Common use of Representations and Warranties of Adviser Clause in Contracts

Representations and Warranties of Adviser. The Adviser represents and warrants to the Subadviser as follows: (a) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation, and is qualified in each jurisdiction in which failure to be so qualified would reasonably be expected to have a material adverse effect upon it. (b) it has all requisite power and authority to enter into and perform its obligations under this Agreement and has taken all necessary corporate action to authorize its execution, delivery and performance of this Agreement. The Adviser further represents that this Agreement has been duly and validly executed and delivered by it and is enforceable against it in accordance with its terms. (c) the investments contemplated under this Agreement do not violate, and are consistent in all material respects with, the investment management agreement(s) and any investment guidelines, objectives, restrictions, policies, procedures and any and all laws applicable to the Adviser (or any of its officials in their respective capacities as such), and its property (including any restrictions on leverage or speculation, if applicable) including, without limitation, the 1940 Act and the Advisers Act. (d) it has all governmental, regulatory, self-regulatory, and exchange licenses, registrations, memberships, and approvals required to act as investment adviser to the Fund and it will obtain and maintain any such required licenses, registrations, memberships, and approval. (e) it is registered as an investment adviser under the Advisers Act. (f) it is registered with the CFTC as a commodity pool operator and that it is a member of the National Futures Association in such capacity. The Adviser represents, warrants and agrees that it will operate the Fund in compliance with CFTC Rule 4.12(c)(3) and it will operate the Subsidiary in compliance with CFTC Rule 4.7. The Adviser represents and warrants that the Fund is a “qualified eligible person” as defined in CFTC Rule 4.7 and that the Adviser and the Fund consent to the Subadviser Assets being treated as an exempt account under CFTC Rule 4.7. The Adviser further represents that the Fund is an “eligible contract participant” as defined Section 1a(18) of the Commodity Exchange Act and in CFTC Rule 1.3(m). (g) it: (a) will continue to be registered in accordance with (v) and (vi), above, for so long as this Agreement remains in effect; (b) is not prohibited by the 1940 Act or the Advisers Act from performing the services contemplated by this Agreement; (c) has appointed a Chief Compliance Officer under Rule 206(4)-7 under the Advisers Act; (d) has met and will seek to continue to meet for so long as this Agreement remains in effect, any applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency, with which the failure to comply would reasonably be expected to result in a material adverse effect on the Adviser’s ability to provide services to the Fund; and (e) will promptly notify the Subadviser of the occurrence of any event that would disqualify the Adviser from serving as investment adviser of a registered investment company pursuant to Section 9(a) of the 1940 Act. (h) it has the authority under the Advisory Agreement to appoint the Subadviser. (i) it has received a copy of Parts 2A and 2B of the Subadviser’s Form ADV prior to the execution of this Agreement. (j) to the best of the Adviser’s knowledge, there are no material pending, threatened, or contemplated actions, suits, proceedings, or investigations before or by any court, governmental, administrative or self-regulatory body, board of trade, exchange, or arbitration panel to which it or any of its directors, officers, employees, partners, shareholders, members or principals, or any of its affiliates is a party or to which it or its affiliates or any of its or its affiliates’ assets are subject which would in each case reasonably be expected to result in a material adverse effect on the Adviser’s ability to provide services to the Fund, nor has the Adviser or any of its affiliates received any notice of an investigation, inquiry, or dispute by any court, governmental, administrative, or self-regulatory body, board of trade, exchange, or arbitration panel regarding any of its or their activities which in each case would reasonably be expected to result in a material adverse effect on the Adviser’s ability to provide services to the Fund, or a material adverse change in the Adviser’s financial or business prospects that would reasonably be expected to materially impair the Adviser’s ability to discharge its obligations under this Agreement. (k) it shall promptly notify the Subadviser of any changes in the key personnel who are the principal executive officers of the Adviser. It shall promptly notify the Subadviser and the Trust of any event that could reasonably be deemed, once consummated, to result in a change in control of the Adviser as such term is defined under the 1940 Act as soon as it reasonably becomes aware of such potential change in control. (l) the information provided by the Adviser to the Subadviser in writing shall not, to the knowledge of the Adviser, contain an untrue statement of a material fact or omit to state a material fact necessary to make the information not misleading. (m) if, at any time during the term of this Agreement, it discovers any fact or omission, or any event or change of circumstances has occurred, which would make any of its representations and warranties in this Agreement inaccurate or incomplete in any material respect, it will provide prompt written notification to the Subadviser of such fact, omission, event, or change of circumstance, and the facts related thereto, and it is agreed that the failure to provide such notification of the failure to continue to be in compliance with the foregoing representations and warranties shall be deemed a material breach of this Agreement.

