Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Company and the Administrator that: a. This Agreement and the Advisory Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. The performance of the Advisor’s obligations under this Agreement and the consummation of the transactions set forth in this Agreement and in the Advisory Agreement are not contrary to the provisions of the Advisor’s formation documents, or to the best of its knowledge, any applicable statute, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound. b. The Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement including, without limitation, registration as a commodity trading advisor under the Commodity Exchange Act (the “CE Act”) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement. c. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications and the failure to be so qualified would materially adversely affect the Advisor’s ability to perform its obligations hereunder or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this Agreement. d. Subject to the NDA, and as requested of the Company, the Advisor has supplied to or made available for review by the Company (and if requested by the Company to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History which are in the Advisor’s possession or to which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained. e. The Advisor is not required to be registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), but may so register in the future. f. As of the date hereof, there has been no material adverse change in the Advisor’s Past Performance History which has not been communicated in writing to and received by the Company. g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, of the Advisor or in the earnings, affairs or business prospects of the Advisor, whether or not arising in the ordinary course of business. h. There is no pending, or to the best of the Advisor’s knowledge, threatened or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which the Advisor or its principals is a party, or to which any of the assets of the Advisor is subject which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability to discharge its obligations to the Company; furthermore, the Advisor has not received any notice of an investigation by the NFA regarding non-compliance with its rules or the CE Act, the Commodity Futures Trading Commission (the “CFTC”) regarding non-compliance with the CE Act or the rules and regulations thereunder or any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge its obligations under this Agreement or the Advisory Agreement.
Appears in 9 contracts
Samples: Advisory Agreement (World Monitor Trust Ii Series E), Advisory Agreement (Diversified Futures Fund L.P.), Advisory Agreement (Kenmar Global Trust)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Company Fund and the Administrator Sub-Advisor that:
a. This Agreement and the Advisory Agreement have (a) The Advisor has been duly and validly authorized, executed and delivered on behalf authorized by the Board of Trustees of the Fund to delegate to the Sub-Advisor the provision of investment services to the Fund as contemplated hereby.
(b) The Advisor has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the Investment Company Act and each will provide the Sub-Advisor with a copy of such code of ethics.
(c) The Advisor is a valid currently in material compliance and binding agreement enforceable in accordance shall at all times continue to materially comply with its terms. the requirements imposed upon the Advisor by applicable law and regulations.
(d) The performance of Advisor (i) is registered as an investment adviser under the Advisor’s obligations under Advisers Act and will continue to be so registered for so long as this Agreement and remains in effect; (ii) is not prohibited by the consummation of Investment Company Act, the transactions set forth in Advisers Act or other law, regulation or order from performing the services contemplated by this Agreement and in the Advisory Agreement are not contrary to the provisions of the Advisor’s formation documents, or Agreement; (iii) to the best of its knowledge, has met and will seek to continue to meet for so long as this Agreement is in effect, any other applicable statutefederal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency necessary to be met in order to perform the services contemplated by this Agreement; and (v) will promptly notify the Sub-Advisor of the occurrence of any event that would disqualify the Advisor from serving as investment manager of an investment company pursuant to Section 9(a) of the Investment Company Act or otherwise. The Advisor will also promptly notify the Sub-Advisor if it is served or otherwise receives notice of any action, suit, proceeding, inquiry or investigation, at law or regulation in equity, before or by any court, public board or body, involving the affairs of any jurisdictionthe Fund, provided, however, that routine regulatory examinations shall not be required to be reported by this provision.
(e) The execution, delivery and performance of this Agreement do not, and will not not, conflict with, or result in any violation, breach violation or default under under, any term or provision of any undertaking, contract, agreement or order to which the Advisor or any of its Affiliates are a party. It is a party or by which the Advisor is bound.
b. The Advisor has all governmental and regulatory licensesduly organized, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement including, without limitation, registration as a commodity trading advisor under the Commodity Exchange Act (the “CE Act”) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed in good standing and validly existing and in good standing under the laws of its jurisdiction of incorporation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications and the failure to be so qualified would materially adversely affect the Advisor’s ability to perform its obligations hereunder or under the Advisory Agreement. The Advisor has organization, with full capacity power and authority to conduct its business enter into and to perform its duties and obligations under this Agreement.
d. Subject to (f) It shall promptly notify the NDA, and as requested Sub-Advisor of the Company, the Advisor has supplied to or made available for review by the Company (and if requested by the Company to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History a change of circumstances which are in the Advisor’s possession or to which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The Advisor is not required to be registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), but may so register in the future.
f. As of the date hereof, there has been no material adverse change in the Advisor’s Past Performance History which has not been communicated in writing to and received by the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, of the Advisor or in the earnings, affairs or business prospects of the Advisor, whether or not arising in the ordinary course of business.
h. There is no pending, or to the best of the Advisor’s knowledge, threatened or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which the Advisor or its principals is a party, or to which would make any of the assets of the Advisor is subject which reasonably might be expected to result its representations and warranties in any material adverse change in the condition (financial this Section 8 inaccurate, misleading, untrue or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability to discharge its obligations to the Company; furthermore, the Advisor has not received any notice of an investigation by the NFA regarding non-compliance with its rules or the CE Act, the Commodity Futures Trading Commission (the “CFTC”) regarding non-compliance with the CE Act or the rules and regulations thereunder or any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge its obligations under this Agreement or the Advisory Agreementincomplete.
Appears in 7 contracts
Samples: Sub Advisory Agreement (FT Vest Total Return Income Fund: Series A4), Sub Advisory Agreement (FT Vest Hedged Equity Income Fund: Series A4), Sub Advisory Agreement (FT Vest Rising Dividend Achievers Total Return Fund)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Company Underwriter as follows:
(a) The Advisor is a corporation duly incorporated and validly existing in good standing under the laws of the Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Administrator that:
a. This Agreement Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the Advisory Agreement nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or to qualify does not have been duly and validly authorizeda material adverse effect on the condition (financial or other), executed and delivered on behalf business, prospects, properties, net assets or results of operations of the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. The performance or on the ability of the Advisor’s Advisor to perform its obligations under this Agreement and the Management Agreement.
(b) The Advisor is duly registered with the Commission as an investment advisor under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding or any facts or circumstances the existence of which could lead to any proceeding which might adversely affect the registration of the Advisor with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Advisor, threatened against the Advisor, or to which the Advisor or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that may reasonably be expected to involve a prospective material adverse change, in the condition (financial or other), business, prospects, properties, net assets or results of operations of the Advisor or on the ability of the Advisor to perform its obligations under this Agreement and the Management Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the performance of the Management Agreement by the Advisor, nor the consummation by the Advisor of the transactions set forth in this Agreement and in contemplated hereby or thereby (A) requires the Advisory Agreement are not contrary Advisor to obtain any consent, approval, authorization or other order of or registration or filing with, the provisions Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or by-laws, or other organizational documents, of the Advisor’s formation documents, Advisor or to the best (B) conflicts or will conflict with or constitutes or will constitute a breach of its knowledgeor a default under, any applicable statuteagreement, law indenture, lease or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order other instrument to which the Advisor is a party or by which it or any of its properties may be bound, or violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Advisor or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Advisor is boundsubject. The Advisor is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
b. (e) The execution and delivery of, and the performance by the Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform of its obligations under under, this Agreement and the Advisory Management Agreement have been duly and validly authorized by the Advisor, and this Agreement includingand the Management Agreement have been duly executed and delivered by the Advisor and each constitutes the valid and legally binding agreement of the Advisor, without limitationenforceable against the Advisor in accordance with its terms (subject to the qualification that the enforceability of the Advisor's obligations thereunder may be limited by bankruptcy, registration insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights, and to general principles of equity regardless of whether enforceability is considered in a proceeding in equity or at law), except as a commodity trading advisor under rights to indemnity and contribution hereunder may be limited by federal or state securities laws.
