel's knowledge, based upon due inquiry of certain officers of the General Partner, except as disclosed in the Prospectus, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, governmental body, administrative agency, panel or self-regulatory organization, nor have there been any such actions, suits or proceedings within the five years preceding the date of the Prospectus, to which Prospectus against the General Partner or the Partnership is or was a party, or to which any of their assets is or was subjectPartnership, which would are required to be material to an investor's decision to invest disclosed in the Partnership Registration Statement or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of businessProspectus.
(vii) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws.
(viii) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ix) Based upon reliance on certain SEC "no-action" letters, as of the closing, the Partnership need not register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 1 contract
Samples: Management Agreement (Witter Dean Spectrum Strategic Lp)
Closing Certificates and Opinions. (1a) The Trading Advisor shall, at the Partnership's first Monthly Initial Closing following the effective date of the Registration Statement and at the request of the General Partner at any Monthly Closing (as defined in the Prospectus)Closing, provide the following:
(ai) To DWR, the General Partner and the Partnership a certificate, dated the date of any such closing and in form and substance satisfactory to such parties, to the effect that:
(iA) The representations and warranties by the Trading Advisor in this Agreement are true, accurate, and a complete on and as of the date of the closing, as if made on the date of the closing.
(iiB) The Trading Advisor has performed all of its obligations and satisfied all of the conditions on its part to be performed or satisfied under this Agreement, at or prior to the date of such closing.
(bii) To DWR, the General Partner and the Partnership an opinion of counsel to the Trading Advisor, in form and substance satisfactory to such parties, to the effect that:
(iA) The Trading Advisor is a corporation duly organized and validly existing under the laws of the state of its incorporation and is qualified to do business and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially adversely affect the Trading Advisor's ability to perform its obligations under this Agreement. The Trading Advisor has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiB) The Trading Advisor (including the Trading Advisor Principals) has all governmental, regulatory, and self-regulatory and commodity exchange and clearing association licenses, registrations, registrations and memberships required by law, and the Trading Advisor (including the Trading Advisor Principals) has received or made all filings and registrations necessary to perform its obligations under this Agreement and to conduct its business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings and registrations, the absence of which would not have a material adverse effect on its ability to act as described in the Registration Statement and Prospectus or to perform its obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigationsinvestigation, none of such licensessuch, memberships or registrations have been rescinded, revoked or suspended.
(iiiC) This Agreement has been duly authorized, executed and delivered by or on behalf of the Trading Advisor and constitutes a valid and binding agreement of the Trading Advisor enforceable in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principles principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of the indemnification, exculpation, and contribution provisions contained in this Agreement such agreements may be limited by applicable law or public policy and the enforcement of specific terms or remedies may be unavailablepolicy.
(ivD) Based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, except as disclosed in the Prospectus, there are no material actions, suits or proceedings at law or in equity either pending or threatened or pending in any court or before or by any court, governmental body, administrative agency, panel or administrative body self- regulatory organization, nor have there been any such actions, suits or proceedings at any time within the five years preceding the date of the Prospectus against the Trading Advisor or any Trading Advisor Principal which are required to be disclosed in the Registration Statement or Prospectus.
(vE) The execution and delivery of this Agreement Agreement, the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of any of the provisions of the certificate of incorporation or bylaws of the Trading Advisor and, based upon due inquiry of certain officers of the Trading Advisor, to the best of such counsel's knowledge, will not constitute a breach of, or default under, or a violation of any instrument or agreement known to such counsel by which the Trading Advisor is bound and will not violate any order, law, rule or regulation applicable to the Trading Advisor of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the Trading Advisor.
(viF) Based upon reliance of certain SEC "no-action" letters, as of the closing, the performance by the Trading Advisor of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Trading Advisor to be registered as an "investment adviser" as that term is defined in the Investment Advisers Act of 1940, as amended.
(viiG) Nothing has come to such counsel's attention that would lead them to believe that, (A) the Registration Statement at the time it became effective, insofar as the Trading Advisor and the Trading Advisor Principals are concerned, contained any 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 not misleading, or (B) the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein relating to the Trading Advisor or the Trading Advisor Principals, in light of the circumstances under which they were made, not misleading; provided, however, that such counsel need express no opinion or belief as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus, except that such counsel shall opine, without rendering any opinion as to the accuracy of the information in such tables, that the actual performance tables of the Trading Advisor set forth in the Prospectus comply as to form in all material respects with applicable CFTC rules and all CFTC and NFA interpretations thereof, except as disclosed in the Prospectus. In giving the foregoing opinion, counsel may rely on information obtained from public officials, officers of the Trading Advisor, and other resources sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine.
(2iii) To DWR, the General Partner and the Partnership, a report dated the date of the closing which shall present, for the period from the date after the last day covered by the historical performance capsules in the Prospectus to the latest practicable day before closing, updated performance information which shall certify that such figures are, to the best of such Trading Advisor's knowledge, accurate in all material respects.
(b) The General Partner shall, at the Partnership's first Monthly Initial Closing following and at the effective date request of the Registration StatementTrading Advisor at any Closing, provide the following:
(ai) To the Trading Advisor a certificate, dated the date of such closing closings and in form and substance satisfactory to the Trading Advisor, to the effect that:
(iA) The representations and warranties by the Partnership and the General Partner in this Agreement are true, accurate, and complete on and as of the date of the closing as if made on the date of the closing.