Representations and Warranties of Adviser. The Adviser represents and warrants to the Subadviser as follows: (a) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation, and is qualified in each jurisdiction in which failure to be so qualified would reasonably be expected to have a material adverse effect upon it. (b) it has all requisite power and authority to enter into and perform its obligations under this Agreement and has taken all necessary corporate action to authorize its execution, delivery and performance of this Agreement. The Adviser further represents that this Agreement has been duly and validly executed and delivered by it and is enforceable against it in accordance with its terms. (c) the investments contemplated under this Agreement do not violate, and are consistent in all material respects with, the investment management agreement(s) and any investment guidelines, objectives, restrictions, policies, procedures and any and all laws applicable to the Adviser (or any of its officials in their respective capacities as such), and its property (including any restrictions on leverage or speculation, if applicable) including, without limitation, the 1940 Act and the Advisers Act. (d) it has all governmental, regulatory, self-regulatory, and exchange licenses, registrations, memberships, and approvals required to act as investment adviser to the Fund and it will obtain and maintain any such required licenses, registrations, memberships, and approval. (e) it is registered as an investment adviser under the Advisers Act.; (f) it is registered with the CFTC as a commodity pool operator and that it is a member of the National Futures Association in such capacity. The Adviser represents, warrants and agrees that it will operate the US Fund in compliance with CFTC Rule 4.12(c)(3) and it will operate the Subsidiary Fund in compliance with CFTC Rule 4.7. The Adviser represents and warrants that each of the US Fund and the Fund is a “qualified eligible person” as defined in CFTC Rule 4.7 4.7, and that the Adviser and the US Fund and the Fund consent to the Subadviser Assets being treated as an exempt account under CFTC Rule 4.7. The Adviser further represents that each of the US Fund and the Fund is an “eligible contract participant” as defined in Section 1a(18) of the Commodity Exchange Act and in CFTC Rule 1.3(m). (g) it: (a) will continue to be registered in accordance with (vd), (e) and (vi), f) above, for so long as this Agreement remains in effect; (b) is not prohibited by the 1940 Act or the Advisers Act from performing the services contemplated by this Agreement; (c) has appointed a Chief Compliance Officer under Rule 206(4)-7 under the Advisers Act; (d) has met and will seek to continue to meet for so long as this Agreement remains in effect, any applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency, with which the failure to comply would reasonably be expected to result in a material adverse effect on the Adviser’s ability to provide services to the Fund; and (e) will promptly notify the Subadviser of the occurrence of any event that would disqualify the Adviser from serving as investment adviser of a registered investment company pursuant to Section 9(a) of the 1940 Act. (h) it has the authority under the Advisory Agreement to appoint the Subadviser. (i) it has received a copy of Parts 2A and 2B of the Subadviser’s Form ADV prior to the execution of this Agreement. (j) to the best of the Adviser’s knowledge, there are no material pending, threatened, or contemplated actions, suits, proceedings, or investigations before or by any court, governmental, administrative or self-regulatory body, board of trade, exchange, or arbitration panel to which it or any of its directors, officers, employees, partners, shareholders, members or principals, or any of its affiliates is a party or to which it or its affiliates or any of its or its affiliates’ assets are subject which would in each case reasonably be expected to result in a material adverse effect on the Adviser’s ability to provide services to the Fund, nor has the Adviser or any of its affiliates received any notice of an investigation, inquiry, or dispute by any court, governmental, administrative, or self-regulatory body, board of trade, exchange, or arbitration panel regarding any of its or their activities which in each case would reasonably be expected to result in a material adverse effect on the Adviser’s ability to provide services to the Fund, or a material adverse change in the Adviser’s financial or business prospects that would reasonably be expected to materially impair the Adviser’s ability to discharge its obligations under this Agreement. (k) it shall promptly notify the Subadviser of any changes in the key personnel who are the principal executive officers of the Adviser. It shall promptly notify the Subadviser and the Trust Fund of any event that could reasonably be deemed, once consummated, to result in a change in control of the Adviser as such term is defined under the 1940 Act as soon as it reasonably becomes aware of such potential change in control. (l) the information provided by the Adviser to the Subadviser in writing shall not, to the knowledge of the Adviser, contain an untrue statement of a material fact or omit to state a material fact necessary to make the information not misleading. (m) if, at any time during the term of this Agreement, it discovers any fact or omission, or any event or change of circumstances has occurred, which would make any of its representations and warranties in this Agreement inaccurate or incomplete in any material respect, it will provide prompt written notification to the Subadviser of such fact, omission, event, or change of circumstance, and the facts related thereto, and it is agreed that the failure to provide such notification of the failure to continue to be in compliance with the foregoing representations and warranties shall be deemed a material breach of this Agreement.