(f) The description of the Commodity Exchange Act Advisor in the Registration Statement and the Prospectus (the “CE Act”and any amendment or supplement thereto) complied and membership as a commodity trading advisor comply in all material respects with the National Futures Association provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(g) Except as disclosed in the “NFA”Registration Statement and the Prospectus (or any amendment or supplement to either of them), and it will maintain and renew any required licenses, registrations, approvals or memberships during subsequent to the term respective dates as of which such information is given in the Advisory Agreement.
c. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications Registration Statement and the failure Prospectus (or any amendment or supplement to be so qualified would materially adversely affect the Advisor’s ability to perform its obligations hereunder or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this Agreement.
d. Subject to the NDA, and as requested either of the Companythem), the Advisor has supplied to not incurred any liability or made available for review by the Company (and if requested by the Company to its designated auditor) all documentsobligation, statementsdirect or contingent, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History which are or entered into any transaction, not in the Advisor’s possession or to which it has access; provided, howeverordinary course of business, that is material to the Advisor may, in its sole discretion withhold from any such inspection or the identity of the clients for whom any such accounts are maintained.
e. The Advisor Trust and that is not required to be registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), but may so register disclosed in the future.
f. As of Registration Statement or the date hereof, there has been no material adverse change in the Advisor’s Past Performance History which has not been communicated in writing to Prospectus and received by the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change change, or any development involving or which may reasonably be expected to involve, a prospective material adverse change, in the condition, condition (financial or otherwiseother), business, prospects, properties, net assets or results of the Advisor or in the earnings, affairs or business prospects operations of the Advisor, whether or not arising in the ordinary course of business.
h. There is no pending, or to which, in each case, could have a material adverse effect on the best of the Advisor’s knowledge, threatened or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which the Advisor or its principals is a party, or to which any of the assets ability of the Advisor is subject which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability to discharge its obligations to the Company; furthermore, the Advisor has not received any notice of an investigation by the NFA regarding non-compliance with its rules or the CE Act, the Commodity Futures Trading Commission (the “CFTC”) regarding non-compliance with the CE Act or the rules and regulations thereunder or any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge perform its obligations under this Agreement or and the Advisory Management Agreement.
(i) The Advisor has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment thereto); (ii) the Advisor has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Advisor under any such permit; and (iii) except as described in the Prospectus (and any amendment or supplement thereto), none of such permits contains any restriction that is materially burdensome to the Advisor, except where the failure of (i), (ii), or (iii) to be accurate would not, individually or in the aggregate, have a Material Adverse Effect on the Advisor.
Appears in 3 contracts
Samples: Underwriting Agreement (Colonial High Income Municipal Trust), Underwriting Agreement (Colonial Investment Grade Municipal Trust), Underwriting Agreement (Colonial High Income Municipal Trust)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Company and the Administrator that:
a. This Agreement and the Advisory Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. The performance of the Advisor’s obligations under this Agreement and the consummation of the transactions set forth in this Agreement and in the Advisory Agreement are not contrary to the provisions of the Advisor’s formation documents, or to the best of its knowledge, any applicable statute, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
b. The Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement including, without limitation, registration as a commodity trading advisor under the Commodity Exchange Act (the “CE Act”) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications and the failure to be so qualified would materially adversely affect the Advisor’s ability to perform its obligations hereunder or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this Agreement.
d. Subject to the NDA, and as requested of the Company, the Advisor has supplied to or made available for review by the Company (and if requested by the Company to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History which are in the Advisor’s possession or to which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The Advisor is not required to be registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), but may so register in the future.
f. As of the date hereof, there has been no material adverse change in the Advisor’s Past Performance History which has not been communicated in writing to and received by the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, of the Advisor or in the earnings, affairs or business prospects of the Advisor, whether or not arising in the ordinary course of business.
h. There is no pending, or to the best of the Advisor’s knowledge, threatened or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which the Advisor or its principals is a party, or to which any of the assets of the Advisor is subject which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability to discharge its obligations to the Company; furthermore, the Advisor has not received any notice of an investigation by the NFA regarding non-compliance with its rules or the CE Act, the Commodity Futures Trading Commission (the “CFTC”) regarding non-non- compliance with the CE Act or the rules and regulations thereunder or any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge its obligations under this Agreement or the Advisory Agreement.
Appears in 3 contracts
Samples: Advisory Agreement (Diversified Futures Trust I), Advisory Agreement (Kenmar Global Trust), Advisory Agreement (Diversified Futures Fund L.P.)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to each Underwriter as follows:
(a) The Advisor is a corporation duly incorporated and validly existing in good standing under the Company laws of the Commonwealth of Massachusetts, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Administrator that:
a. This Agreement Prospectus (and any amendment or supplement to either of them), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the Advisory Agreement nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or to qualify does not have been duly and validly authorizeda material adverse effect on the condition (financial or other), executed and delivered on behalf business, prospects, properties, net assets or results of operations of the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. The performance or on the ability of the Advisor’s Advisor to perform its obligations under this Agreement and the Management Agreement.
(b) The Advisor is duly registered with the Commission as an investment advisor under the Advisers Act and is not prohibited by the Advisers Act, the Advisers Act Rules and Regulations, the 1940 Act or the 1940 Act Rules and Regulations from acting under the Management Agreement for the Trust as contemplated by the Prospectus (or any amendment or supplement thereto). There does not exist any proceeding or any facts or circumstances the existence of which could lead to any proceeding which might adversely affect the registration of the Advisor with the Commission.
(c) There are no legal or governmental proceedings pending or, to the knowledge of the Advisor, threatened against the Advisor, or to which the Advisor or any of its properties is subject, that are required to be described in the Registration Statement or the Prospectus (or any amendment or supplement to either of them) but are not described as required or that may reasonably be expected to involve a prospective material adverse change, in the condition (financial or other), business, prospects, properties, net assets or results of operations of the Advisor or on the ability of the Advisor to perform its obligations under this Agreement and the Management Agreement.
(d) Neither the execution, delivery or performance of this Agreement or the performance of the Management Agreement by the Advisor, nor the consummation by the Advisor of the transactions set forth in this Agreement and in contemplated hereby or thereby (A) requires the Advisory Agreement are not contrary Advisor to obtain any consent, approval, authorization or other order of or registration or filing with, the provisions Commission, the NASD, any state securities commission, any national securities exchange, any arbitrator, any court, regulatory body, administrative agency or other governmental body, agency or official or conflicts or will conflict with or constitutes or will constitute a breach of or a default under, the certificate of incorporation or by-laws, or other organizational documents, of the Advisor’s formation documents, Advisor or to the best (B) conflicts or will conflict with or constitutes or will constitute a breach of its knowledgeor a default under, any applicable statuteagreement, law indenture, lease or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order other instrument to which the Advisor is a party or by which it or any of its properties may be bound, or violates or will violate any statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Advisor or any of its properties or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Advisor is boundsubject. The Advisor is not subject to any order of any court or of any arbitrator, governmental authority or administrative agency.
b. (e) The execution and delivery of, and the performance by the Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform of its obligations under under, this Agreement and the Advisory Management Agreement have been duly and validly authorized by the Advisor, and this Agreement includingand the Management Agreement have been duly executed and delivered by the Advisor and, without limitationassuming due authorization, registration execution and delivery by the other parties thereto, each constitutes the valid and legally binding agreement of the Advisor, enforceable against the Advisor in accordance with its terms (subject to the qualification that the enforceability of the Advisor's obligations thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights, and to general principles of equity regardless of whether enforceability is considered in a proceeding in equity or at law), except as a commodity trading advisor under rights to indemnity and contribution hereunder may be limited by federal or state securities laws.
(f) The description of the Commodity Exchange Act Advisor in the Registration Statement and the Prospectus (the “CE Act”and any amendment or supplement thereto) complied and membership as a commodity trading advisor comply in all material respects with the National Futures Association provisions of the 1933 Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(g) Except as disclosed in the “NFA”Registration Statement and the Prospectus (or any amendment or supplement to either of them), and it will maintain and renew any required licenses, registrations, approvals or memberships during subsequent to the term respective dates as of which such information is given in the Advisory Agreement.
c. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications Registration Statement and the failure Prospectus (or any amendment or supplement to be so qualified would materially adversely affect the Advisor’s ability to perform its obligations hereunder or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this Agreement.
d. Subject to the NDA, and as requested either of the Companythem), the Advisor has supplied to not incurred any liability or made available for review by the Company (and if requested by the Company to its designated auditor) all documentsobligation, statementsdirect or contingent, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History which are or entered into any transaction, not in the Advisor’s possession or to which it has access; provided, howeverordinary course of business, that is material to the Advisor may, in its sole discretion withhold from any such inspection or the identity of the clients for whom any such accounts are maintained.
e. The Advisor Trust and that is not required to be registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), but may so register disclosed in the future.
f. As of Registration Statement or the date hereof, there has been no material adverse change in the Advisor’s Past Performance History which has not been communicated in writing to Prospectus and received by the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change change, or any development involving or which may reasonably be expected to involve, a prospective material adverse change, in the condition, condition (financial or otherwiseother), business, prospects, properties, net assets or results of the Advisor or in the earnings, affairs or business prospects operations of the Advisor, whether or not arising in the ordinary course of business.
h. There is no pending, or to which, in each case, could have a material adverse effect on the best of the Advisor’s knowledge, threatened or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which the Advisor or its principals is a party, or to which any of the assets ability of the Advisor is subject which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability to discharge its obligations to the Company; furthermore, the Advisor has not received any notice of an investigation by the NFA regarding non-compliance with its rules or the CE Act, the Commodity Futures Trading Commission (the “CFTC”) regarding non-compliance with the CE Act or the rules and regulations thereunder or any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge perform its obligations under this Agreement or and the Advisory Management Agreement.