(iiB) No stop order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act. No order preventing or suspending the use of the Prospectus has been issued by the SEC, NASD, CFTC, or NFA and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the General Partner, are contemplated or threatened under the Securities Act or the CEAct.
(iiiC) The Partnership and the General Partner have performed all of their obligations and satisfied all of the conditions on their part to be performed or satisfied under this Agreement at or prior to the date of the closing.
(bii) To the parties hereto, an opinion of Cadwalader, Xxxxxxxxxx & Xxxx, counsel to the General Partner and the Partnership, shall deliver its opinion to the parties hereto, in form and substance satisfactory to the parties heretosuch parties, to the effect that:
(iA) The Partnership is a limited partnership duly formed pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the DRULPA and is validly existing under the laws of the State of Delaware with full partnership power and authority to conduct the business in which it proposes to engage as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement; the Partnership has received a Certificate of Authority as contemplated under the New York Revised Limited Partnership Act and is qualified to do business in New York and need not affect any other filings or qualifications under the laws of any other jurisdictions to conduct its business as described in the Registration Statement and Prospectus.
(iiB) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and is qualified to do business and is in good standing as a foreign corporation in the State of New York and in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to so qualify might reasonably be expected to result in material adverse consequences to the Partnership or the General Partner's ability to perform its obligations as described in the Registration Statement and Prospectus. The General Partner has full corporate power and authority to conduct its business as described in the Registration Statement and Prospectus and to perform its obligations under this Agreement.
(iiiC) The General Partner and Partner, each of its principals as defined in Rule 3.1 under the CEAct, and the Partnership have all federal and state governmental and regulatory licenses, registrations and memberships required by law and have made all filings necessary in order for the General Partner and the Partnership to perform their obligations under this Agreement to conduct their business as described in the Registration Statement and Prospectus, except for such licenses, memberships, filings, and registrations, the absence of which would not have a material adverse effect on their the ability of the Partnership or the General Partner to act as described in the Registration Statement and Prospectus, or to perform their obligations under this Agreement, and, to the best of such counsel's knowledge, after due investigation, none of such licenses and memberships or registrations have been rescinded, revoked or suspended.
(ivD) This Agreement has been duly authorized, executed and delivered by or on behalf of the General Partner and the Partnership, and constitutes a valid and binding agreement of the General Partner and the Partnership, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws at the time in effect affecting the enforceability generally of rights of creditors and by general principals of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and except as enforceability of indemnification, exculpation and contribution provisions contained in such agreements this Agreement may be limited by applicable law or public policy.
(vE) The execution and delivery of this Agreement and the offer and sale of the Units by the Partnership and the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein and in the Prospectus will not be in contravention of the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, or and the Limited Partnership Agreement and, to the best of such counsel's knowledge based upon due inquiry of certain officers of the General Partner, none of the foregoing will not constitute a breach of, or default under, or a violation of any agreement or instrument known to such counsel by which the General Partner or the Partnership is bound and will not or violate any order known to such counsel or any law, rule or regulation applicable to the General Partner or the Partnership of any court, governmental body, administrative agency, panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership.
(viF) To such counsel's knowledge, based upon due inquiry of certain officers of the General Partner, except as disclosed in the Prospectus, there are no actions, suits or proceedings at law or in equity pending or threatened before or by any court, court governmental body, administrative agency, panel or self-self regulatory organization, nor have there been any such actions, suits or proceedings within the five years preceding the date of the Prospectus, to which Prospectus against the General Partner or the Partnership is or was a party, or which are required to which any of their assets is or was subject, which would be material to an investor's decision to invest disclosed in the Partnership Registration Statement or which might reasonably be expected to result in a materially adverse change in the condition, financial or otherwise, business or prospects of the General Partner, or the Partnership, whether or not arising in the ordinary course of businessProspectus.
(viiG) The Registration Statement is effective under the Securities Act and, to the best of such counsel's knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act or any similar state securities laws.
(viiiH) At the time the Registration Statement became effective, the Registration Statement, and at the time the Prospectus was issued and as of the closing, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Securities Regulations, the CEAct and the regulations of the NFA and NASD. .
(I) Nothing has come to such counsel's attention that would lead them to believe that the Registration Statement at the time it became effective contained any 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 not misleading, or that the Prospectus at the time it was issued or at the closing contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they where made, not misleading; provided, however, that Cadwalader, Xxxxxxxxxx & Xxxx need express no opinion or belief (a) as to information in the Registration Statement or the Prospectus regarding any Trading Advisor or its principals, or (b) as to the financial statements, notes thereto and other financial or statistical data set forth in the Registration Statement and Prospectus, or (c) as to the performance data and notes or descriptions thereto set forth in the Registration Statement and Prospectus.
(ixJ) Based upon reliance on certain SEC "no-action" letters, as of the closing, the performance of the transactions contemplated by this Agreement and as described in the Prospectus will not require the Partnership need not to register as an "investment company" under the Investment Company Act of 1940, as amended. In rendering its opinion, such counsel may rely on information obtained from public officials, officers of the General Partner and other sources believed by it to be responsible and may assume that signatures on all documents examined by it are genuine, and that a Subscription and Exchange Agreement and Power of Attorney in the form attached to the Prospectus has been duly authorized, completed, dated, executed, and delivered and funds representing the full subscription price for the Units purchased have been delivered by each purchaser of Units in accordance with the requirements set forth in the Prospectus.
Appears in 1 contract
Samples: Management Agreement (Morgan Stanley Dean Witter Spectrum Currency Lp)