Representations and Warranties of Adviser. The Adviser represents represents, warrants and warrants to the Subadviser agrees as follows: (a) it The Adviser (i) is duly organized, validly existing, existing and in good standing under the laws of the jurisdiction of its incorporationorganization, (ii) has full corporate power and authority to execute and deliver this Agreement and to perform the services contemplated hereunder, and is qualified (iii) has all internal approval and controls necessary to perform its obligations under, and to comply with the representations, warranties and covenants made by it, in each jurisdiction in which failure to be so qualified would reasonably be expected to have a material adverse effect upon itthis Agreement. (b) it has all requisite power and authority to enter into and perform its obligations under this Agreement and has taken all necessary corporate action to authorize its execution, delivery and performance of this Agreement. The Adviser further represents that this Agreement has been duly and validly executed and delivered by it and is enforceable against it in accordance with its terms. (c) the investments contemplated under this Agreement do not violate, and are consistent in all material respects with, the investment management agreement(s) and any investment guidelines, objectives, restrictions, policies, procedures and any and all laws applicable to the Adviser (or any of its officials in their respective capacities as such), and its property (including any restrictions on leverage or speculation, if applicable) including, without limitation, the 1940 Act and the Advisers Act. (d) it has all governmental, regulatory, self-regulatory, and exchange licenses, registrations, memberships, and approvals required to act as investment adviser to the Fund and it will obtain and maintain any such required licenses, registrations, memberships, and approval. (e) it is registered as an investment adviser under the Advisers Act. (f) it is registered with the CFTC as a commodity pool operator , and that it is a member of the National Futures Association in such capacity. The Adviser represents, warrants and agrees that it will operate the Fund in compliance with CFTC Rule 4.12(c)(3) and it will operate the Subsidiary in compliance with CFTC Rule 4.7. The Adviser represents and warrants that the Fund is a “qualified eligible person” as defined in CFTC Rule 4.7 and that the Adviser and the Fund consent to the Subadviser Assets being treated as an exempt account under CFTC Rule 4.7. The Adviser further represents that the Fund is an “eligible contract participant” as defined Section 1a(18) of the Commodity Exchange Act and in CFTC Rule 1.3(m). (g) it: (a) will continue to be so registered in accordance with (v) and (vi), above, for so long as while this Agreement remains is in effect; . (bc) The Adviser is not prohibited by the 1940 Act or the Advisers Act from performing the services contemplated by this Agreement; (c) Agreement and has appointed a Chief Compliance Officer under Rule 206(4)-7 under the Advisers Act; (d) has met met, and will seek to continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agencyorganization, necessary to be met in order to perform the services contemplated by this Agreement. The Adviser will comply with which all applicable state and federal laws, rules and regulations in connection with the failure to comply would reasonably be expected to result performance of its obligations under this Agreement, including, but not limited to, any applicable U.S. sanctions laws, rules and regulations. (d) The Adviser shall, in a material adverse effect on the Adviser’s ability to provide services to the Fund; and commercially reasonable period of time, notify Sub-Adviser (ei) will promptly notify the Subadviser of the occurrence of any event that would disqualify the Adviser from serving as an investment adviser of a registered an investment company pursuant to Section 9(a) of the 1940 ActAct or otherwise, (ii) in the event the Commission or other governmental authority has: censured the Adviser; placed limitations upon its activities, functions or operations; or has commenced proceedings or an investigation that may result in any of these actions or (iii) upon having a reasonable basis for believing that the Portfolio has ceased to qualify as a regulated investment company under Subchapter M of the Code. For the avoidance of doubt, the Adviser is not responsible for notifying the Sub-Adviser of routine periodic examinations of the Adviser by the Division of Examinations of the Securities and Exchange Commission (“SEC”) or the results of such examinations. (e) The Portfolio is and will continue to be the owner of all assets for which Adviser delegates investment discretion to Sub-Adviser from time to time, and there are and will continue to be no restrictions on the pledge, hypothecation, transfer, sale or public distribution of such assets. (f) Adviser is establishing and will be maintaining the Portfolio’s account with Sub-Adviser solely for the purpose of investing the relevant assets and not with a view to obtaining information regarding portfolio holdings or investment decisions in order to effect securities transactions based upon such information or to provide such information to another party, and that Adviser and its employees, officers and directors shall not use account holdings information for any of the foregoing purposes. (g) The Adviser will periodically provide to Sub-Adviser with a list of the affiliates of Adviser or the Portfolio to which investment restrictions apply. (h) it has The Adviser will specifically identify in writing (i) all publicly traded companies that issue securities