(i) The Advisor has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its properties and to conduct its business in the manner described in the Prospectus (and any amendment thereto); (ii) the Advisor has fulfilled and performed all its material obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the Advisor under any such permit; and (iii) except as described in the Prospectus (and any amendment or supplement thereto), none of such permits contains any restriction that is materially burdensome to the Advisor, except where the failure of (i), (ii), or (iii) to be accurate would not, individually or in the aggregate, have a Material Adverse Effect on the Advisor.
Appears in 3 contracts
Samples: Underwriting Agreement (Colonial Insured Municipal Fund), Underwriting Agreement (Colonial New York Insured Municipal Fund), Underwriting Agreement (Colonial California Insured Municipal Fund)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Company Company, the Trustee and the Administrator that:
a. This Agreement and the Advisory Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. The performance of the Advisor’s obligations under this Agreement and the consummation of the transactions set forth in this Agreement and in the Advisory Agreement are not contrary to the provisions of the Advisor’s formation documents, or to the best of its knowledge, any applicable statute, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
b. The Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement including, without limitation, registration as a commodity trading advisor under the Commodity Exchange Act (the “CE Act”) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications and the failure to be so qualified would materially adversely affect the Advisor’s ability to perform its obligations hereunder or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this Agreement.
d. Subject to the NDAadequate assurances of confidentiality, and as requested of the Company, the Advisor has supplied to or made available for review by the Company (and if requested by the Company to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History which are in the Advisor’s possession or to which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The Advisor is not required to be registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), but may so register in the future.
f. As of the date hereof, there has been no material adverse change in the Advisor’s Past Performance History which has not been communicated in writing to and received by the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, of the Advisor or in the earnings, affairs or business prospects of the Advisor, whether or not arising in the ordinary course of business.
h. There is no pending, or to the best of the Advisor’s knowledge, threatened or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which the Advisor or its principals is a party, or to which any of the assets of the Advisor is subject which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability to discharge its obligations to the Company; furthermore, the Advisor has not received any notice of an investigation by the NFA regarding non-compliance with its rules or the CE Act, the Commodity Futures Trading Commission (the “CFTC”) regarding non-compliance with the CE Act or the rules and regulations thereunder or any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge its obligations under this Agreement or the Advisory Agreement.
Appears in 3 contracts
Samples: Advisory Agreement (World Monitor Trust Ii Series D), Advisory Agreement (World Monitor Trust Ii Series F), Advisory Agreement (World Monitor Trust Series A)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Company Selling Agent, Series J, the Trust and the Administrator Managing Owner that:
a. All information and data made available by the Advisor to the Trust and the Managing Owner for purposes of preparing the Registration Statement, as of its effective date and the Prospectus as of the Closing Date to (i) the Advisor and its affiliates, and the controlling persons, shareholders, directors, officers and employees of any of the foregoing, (ii) the Advisor’s Trading Approach (as defined in the Advisory Agreement) and (iii) the actual past performance of discretionary accounts directed by the Advisor or any principal thereof, including the notes to the tables reflecting such actual past performance (hereinafter referred to as the Advisor’s “Past Performance History”) are complete and accurate in all material respects, and do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they were made) not misleading. The Advisor also represents and warrants as to the accuracy and completeness in all material respects of the underlying data made available by the Advisor to the Trust and the Managing Owner for purposes of preparing the pro forma performance tables. Except as specifically stated herein, it is understood that no representation or warranty is being made with respect to the calculations used to create the pro forma performance table or notes thereto. The term “principal” in this Agreement shall have the same meaning as that term in Commodity Futures Trading Commission (the “CFTC”) Regulation § 4.10(e) under the Commodity Exchange Act, as amended (the “CE Act”).
b. The Advisor will not distribute the Registration Statement, the Prospectus and/or the selling materials related thereto, except as may be requested by the Managing Owner in connection with “road show” presentations or otherwise.
c. This Agreement and the Advisory Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. The performance of the Advisor’s obligations under this Agreement and the consummation of the transactions set forth in this Agreement, in the Advisory Agreement and in the Advisory Agreement Registration Statement as of its effective date and Prospectus as of the Closing Date are not contrary to the provisions of the Advisor’s formation documents, or to the best of its knowledge, any applicable statute, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
b. d. The Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement and to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date including, without limitation, registration as a commodity trading advisor under the Commodity Exchange CE Act (the “CE Act”) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. e. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation limited partnership duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation formation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications and the failure to be so qualified would materially adversely affect the Advisor’s ability to perform its obligations hereunder or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this AgreementAgreement and to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date.
d. f. Subject to the NDAadequate assurances of confidentiality, and as requested of the CompanyManaging Owner, the Advisor has supplied to or made available for review by the Company Managing Owner and the Selling Agent (and if requested by the Company Managing Owner and the Selling Agent to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History past performance history in the Registration Statement as of its effective date and the Prospectus as of the Closing Date which are in the Advisor’s possession or to which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The g. Without limiting the generality of paragraph a. of this Section 1, neither the Advisor nor any of its principals has managed, controlled or directed, on an overall discretionary basis, the trading for any commodity account which is not required by CFTC regulations and the rules and regulations under the 1933 Act to be registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), but may so register disclosed in the futureRegistration Statement as of its effective date and the Prospectus as of the Closing Date which has not been provided by the Advisor to the Trust and the Managing Owner for inclusion in the Registration Statement as of its effective date and in the Prospectus as of the Closing Date as required.
f. h. As of the date hereof, there has been no material adverse change in the Advisor’s Past Performance History past performance history provided by the Advisor to the Trust and the Managing Owner for inclusion in the Registration Statement or in the Prospectus under the caption “XXXXXX CAPITAL MANAGEMENT, L.P.” which has not been communicated in writing to and received by the CompanyManaging Owner and the Selling Agent or their counsel.
g. i. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, (i) there has not been any material adverse change in the condition, financial or otherwise, of the Advisor or in the earnings, affairs or business prospects of the Advisor, whether or not arising in the ordinary course of business, and (ii) there have not been any material transactions entered into by the Advisor other than those in the ordinary course of its business.
h. There j. Except as disclosed in the Registration Statement and in the Prospectus, there is no pending, or to the best of the Advisor’s its knowledge, threatened or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which the Advisor or its principals is a party, or to which any of the assets of the Advisor is subject which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to (A) impair materially the Advisor’s ability to discharge its obligations to Series J or (B) result in a matter which would require disclosure in the CompanyRegistration Statement and/or Prospectus; furthermore, furthermore the Advisor has not received any notice of an investigation by (i) the NFA regarding non-compliance with its rules or the CE Act, (ii) the Commodity Futures Trading Commission (the “CFTC”) CFTC regarding non-compliance with the CE Act Act, or the rules and regulations thereunder or (iii) any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge its obligations under this Agreement or the Advisory Agreement.
Appears in 2 contracts
Samples: Advisory Agreement (World Monitor Trust III - Series J), Advisory Agreement (World Monitor Trust III - Series J)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Company Sub-Advisor and the Administrator thatTrust as follows:
a. This Agreement and the Advisory Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. The performance of the Advisor’s obligations under this Agreement and the consummation of the transactions set forth in this Agreement and in the Advisory Agreement are not contrary to the provisions of the Advisor’s formation documents, or to the best of its knowledge, any applicable statute, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
b. The Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement including, without limitation, registration as a commodity trading advisor under the Commodity Exchange Act (the “CE Act”a) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications and the failure to be so qualified would materially adversely affect the Advisor’s ability to perform its obligations hereunder or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this Agreement.
d. Subject to the NDA, and as requested of the Company, the Advisor has supplied to or made available for review by the Company (and if requested by the Company to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History which are in the Advisor’s possession or to which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The Advisor is not required to be registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), but may so register in ;
(b) The Advisor is a corporation duly organized and validly existing under the future.