in which the authority under Portfolio may not invest, together with ticker symbols for all such companies, and (ii) any affiliated brokers and any restrictions that apply to the Advisory Agreement to appoint the Subadviseruse of those brokers by Sub-Adviser. (i) it has received a A copy of Parts 2A and 2B of the Subadviser’s Form ADV prior to current compliance procedures for the execution of this AgreementPortfolio. (j) The Board has approved the appointment of Sub-Adviser pursuant to this Agreement. The Adviser shall notify the best Sub-Adviser within a reasonable period of the Adviser’s knowledge, there are no material pending, threatened, or contemplated actions, suits, proceedings, or investigations before or by time if it becomes aware that any court, governmental, administrative or self-regulatory body, board of trade, exchange, or arbitration panel to which it or any of its directors, officers, employees, partners, shareholders, members or principals, or any of its affiliates is a party or to which it or its affiliates or any of its or its affiliates’ assets are subject which would in each case reasonably be expected to result in a material adverse effect on the Adviser’s ability to provide services to the Fund, nor has the Adviser or any of its affiliates received any notice of an investigation, inquiry, or dispute by any court, governmental, administrative, or self-regulatory body, board of trade, exchange, or arbitration panel regarding any of its or their activities which in each case would reasonably be expected to result in a material adverse effect on the Adviser’s ability to provide services to the Fund, or a material adverse change in the Adviser’s financial or business prospects that would reasonably be expected to materially impair the Adviser’s ability to discharge its obligations representation and warranty under this AgreementAgreement is no longer accurate. (k) it shall promptly notify the Subadviser of any changes in the key personnel who are the principal executive officers of the Adviser. It shall promptly notify the Subadviser and the Trust of any event that could reasonably be deemed, once consummated, to result in a change in control of the Adviser as such term is defined under the 1940 Act as soon as it reasonably becomes aware of such potential change in control. (l) the information provided by the Adviser to the Subadviser in writing shall not, to the knowledge of the Adviser, contain an untrue statement of a material fact or omit to state a material fact necessary to make the information not misleading. (m) if, at any time during the term of this Agreement, it discovers any fact or omission, or any event or change of circumstances has occurred, which would make any of its representations and warranties in this Agreement inaccurate or incomplete in any material respect, it will provide prompt written notification to the Subadviser of such fact, omission, event, or change of circumstance, and the facts related thereto, and it is agreed that the failure to provide such notification of the failure to continue to be in compliance with the foregoing representations and warranties shall be deemed a material breach of this Agreement.

Representations and Warranties of Adviser. The Adviser represents represents, warrants and warrants to the Subadviser agrees as follows: (a) it each Portfolio is duly organizeda “qualified institutional buyer” (“QIB”) as defined in Rule 144A under the Securities Act of 1933, validly existingas amended, and in good standing under the laws of Adviser will promptly notify the jurisdiction of its incorporation, and is qualified in each jurisdiction in which failure Sub-Adviser if the Portfolios cease to be so qualified would reasonably be expected to have a material adverse effect upon itQIB. (b) it has all requisite power and authority to enter into and perform its obligations under this Agreement and has taken all necessary corporate action to authorize its execution, delivery and performance of this Agreement. The Adviser further represents that this Agreement has been duly and validly executed and delivered by it and is enforceable against it in accordance with its terms. (c) the investments contemplated under this Agreement do not violate, and are consistent in all material respects with, the investment management agreement(s) and any investment guidelines, objectives, restrictions, policies, procedures and any and all laws applicable to the Adviser (or any of its officials in their respective capacities as such), and its property (including any restrictions on leverage or speculation, if applicable) including, without limitation, the 1940 Act and the Advisers Act. (d) it has all governmental, regulatory, self-regulatory, and exchange licenses, registrations, memberships, and approvals required to act as investment adviser to the Fund and it will obtain and maintain any such required licenses, registrations, memberships, and approval. (e) it is registered as an investment adviser under the Advisers Act. (f) it is registered with the CFTC as a commodity pool operator and that it is a member of the National Futures Association in such capacity. The Adviser represents, warrants and agrees that it will operate the Fund in compliance with CFTC Rule 4.12(c)(3) and it will operate the Subsidiary in compliance with CFTC Rule 4.7. The Adviser represents and warrants that the Fund each Portfolio is a “qualified eligible person” (“QEP”) as defined in Commodity Futures Trading Commission Rule 4.7 (“CFTC Rule 4.7 4.7”), and that the Adviser will promptly notify the Sub-Adviser if the Portfolios cease to be a QEP, and the Fund consent hereby consents to the Subadviser Assets being be treated as an “exempt account