f. As laws of the date hereofState of Delaware, there has been no material adverse change in with the power to own and possess its assets and carry on its business as it is now being conducted;
(c) The execution, delivery and performance by the Advisor of this Agreement are within the Advisor’s Past Performance History which has not 's powers and have been communicated duly authorized by all necessary action on the part of its Board of Directors, and no action by or in writing to and received by respect of, or filing with, any governmental body, agency or official is required on the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, part of the Advisor for the execution, delivery and performance by the Advisor of this Agreement, and the execution, delivery and performance by the Advisor of this Agreement do not contravene or in constitute a default under (i) any provision of applicable law, rule or regulation; (ii) the earningsAdvisor's governing instruments; or (iii) any agreement, affairs judgment, injunction, order, decree or business prospects other instrument binding upon the Advisor;
(d) The Advisor acknowledges that it received a copy of the Sub-Advisor's Form ADV (a copy of which is attached as Exhibit B) prior to the execution of this Agreement. The Advisor has furnished the Sub-Advisor a current copy of the prospectus and statement of additional information of the Funds and agrees during the continuance of this Agreement to furnish the Sub-Advisor copies of any revisions or supplement thereto at, or, if practicable, before the time the revisions or supplements become effective. No revisions shall be made nor supplements issued regarding the Sub-Advisor without the prior review and approval of the Sub-Advisor, such approval not to be unreasonably withheld. No written materials naming or relating to the Sub-Advisor, its employees or its affiliated companies, other than materials provided or approved by the Sub-Advisor (such approval not to be unreasonably withheld), shall be used by the Advisor, whether the Funds or not arising their affiliates in offering or marketing shares of the ordinary course Funds without the Sub-Advisor's prior written approval. The Sub-Advisor shall endeavor to review all materials requiring approval by the Sub-Advisor within five days of business.
h. There is no pending, or its submission to the best Sub-Advisor. The Advisor agrees to furnish the Sub-Advisor with minutes of meetings of the Directors of the Funds to the extent they may affect the duties of the Sub-Advisor’s knowledge, threatened and with copies of any further materials or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to information which the Sub-Advisor or may reasonably request to enable it to perform its principals is a party, or to which any of the assets of the Advisor is subject which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability to discharge its obligations to the Company; furthermore, the Advisor has not received any notice of an investigation by the NFA regarding non-compliance with its rules or the CE Act, the Commodity Futures Trading Commission (the “CFTC”) regarding non-compliance with the CE Act or the rules and regulations thereunder or any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge its obligations functions under this Agreement or the Advisory Agreement.
Appears in 2 contracts
Samples: Sub Advisory Agreement (MGI Funds), Sub Advisory Agreement (MGI Funds)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Company Sub-Advisor and the Administrator thatTrust as follows:
a. This Agreement and the Advisory Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. The performance of the Advisor’s obligations under this Agreement and the consummation of the transactions set forth in this Agreement and in the Advisory Agreement are not contrary to the provisions of the Advisor’s formation documents, or to the best of its knowledge, any applicable statute, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
b. The Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement including, without limitation, registration as a commodity trading advisor under the Commodity Exchange Act (the “CE Act”a) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications and the failure to be so qualified would materially adversely affect the Advisor’s ability to perform its obligations hereunder or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this Agreement.
d. Subject to the NDA, and as requested of the Company, the Advisor has supplied to or made available for review by the Company (and if requested by the Company to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History which are in the Advisor’s possession or to which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The Advisor is not required to be registered as an investment adviser under the Investment Advisers Act;
(b) The Advisor is a corporation duly organized and validly existing under the laws of the State of California with the power to own and possess its assets and carry on its business as it is now being conducted;
(c) The execution, delivery and performance by the Advisor of this Agreement are within the Advisor’s powers and have been duly authorized by all necessary action on the part of its Board of Directors, and no action by or in respect of, or filing with, any governmental body, agency or official is required on the part of the Advisor for the execution, delivery and performance by the Advisor of this Agreement, and the execution, delivery and performance by the Advisor of this Agreement do not contravene or constitute a default under: (i) any provision of applicable law, rule or regulation, (ii) the Advisor’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Advisor;
(d) The Form ADV of the Advisor as provided to the Sub-Advisor is a true and complete copy of the form as currently filed with the SEC and the information contained therein is accurate and complete in all material respects and does not omit to state any material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading;
(e) The Advisor shall provide to the Sub-Advisor a complete copy of each amendment to its for ADV;
(f) The Advisor acknowledges that it received a copy of the Sub-Advisor’s Form ADV (a copy of which is attached as Exhibit B) prior to the execution of this Agreement;
(g) The Advisor and the Trust have duly entered into the Advisory Agreement pursuant to which the Trust authorized the Advisor to enter into this Agreement;
(h) The Trust and the Adviser agree that the Sub-Adviser shall have no responsibility or liability arising out of any non-compliance by the Fund or the Adviser with anti-money laundering regulations;
(i) The Adviser hereby certifies that the Adviser has implemented an anti-money laundering program and a customer identification program (“CIP”) that each comply with the requirements of applicable law, including the Bank Secrecy Act and U.S.A. PATRIOT of 19402001 and the regulations promulgated thereunder, and that the Adviser will perform the requirements of such programs with respect to the investors in the Fund; and
(j) The Advisor and the Trust have policies and procedures designed to detect and deter disruptive trading practices, including “market timing”, and Advisor and Trust agree that they will continue to enforce and abide by such policies and procedures, as amended (the “Advisers Act”)from time to time, but may so register in the future.
f. As of the date hereof, there has been no material adverse change in the Advisor’s Past Performance History which has not been communicated in writing and comply with all existing and future laws relating to and received by the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, of the Advisor or in the earnings, affairs or business prospects of the Advisor, whether or not arising in the ordinary course of business.
h. There is no pending, such matters or to the best purchase and sale of the Advisor’s knowledge, threatened or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which the Advisor or its principals is a party, or to which any of the assets of the Advisor is subject which reasonably might be expected to result in any material adverse change interests in the condition (financial or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability to discharge its obligations to the Company; furthermore, the Advisor has not received any notice of an investigation by the NFA regarding non-compliance with its rules or the CE Act, the Commodity Futures Trading Commission (the “CFTC”) regarding non-compliance with the CE Act or the rules and regulations thereunder or any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge its obligations under this Agreement or the Advisory AgreementFund generally.
Appears in 2 contracts
Samples: Sub Advisory Agreement (GPS Funds I), Sub Advisory Agreement (Assetmark Funds)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Company and the Administrator that:
a. This Agreement and the Advisory Agreement have been duly and validly authorized, executed and delivered each Underwriter on behalf of the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. The performance of the Advisor’s obligations under this Agreement and the consummation of the transactions set forth in this Agreement and in the Advisory Agreement are not contrary to the provisions of the Advisor’s formation documents, or to the best of its knowledge, any applicable statute, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
b. The Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement including, without limitation, registration as a commodity trading advisor under the Commodity Exchange Act (the “CE Act”) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. On the date hereof, and shall be deemed to represent and warrant to each Underwriter on the Advisor isClosing Date and the Additional Closing Date, and at all times during as the term of this Agreement will case may be, a corporation that:
(a) The information regarding the Advisor, set forth under the headings “Prospectus Summary” and “Investment Policies, Policies with Respect to Certain Activities and Market Risk” in the Registration Statement, the Time of Sale Information and the Prospectus (collectively, the “Advisor Disclosures”) is true and correct in all material respects.
(b) The Advisor has been duly formed and is validly existing and as a limited liability company in good standing under the laws of its jurisdiction the State of incorporation Delaware and in good standing and qualified to do business in each jurisdiction in which has the nature or conduct of its business requires such qualifications and the failure to be so qualified would materially adversely affect the Advisor’s ability to perform its obligations hereunder or under the Advisory Agreement. The Advisor has full capacity limited liability company power and authority to conduct its business as described in the Registration Statement, the Time of Sale Information and the Prospectus and to enter into and perform its obligations under this Agreement.
d. Subject to the NDA, Agreement and as requested of the Company, the Advisor has supplied to or made available for review by the Company (and if requested by the Company to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History which are in the Advisor’s possession or to which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The Advisor is not required to be registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), but may so register in the future.
f. As of the date hereof, there has been no material adverse change in the Advisor’s Past Performance History which has not been communicated in writing to and received by the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement; and the Advisor is duly qualified as a foreign limited liability company to transact business and is in good standing in each other jurisdiction in which such qualification is required, there has not been any except where the failure to so qualify or to be in good standing would not, individually or in the aggregate, reasonably be expected to result in a material adverse change in effect on the condition, financial business, properties, assets, net worth, results of operations or otherwise, of the Advisor or in the earnings, affairs or business prospects of the Advisor, whether taken as a whole (financial or otherwise) (an “Advisor Material Adverse Effect”).
(c) This Agreement has been duly authorized, executed and delivered by the Advisor.
(d) The Advisory Agreement has been duly authorized, executed and delivered by the Advisor and constitutes a valid and binding agreement of the Advisor in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general equitable principles and the discretion of the court before which any proceeding may be brought.
(e) The limited liability company interests of the Advisor are indirectly owned by Inland Real Estate Investment Corporation free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party.
(f) The Advisor is not arising (i) in violation of its organizational documents or (ii) in default in the ordinary course performance or observance of business.
h. There any obligation, agreement, covenant or condition contained in any agreements to which it is no pendingbound, or which any of its property or assets is subject, except, in the case of (ii) above, for such defaults that would not, individually or in the aggregate, reasonably be expected to result in an Advisor Material Adverse Effect; and the best execution, delivery and performance of this Agreement and the Advisory Agreement, as applicable, and the consummation of the Advisor’s knowledgetransactions contemplated herein and therein and in the Registration Statement, threatened the Time of Sale Information and the Prospectus and compliance by the Advisor with its obligations hereunder and thereunder have been duly authorized by all necessary limited liability company action and do not and will not, whether with or contemplated actionwithout the giving of notice or passage of time or both, suit conflict with or proceeding before constitute a breach of, or by default or an Advisor Debt Repayment Triggering Event under, or result in the creation or imposition of any courtlien, governmental, administrative charge or self-regulatory body encumbrance upon any property or arbitration panel assets of the Advisor pursuant to any agreement to which the Advisor or its principals it is a party, bound or to which any of the its property or assets of the Advisor is subject which (except for such conflicts, breaches, defaults or Debt Repayment Triggering Event or liens, charges or encumbrances that would not, individually or in the aggregate, reasonably might be expected to result in any material adverse change in the condition (financial or otherwisean Advisor Material Adverse Effect), business or prospects nor will such action result in any violation of the Advisor or which reasonably might be expected to materially adversely affect any provisions of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability to discharge its obligations to the Company; furthermore, the Advisor has not received any notice of an investigation by the NFA regarding non-compliance with its rules or the CE Act, the Commodity Futures Trading Commission (the “CFTC”) regarding non-compliance with the CE Act or the rules and regulations thereunder or any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge its obligations under this Agreement or the Advisory Agreement.limited partnership
Appears in 2 contracts
Samples: Underwriting Agreement (InPoint Commercial Real Estate Income, Inc.), Underwriting Agreement (InPoint Commercial Real Estate Income, Inc.)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Company Sub-Advisor and the Administrator thatFund as follows:
a. This Agreement and the Advisory Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. The performance of the Advisor’s obligations under this Agreement and the consummation of the transactions set forth in this Agreement and in the Advisory Agreement are not contrary to the provisions of the Advisor’s formation documents, or to the best of its knowledge, any applicable statute, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
b. The Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement including, without limitation, registration as a commodity trading advisor under the Commodity Exchange Act (the “CE Act”a) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications and the failure to be so qualified would materially adversely affect the Advisor’s ability to perform its obligations hereunder or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this Agreement.
d. Subject to the NDA, and as requested of the Company, the Advisor has supplied to or made available for review by the Company (and if requested by the Company to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History which are in the Advisor’s possession or to which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The Advisor is not required to or will at all necessary times be registered as an investment adviser under the Investment Advisers Act and shall maintain such registration during the term of 1940, as amended this Agreement;
(b) The Advisor is a limited liability company duly organized and validly existing under the “Advisers Act”), but may so register in the future.
f. As laws of the date hereofState of Delaware with the power to own and possess its assets and carry on its business as it is now being conducted;
(c) The execution, there has been no material adverse change in delivery and performance by the Advisor of this Agreement are within the Advisor’s Past Performance History which has not powers and have been communicated duly authorized by all necessary action and no action by or in writing to and received by respect of, or filing with, any governmental body, agency or official is required on the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, part of the Advisor for the execution, delivery and performance by the Advisor of this Agreement, and the execution, delivery and performance by the Advisor of this Agreement do not contravene or constitute a default under (i) any provision of applicable law, rule or regulation, (ii) the Advisor’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Advisor;
(d) The Advisor agrees that its activities shall at all times comply in all material respects with all applicable federal and state laws governing its operations and investments;
(e) The Advisor agrees that it will promptly notify the earnings, affairs or business prospects Sub-Advisor of the Advisor, whether or not arising in occurrence of any event that would disqualify it from serving as an investment advisor to an investment company pursuant to Section 9(a) of the ordinary course of business.1940 Act;
h. There is no pending, or to the best (f) Part 2 of the Advisor’s knowledgemost recent Form ADV filed with the SEC pursuant to Section 203(c) of the Advisers Act, threatened or contemplated actionpreviously provided to the Sub-Advisor, suit or proceeding before or by any court, governmental, administrative or selfis a true and complete copy of the form. The Advisor will promptly provide the Sub-regulatory body or arbitration panel Advisor with a complete copy of all subsequent amendments to Part 2 of its Form ADV;
(g) The Advisor and the Fund have duly entered into the Advisory Agreement pursuant to which the Advisor or its principals is a party, or to which any of the assets of Fund authorized the Advisor is subject which reasonably might be expected to result enter into this Agreement; and
(h) The Advisor shall comply in any all material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability to discharge its obligations respects with all requirements applicable to the Company; furthermore, investment adviser of a closed-end fund like the Advisor has not received any notice of an investigation by Fund under the NFA regarding non-compliance with its rules or the CE Advisers Act, including Rule 206(4)-7 thereunder, and the Commodity Futures Trading Commission (the “CFTC”) regarding non-compliance with the CE Act or the rules and regulations thereunder or any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge its obligations under this Agreement or the Advisory Agreement1940 Act.
Appears in 2 contracts
Samples: Investment Sub Advisory Agreement, Investment Sub Advisory Agreement (CION Ares Diversified Credit Fund)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Company and the Administrator Client that:
a. (a) It is a corporation duly organized and validly existing under the laws of the State of Delaware and is qualified to do business and is in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and in which the failure to so qualify would materially adversely affect its ability to conduct its business activities.
(b) It has full corporate power and authority to perform its obligations under this Agreement.
(c) This Agreement and the Advisory Agreement have has been duly and validly authorized, executed and delivered on behalf of the Advisor and each is a valid and binding agreement of the Advisor enforceable in accordance with its terms. .
(d) The performance execution and delivery of this Agreement, the incurring of the Advisor’s obligations under this Agreement and the consummation of the transactions set forth in this Agreement and in the Advisory Agreement are performance of such obligations will not contrary to the provisions of the Advisor’s formation documentsviolate, or to the best constitute a breach of its knowledge, any applicable statute, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision the Articles of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
b. The Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement including, without limitation, registration as a commodity trading advisor under the Commodity Exchange Act (the “CE Act”) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications and the failure to be so qualified would materially adversely affect the Advisor’s ability to perform its obligations hereunder or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this Agreement.
d. Subject to the NDA, and as requested of the Company, the Advisor has supplied to or made available for review by the Company (and if requested by the Company to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History which are in the Advisor’s possession or to which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The Advisor is not required to be registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), but may so register in the future.
f. As of the date hereof, there has been no material adverse change in the Advisor’s Past Performance History which has not been communicated in writing to and received by the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, Incorporation of the Advisor or in the earningsany agreement or instrument by which it is bound or, affairs or business prospects of the Advisor, whether or not arising in the ordinary course of business.
h. There is no pending, or to the best of the Advisor’s 's knowledge, threatened any order, rule, law or contemplated regulation applicable to the Advisor of any court or any governmental body or administrative agency or self-regulatory authority having jurisdiction over the Advisor.
(e) There is not pending or, to the best of the Advisor's knowledge, threatened, any action, suit or proceeding before or by any court, governmental, administrative court or other governmental or self-regulatory body or arbitration panel authority to which the Advisor or its principals is a party, or to party which any of the assets of the Advisor is subject which might reasonably might be expected to result in any material adverse change in the financial condition or regulatory qualifications of the Advisor.
(financial f) It will exercise good faith and due care and will, under no circumstances, deliberately use any procedures in discharging its obligations hereunder that it or otherwise)any of its principals knows or has reason to believe is, business or prospects in view of the constraints imposed on the Advisor by the Client, materially inferior to the procedures employed for any other account for which the Advisor or which reasonably might be expected any of its principals or affiliates discharges obligations (either alone or in conjunction with others) similar to materially adversely affect those undertaken by the Advisor hereunder.
(g) It will promptly notify the Client of any material change in any of the foregoing representations and warranties or of any material assets of change in the Advisor investment approaches or which reasonably might strategies to be expected to impair materially the Advisor’s ability to discharge its obligations to the Company; furthermore, the Advisor has not received any notice of an investigation by the NFA regarding non-compliance utilized in connection with its rules or the CE Act, the Commodity Futures Trading Commission (the “CFTC”) regarding non-compliance with the CE Act or the rules and regulations thereunder or any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge its obligations under this Agreement or the Advisory Agreement.