account” under CFTC Rule 4.7. The Adviser further represents that the Fund is an “eligible contract participant” as defined Section 1a(18) of the Commodity Exchange Act and in CFTC Rule 1.3(m).; (g) it: (a) will continue to be registered in accordance with (v) and (vi), above, for so long as this Agreement remains in effect; (b) is not prohibited by the 1940 Act or the Advisers Act from performing the services contemplated by this Agreement; (c) the Adviser has appointed all necessary power and authority to execute, deliver and perform the Agreement and all transactions contemplated hereby, and such execution, delivery and performance will not violate any applicable law, rule, regulation, governing document (e.g., Certificate of Incorporation or Bylaws), contract or other material agreement binding upon the Adviser or Company; (d) the assets in the Portfolios are free from all liens and charges, and undertakes that no liens or charges will arise from the act or omissions of the Adviser or the Company which may prevent the Sub-Adviser from giving a Chief Compliance Officer under first priority lien or charge on the assets solely in connection with the Sub-Adviser’s authority to direct the deposit of margin or collateral to the extent necessary to meet the obligations of the Portfolios with respect to any investments made pursuant to the Prospectus; (e) the Adviser represents that after reasonable inquiry the Adviser believes that the source of its client funds is legitimate. Furthermore, the Adviser does not maintain or transact business for or with personal or commercial accounts held in the name(s) of individuals or organizations that the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) has listed as “Specially Designated Nationals and Blocked Persons” nor with any account in an embargoed country as determined by OFAC; (f) the Adviser shall provide the Sub-Adviser, in a manner and with such frequency as is mutually agreed upon by the parties, with a list of (i) each “government entity” (as defined in Rule 206(4)-7 206(4)-5 under the Advisers Act; (d) has met and will seek to continue to meet for so long as this Agreement remains ), invested in effect, any applicable federal or state requirements, or the applicable requirements Portfolios where the account of any regulatory or industry self-regulatory agency, with which the failure to comply would such government entity can reasonably be expected to result identified as being held in a material adverse effect the name of or for the benefit of such government entity on the Adviser’s ability to provide services to the Fund; and (e) will promptly notify the Subadviser records of the occurrence of any event that would disqualify the Adviser from serving as investment adviser of a registered investment company pursuant to Section 9(a) of the 1940 Act.fund or its transfer agent; and (hii) it each government entity that sponsors or establishes a 529 Plan and has selected the authority under the Advisory Agreement to appoint the Subadviser. (i) it has received a copy of Parts 2A and 2B of the Subadviser’s Form ADV prior to the execution of this Agreement. (j) to the best of the Adviser’s knowledge, there are no material pending, threatened, or contemplated actions, suits, proceedings, or investigations before or by any court, governmental, administrative or self-regulatory body, board of trade, exchange, or arbitration panel to which it or any of its directors, officers, employees, partners, shareholders, members or principals, or any of its affiliates is a party or to which it or its affiliates or any of its or its affiliates’ assets are subject which would in each case reasonably be expected to result in a material adverse effect on the Adviser’s ability to provide services to the Fund, nor has the Adviser or any of its affiliates received any notice of fund as an investigation, inquiry, or dispute by any court, governmental, administrative, or self-regulatory body, board of trade, exchange, or arbitration panel regarding any of its or their activities which in each case would reasonably be expected to result in a material adverse effect on the Adviser’s ability to provide services to the Fund, or a material adverse change in the Adviser’s financial or business prospects that would reasonably be expected to materially impair the Adviser’s ability to discharge its obligations under this Agreement. (k) it shall promptly notify the Subadviser of any changes in the key personnel who are the principal executive officers of the Adviser. It shall promptly notify the Subadviser and the Trust of any event that could reasonably be deemed, once consummated, to result in a change in control of the Adviser as such term is defined under the 1940 Act as soon as it reasonably becomes aware of such potential change in control. (l) the information provided by the Adviser to the Subadviser in writing shall not, to the knowledge of the Adviser, contain an untrue statement of a material fact or omit to state a material fact necessary to make the information not misleading. (m) if, at any time during the term of this Agreement, it discovers any fact or omission, or any event or change of circumstances has occurred, which would make any of its representations and warranties in this Agreement inaccurate or incomplete in any material respect, it will provide prompt written notification to the Subadviser of such fact, omission, event, or change of circumstance, and the facts related thereto, and it is agreed that the failure to provide such notification of the failure to continue option to be in compliance with the foregoing representations and warranties shall be deemed a material breach of this Agreement.offered by such 529 Plan;