Appears in 2 contracts
Samples: Investment Advisory Agreement (JNC Opportunity Fund LTD), Investment Advisory Agreement (JNC Opportunity Fund LTD)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Company and the Administrator that:
a. This Agreement and the Advisory Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. The performance of the Advisor’s obligations under this Agreement and the consummation of the transactions set forth in this Agreement and in the Advisory Agreement are not contrary to the provisions of the Advisor’s formation documents, or to the best of its knowledge, any applicable statute, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
b. The Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement including, without limitation, registration as a commodity trading advisor under the Commodity Exchange Act that (the “CE Act”i) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. On the date hereof, the Advisor is, and at all times during the term of this Agreement it will be, a corporation duly formed and be validly existing and in good standing under the laws of its jurisdiction state of incorporation incorporation; (ii) at all times during the term of this Agreement it will be duly registered with the Securities and Exchange Commission as an Investment Adviser pursuant to the Advisers Act; (iii) at all times during the term of this Agreement it will be fully authorized under the applicable laws governing Advisor to perform the services described in good standing and this Agreement; (iv) at all times during the term of this Agreement it will be duly qualified to do business and duly registered or licensed as an investment adviser in each state or jurisdiction in which the nature where such registration or conduct of license is required to perform its business requires such qualifications and the failure obligations under this Agreement, except for those failures to be so qualified would materially adversely affect and registered or licensed which (individually or in the aggregate) could not reasonably be expected to have a material adverse effect on the Advisor’s ability to perform its services under this Agreement; (v) this Agreement has been duly authorized, executed and delivered by the Advisor and constitutes the legal, valid and binding obligation of the Advisor; (vi) the execution and performance of this Agreement will not conflict with, or result in a breach of the terms, conditions or provisions of, or constitute a default under, or result in any violation of, any agreement or instrument to which the Advisor may be subject; (vii) at all times during the term of this Agreement it will have completed, obtained or performed all registrations, filings, approvals, licenses, consents and examinations required by any Governmental Authority in connection with the performance of its obligations hereunder under this Agreement, except for those failures which (individually or in the aggregate) could not reasonably be expected to have a material adverse effect on the Advisor’s ability to perform its services under this Agreement; (viii) it is in the Advisory business of advising institutional investors with respect to the acquisition, financing, management and disposition of real estate and interests therein, portfolio management and asset management; and (ix) the personnel of the Advisor who will be responsible for carrying out this Agreement are individuals experienced in the performance of the various functions contemplated by this Agreement and, in carrying out its obligations under this Agreement. The , the Advisor has full capacity will at all times and authority at its expense maintain a staff of trained and competent personnel to conduct its business and enable it to perform its obligations under this Agreement.
d. Subject to the NDA, and as requested of the Company, the Advisor has supplied to or made available for review by the Company (and if requested by the Company to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History which are in the Advisor’s possession or to which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The Advisor is not required to be registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), but may so register in the future.
f. As of the date hereof, there has been no material adverse change in the Advisor’s Past Performance History which has not been communicated in writing to and received by the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, of the Advisor or in the earnings, affairs or business prospects of the Advisor, whether or not arising in the ordinary course of business.
h. There is no pending, or to the best of the Advisor’s knowledge, threatened or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which the Advisor or its principals is a party, or to which any of the assets of the Advisor is subject which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability to discharge its obligations to the Company; furthermore, the Advisor has not received any notice of an investigation by the NFA regarding non-compliance with its rules or the CE Act, the Commodity Futures Trading Commission (the “CFTC”) regarding non-compliance with the CE Act or the rules and regulations thereunder or any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge its obligations under this Agreement or the Advisory Agreement.
Appears in 2 contracts
Samples: Investment Advisory Agreement (Excelsior Lasalle Property Fund Inc), Investment Advisory Agreement (Excelsior Lasalle Property Fund Inc)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Company Sub-Advisor and the Administrator thatTrust as follows:
a. This Agreement and the Advisory Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. The performance of the Advisor’s obligations under this Agreement and the consummation of the transactions set forth in this Agreement and in the Advisory Agreement are not contrary to the provisions of the Advisor’s formation documents, or to the best of its knowledge, any applicable statute, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
b. The Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement including, without limitation, registration as a commodity trading advisor under the Commodity Exchange Act (the “CE Act”a) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications and the failure to be so qualified would materially adversely affect the Advisor’s ability to perform its obligations hereunder or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this Agreement.
d. Subject to the NDA, and as requested of the Company, the Advisor has supplied to or made available for review by the Company (and if requested by the Company to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History which are in the Advisor’s possession or to which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The Advisor is not required to be registered as an investment adviser under the Investment Advisers Act Act;
(b) The Advisor is a corporation duly organized and validly existing under the laws of 1940the State of Delaware, with the power to own and possess its assets and carry on its business as it is now being conducted;
(c) The execution, delivery and performance by the Advisor of this Agreement are within the Advisor's powers and have been duly authorized by all necessary action on the part of its Board of Directors, and no action by or in respect of, or filing with, any governmental body, agency or official is required on the part of the Advisor for the execution, delivery and performance by the Advisor of this Agreement, and the execution, delivery and performance by the Advisor of this Agreement do not contravene or constitute a default under (i) any provision of applicable law, rule or regulation; (ii) the Advisor's governing instruments; or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Advisor;
(d) The Advisor acknowledges that it received a copy of the Sub-Advisor's Form ADV prior to the execution of this Agreement;
(e) The Advisor and the Trust have duly entered into the Advisory Agreement pursuant to which the Trust authorized the Advisor to enter into this Agreement; and
(f) The Advisor and the Trust have policies and procedures designed to detect and deter disruptive trading practices, including "market timing," and the Advisor and the Trust each agree that they will continue to enforce and abide by such policies and procedures, as amended (the “Advisers Act”)from time to time, but may so register in the future.
f. As of the date hereof, there has been no material adverse change in the Advisor’s Past Performance History which has not been communicated in writing and comply with all existing and future laws relating to and received by the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, of the Advisor or in the earnings, affairs or business prospects of the Advisor, whether or not arising in the ordinary course of business.
h. There is no pending, such matters or to the best purchase and sale of interests in the Funds generally. During the term of this Agreement, the Trust and the Advisor agree to furnish to the Sub-Advisor at its principal offices prior to use thereof copies of all Registration Statements and amendments thereto, prospectuses, proxy statements, reports to shareholders, sales literature or other material prepared for distribution to shareholders of the Trust or any Series or to the public that refer or relate in any way to the Sub-Advisor or any of its affiliates (other than the Advisor’s knowledge), threatened or contemplated actionthat use any derivative of the name "Goldman Sachs Asset Management, suit L.P.," or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which logos associated therewxxx. Xxe Trusx xxx the Advisor or its principals is a partyagree that they will not use any such material without the prior consent of the Sub-Advisor, or which consent shall not be unreasonably withheld. In the event of the termination of this Agreement, the Trust and the Advisor will furnish to which the Sub-Advisor copies of any of the assets above-mentioned materials that refer or relate in any way to the Sub-Advisor; The Trust and the Advisor will furnish to the Sub-Advisor such information relating to either of them or the business affairs of the Trust as the Sub-Advisor is subject which shall from time to time reasonably might be expected to result request in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability order to discharge its obligations to hereunder; The Advisor and the Company; furthermoreTrust agree that neither the Trust, the Advisor, nor affiliated persons of the Trust or the Advisor has not received shall give any notice information or make any representations or statements in connection with the sale of an investigation shares of the Series concerning the Sub-Advisor or the Series other than the information or representations contained in the Registration Statement, prospectus, or statement of additional information for the Trust, as they may be amended or supplemented from time to time, and reviewed and agreed to by the NFA regarding nonSub-compliance with its rules Advisor, or in reports or proxy statements for the CE ActTrust, or in sales literature or other promotional material approved in advance by the Commodity Futures Trading Commission (the “CFTC”) regarding nonSub-compliance Advisor, except with the CE Act or prior permission of the rules and regulations thereunder or any exchange regarding nonSub-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge its obligations under this Agreement or the Advisory Agreement.
Appears in 1 contract
Samples: Sub Advisory Agreement (MGI Funds)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Company Sub-Advisor and the Administrator thatTrust as follows:
a. This Agreement and the Advisory Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. The performance of the Advisor’s obligations under this Agreement and the consummation of the transactions set forth in this Agreement and in the Advisory Agreement are not contrary to the provisions of the Advisor’s formation documents, or to the best of its knowledge, any applicable statute, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
b. The Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement including, without limitation, registration as a commodity trading advisor under the Commodity Exchange Act (the “CE Act”a) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications and the failure to be so qualified would materially adversely affect the Advisor’s ability to perform its obligations hereunder or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this Agreement.
d. Subject to the NDA, and as requested of the Company, the Advisor has supplied to or made available for review by the Company (and if requested by the Company to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History which are in the Advisor’s possession or to which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The Advisor is not required to be registered as an investment adviser under the Investment Advisers Act Act;
(b) The Advisor is a corporation duly organized and validly existing under the laws of 1940the State of Delaware, with the power to own and possess its assets and carry on its business as it is now being conducted;
(c) The execution, delivery and performance by the Advisor of this Agreement are within the Advisor's powers and have been duly authorized by all necessary action on the part of its Board of Directors, and no action by or in respect of, or filing with, any governmental body, agency or official is required on the part of the Advisor for the execution, delivery and performance by the Advisor of this Agreement, and the execution, delivery and performance by the Advisor of this Agreement do not contravene or constitute a default under (i) any provision of applicable law, rule or regulation; (ii) the Advisor's governing instruments; or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Advisor;
(d) The Advisor acknowledges that it received a copy of the Sub-Advisor's Form ADV (a copy of which is attached as Exhibit B) prior to the execution of this Agreement. The Advisor has furnished the Sub-Advisor a current copy of the prospectus and statement of additional information of the Funds and agrees during the continuance of this Agreement to furnish the Sub-Advisor copies of any revisions or supplement thereto at, or, if practicable, before the time the revisions or supplements become effective. No revisions shall be made nor supplements issued regarding the Sub-Advisor without the prior review and approval of the Sub-Advisor, such approval not to be unreasonably withheld. No written materials naming or relating to the Sub-Advisor, its employees or its affiliated companies, other than materials provided or approved by the Sub-Advisor (such approval not to be unreasonably withheld), shall be used by the Advisor, the Funds or their affiliates in offering or marketing shares of the Funds without the Sub-Advisor's prior written approval. The Sub-Advisor shall endeavor to review all materials requiring approval by the Sub-Advisor within five days of its submission to the Sub-Advisor. The Advisor agrees to furnish the Sub-Advisor with minutes of meetings of the Directors of the Funds to the extent they may affect the duties of the Sub-Advisor, and with copies of any further materials or information which the Sub-Advisor may reasonably request to enable it to perform its functions under this Agreement.
(e) The Advisor and the Trust have duly entered into the Advisory Agreement pursuant to which the Trust authorized the Advisor to enter into this Agreement; and
(f) The Advisor and the Trust have policies and procedures designed to detect and deter disruptive trading practices, including "market timing," and the Advisor and the Trust each agree that they will continue to enforce and abide by such policies and procedures, as amended (the “Advisers Act”)from time to time, but may so register in the future.
f. As of the date hereof, there has been no material adverse change in the Advisor’s Past Performance History which has not been communicated in writing and comply with all existing and future laws relating to and received by the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, of the Advisor or in the earnings, affairs or business prospects of the Advisor, whether or not arising in the ordinary course of business.
h. There is no pending, such matters or to the best purchase and sale of the Advisor’s knowledge, threatened or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which the Advisor or its principals is a party, or to which any of the assets of the Advisor is subject which reasonably might be expected to result in any material adverse change interests in the condition (financial or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability to discharge its obligations to the Company; furthermore, the Advisor has not received any notice of an investigation by the NFA regarding non-compliance with its rules or the CE Act, the Commodity Futures Trading Commission (the “CFTC”) regarding non-compliance with the CE Act or the rules and regulations thereunder or any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge its obligations under this Agreement or the Advisory AgreementFunds generally.
Appears in 1 contract
Samples: Sub Advisory Agreement (MGI Funds)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Company Sub-Advisor and the Administrator thatTrust as follows:
a. This Agreement and the Advisory Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. The performance of the Advisor’s obligations under this Agreement and the consummation of the transactions set forth in this Agreement and in the Advisory Agreement are not contrary to the provisions of the Advisor’s formation documents, or to the best of its knowledge, any applicable statute, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
b. The Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement including, without limitation, registration as a commodity trading advisor under the Commodity Exchange Act (the “CE Act”a) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications and the failure to be so qualified would materially adversely affect the Advisor’s ability to perform its obligations hereunder or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this Agreement.
d. Subject to the NDA, and as requested of the Company, the Advisor has supplied to or made available for review by the Company (and if requested by the Company to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History which are in the Advisor’s possession or to which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The Advisor is not required to be registered as an investment adviser under the Investment Advisers Act;
(b) The Advisor is a corporation duly organized and validly existing under the laws of the State of California with the power to own and possess its assets and carry on its business as it is now being conducted;
(c) The execution, delivery and performance by the Advisor of this Agreement are within the Advisor's powers and have been duly authorized by all necessary action on the part of its Board of Directors, and no action by or in respect of, or filing with, any governmental body, agency or official is required on the part of the Advisor for the execution, delivery and performance by the Advisor of this Agreement, and the execution, delivery and performance by the Advisor of this Agreement do not contravene or constitute a default under (i) any provision of applicable law, rule or regulation, (ii) the Advisor's governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Advisor;
(d) The Form ADV of the Advisor as provided to the Sub-Advisor is a true and complete copy of the form as currently filed with the SEC and the information contained therein is accurate and complete in all material respects and does not omit to state any material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading;
(e) The Advisor shall provide to the Sub-Advisor a complete copy of each amendment to its for ADV.
(f) The Advisor acknowledges that it received a copy of the Sub-Advisor's Form ADV (a copy of which is attached as Exhibit B) prior to the execution of this Agreement; and
(g) The Advisor and the Trust have duly entered into the Advisory Agreement pursuant to which the Trust authorized the Advisor to enter into this Agreement.
(h) The Trust and the Adviser agree that the Sub-Adviser shall have no responsibility or liability arising out of any non-compliance by the Fund or the Adviser with anti-money laundering regulations. The Adviser hereby certifies that the Adviser has implemented an anti-money laundering program and a customer identification program ("CIP") that each comply with the requirements of applicable law, including the Bank Secrecy Act and U.S.
A. PATRIOT of 19402001 and the regulations promulgated thereunder, and that the Adviser will perform the requirements of such programs with respect to the investors in the Fund.
(i) The Advisor and the Trust have policies and procedures designed to detect and deter disruptive trading practices, including "market timing", and Advisor and Trust agree that they will continue to enforce and abide by such policies and procedures, as amended (the “Advisers Act”)from time to time, but may so register in the future.
f. As of the date hereof, there has been no material adverse change in the Advisor’s Past Performance History which has not been communicated in writing and comply with all existing and future laws relating to and received by the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, of the Advisor or in the earnings, affairs or business prospects of the Advisor, whether or not arising in the ordinary course of business.
h. There is no pending, such matters or to the best purchase and sale of the Advisor’s knowledge, threatened or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which the Advisor or its principals is a party, or to which any of the assets of the Advisor is subject which reasonably might be expected to result in any material adverse change interests in the condition (financial or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability to discharge its obligations to the Company; furthermore, the Advisor has not received any notice of an investigation by the NFA regarding non-compliance with its rules or the CE Act, the Commodity Futures Trading Commission (the “CFTC”) regarding non-compliance with the CE Act or the rules and regulations thereunder or any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge its obligations under this Agreement or the Advisory AgreementFund generally.
Appears in 1 contract
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to, and agrees with, each Underwriter as of the Closing Time and each Option Closing Time, if any, as follows:
(a) the Advisor is a limited liability company duly formed and is validly existing in good standing under the laws of the state of Delaware, with the requisite limited liability company power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Preliminary Prospectus and the Prospectus, and is duly qualified to transact business and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to be so qualified or in good standing would not reasonably be expected to have an Advisor Material Adverse Effect (as defined below);
(b) the Advisor is duly registered with the Commission as an investment adviser under the Advisers Act and is registered with the appropriate state authority in all states in which it needs to be registered; the Advisor is not prohibited by the Advisers Act, the 1940 Act or any state statute from acting under the Investment Advisory Agreement, as contemplated by the Preliminary Prospectus and the Prospectus; there does not exist any proceeding, or to the Company Advisor’s knowledge, any facts or circumstances the existence of which could lead to any proceeding which might materially and adversely affect the Administrator that:registration of the Advisor with the Commission or any applicable state regulatory authority;
a. This (c) the Advisor has or had the requisite limited liability company power and authority to enter into this Agreement and the Investment Advisory Agreement; the execution and delivery of, and the performance by the Advisor of its obligations under, this Agreement and the Investment Advisory Agreement have been duly and validly authorized, authorized by the Advisor; and this Agreement and the Investment Advisory Agreement have been duly executed and delivered on behalf by the Advisor, and each such agreement constitutes the valid and legally binding agreement of the Advisor, enforceable against the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. The performance , except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Advisor’s obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles;
(d) the Investment Advisory Agreement is in full force and effect and neither the Advisor nor, to the knowledge of the Advisor, any other party to the Investment Advisory Agreement is in default thereunder, and, no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Advisor under such document;
(e) the Advisor has the financial, human and other resources available to it necessary for the performance of its services and obligations as contemplated in the Preliminary Prospectus and the Prospectus and under this Agreement and the consummation Investment Advisory Agreement, as applicable;
(f) no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Advisor or the Advisor’s property is pending or, to the knowledge of the Advisor, threatened that (i) is required to be described in the Preliminary Prospectus and the Prospectus that is not so described as required, (ii) would reasonably be expected to have a material adverse effect on the ability of the Advisor to fulfill its obligations hereunder or under the Investment Advisory Agreement, or (iii) would reasonably be expected to have a material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Advisor, whether or not arising from transactions in the ordinary course of business (an “Advisor Material Adverse Effect”), except as set forth in this Agreement and or contemplated in the Advisory Agreement are Preliminary Prospectus and the Prospectus;
(g) the Advisor is not contrary to the provisions of the Advisor’s formation documentsin breach of, or to the best in default under (and no event has occurred which with notice, lapse of its knowledgetime, any applicable statuteor both would constitute a breach of, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision give the holder of any undertakingindebtedness (or a person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or part of such indebtedness under), its Charter Documents or in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, license, indenture, mortgage, deed of trust, bank loan or credit agreement or order other agreement or instrument to which the Advisor is a party or by which any of the Advisor is bound.
b. The Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement including, without limitation, registration as a commodity trading advisor under the Commodity Exchange Act (the “CE Act”) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications and the failure to be so qualified would materially adversely affect the Advisor’s ability to perform its obligations hereunder properties is bound or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this Agreement.
d. Subject to the NDAaffected, and as requested of the Companyexcept for such breaches or defaults which would not, the Advisor has supplied to individually or made available for review by the Company (and if requested by the Company to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History which are in the Advisor’s possession or aggregate, reasonably be expected to have an Advisor Material Adverse Effect;
(h) since the respective dates as of which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The Advisor information is not required to be registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), but may so register given in the future.
f. As of Preliminary Prospectus and the date hereofProspectus, except as otherwise stated therein, (i) there has been no material adverse event, circumstance or change in the Advisor’s Past Performance History which that has not had, or would reasonably be expected to have an Advisor Material Adverse Effect; and (ii) there have been communicated in writing to and received no transactions entered into by the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, of the Advisor or in the earnings, affairs or business prospects of the Advisor, whether or not arising which are material to the Advisor other than those in the ordinary course of business.its business as described in the Preliminary Prospectus and the Prospectus;
h. There is no pending, or to the best of the Advisor’s knowledge, threatened or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which (i) the Advisor possesses all licenses, certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct its principals is a party, or to which any of the assets of the Advisor is subject which reasonably might be expected to result in any material adverse change business in the condition (financial or otherwise)manner described in the Preliminary Prospectus and the Prospectus, business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability to discharge its obligations to the Company; furthermore, and the Advisor has not received any notice of an investigation by proceedings relating to the NFA regarding non-compliance with its rules revocation or modification thereof, except where the failure to possess any such licenses, certificates, permits or other authorizations, or the CE revocation or modification thereof, would not, individually or in the aggregate, reasonably be expected to have an Advisor Material Adverse Effect and would not reasonably be expected to have an Advisor Material Adverse Effect on the transactions contemplated by this Agreement;
(j) there are no actions, suits, arbitrations, claims, proceedings, inquiries or investigations pending or, to the knowledge of the Advisor, threatened against the Advisor, or any of the Advisor’s properties, or to the knowledge of the Advisor, the Advisor’s directors, officers or affiliates, at law or in equity, or before or by any Governmental Authority, in each case which would reasonably be expected to result in a judgment, decree, award or order having an Advisor Material Adverse Effect;
(k) the Advisor owns or possesses adequate licenses or other rights to use all patents, trademarks, service marks, trade names, copyrights, software and design licenses, trade secrets, other intangible property rights and know-how (collectively “Advisor Intellectual Property”), as are necessary to entitle the Advisor to conduct the Advisor’s business described in both the Preliminary Prospectus and the Prospectus, except where the failure to own, license or have such right would not reasonably be expected to have an Advisor Material Adverse Effect; and the Advisor has not received written notice of any infringement of or conflict with (and the Advisor does not know of any such infringement of or conflict with) asserted rights of others with respect to any Advisor Intellectual Property which would reasonably be expected to have an Advisor Material Adverse Effect;
(l) no (i) approval, authorization, consent or order of or filing with any Governmental Authority, (ii) authorization, approval, vote or other consent of any holder of securities of the Advisor or any creditor of the Advisor, or (iii) waiver or consent under any material agreement is required in connection with the Advisor’s execution, delivery and performance of this Agreement or the Fund Agreements, to the extent a party thereto, the consummation of the transactions contemplated by this Agreement (including, without limitation, the issuance and sale of the Shares), and the sale and delivery of the Shares, other than (A) such as have been obtained, or will have been obtained at the Closing Time or the applicable Option Closing Time, as the case may be, under the Securities Act, the Commodity Futures Trading Commission (Exchange Act, the “CFTC”) regarding non-compliance with 1940 Act, the CE Advisers Act or and the rules and regulations thereunder of FINRA or the New York Stock Exchange and (B) any exchange regarding non-compliance with necessary qualification under the rules securities or blue sky laws of such exchange the various jurisdictions in which investigation reasonably might be expected the Shares are being offered by the Underwriters;
(m) the Advisor owns or leases or has access to materially impair all properties and assets as are necessary to the Advisor’s ability to discharge conduct of its obligations under operations as presently conducted;
(n) neither the execution, delivery or performance by the Advisor of this Agreement or the Investment Advisory Agreement, nor the consummation of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to, (i) the Charter Documents of the Advisor, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Advisor is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Advisor of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Advisor or any of the Advisor’s properties, except in the case of clauses (ii) and (iii) where such breach or violation, either singly or in the aggregate, would not reasonably be expected to have an Advisor Material Adverse Effect;
(o) the Advisor has not taken, directly or indirectly, any action designed to, or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Fund to facilitate the issuance, sale or resale of the Shares and the Advisor is not aware of any such action taken or to be taken by any affiliates of the Advisor;
(p) the operations of the Advisor are and have been conducted at all times in compliance with applicable Money Laundering Laws, except for any such non-compliance as would not, individually or in the aggregate, reasonably be expected to have an Advisor Material Adverse Effect, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Advisor with respect to the Money Laundering Laws is pending or, to the knowledge of the Advisor, threatened;
(q) the Advisor maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Fund’s assets is permitted only in accordance with its management’s general or specific authorization;
(r) the Advisor (i) has adopted and implemented written policies and procedures pursuant to Rule 206(4)-7 under the Advisers Act reasonably designed to prevent violations of the Advisers Act by the Advisor; (ii) is conducting its business in compliance with all laws, rules, regulations, decisions, directives and orders except for such failure to comply which would not reasonably be expected to result in an Advisor Material Adverse Effect; and (iii) is conducting its business in compliance in all material respects with the applicable requirements of the Advisers Act;
(s) the description of the Advisor and its business, and the statements attributable to the Advisor, in each of the Registration Statement, the Preliminary Prospectus and the Prospectus did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(t) the Advisor is not, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Registration Statement, the Preliminary Prospectus and the Prospectus will not be, required to register as an “investment company” (as defined in the 1940 Act);
(u) the Advisor maintains insurance (issued by insurers of recognized financial responsibility) of the types and in the amounts generally deemed adequate for their respective businesses and consistent with insurance coverage maintained by similar companies in similar businesses, including, but not limited to, insurance covering real and personal property owned or leased by the Advisor against theft, damage, destruction, acts of vandalism and all other risks customarily insured against, all of which insurance is in full force and effect;
(v) any certificate signed by any officer of the Advisor and delivered to the Underwriters or to counsel for the Underwriters shall be deemed a representation and warranty by the Advisor to the Underwriters as to matters covered thereby; and
(w) the Advisor’s information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of the Fund, its Subsidiaries and the Advisor as currently conducted. The Advisor implemented and maintained commercially reasonable controls, policies, procedures, and safeguards to maintain and protect the Fund’s, its Subsidiaries’ and the Advisor’s material confidential information and the integrity, continuous operation, redundancy and security of all material IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”)) used in connection with its business, and there have been no breaches, violations, outages or unauthorized uses of or accesses to same, except, in each case, as would not reasonably be expected to, individually or in the aggregate, have an Advisor Material Adverse Effect. The Fund, its Subsidiaries and the Advisor are presently in compliance in all material respects with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification, except, in each case, as would not reasonably be expected to, individually or in the aggregate, have an Advisor Material Adverse Effect.
Appears in 1 contract
Samples: Underwriting Agreement (Carlyle Credit Income Fund)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Company Sub-Advisor and the Administrator thatTrust as follows:
a. This Agreement and the Advisory Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. The performance of the Advisor’s obligations under this Agreement and the consummation of the transactions set forth in this Agreement and in the Advisory Agreement are not contrary to the provisions of the Advisor’s formation documents, or to the best of its knowledge, any applicable statute, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
b. The Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement including, without limitation, registration as a commodity trading advisor under the Commodity Exchange Act (the “CE Act”a) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications and the failure to be so qualified would materially adversely affect the Advisor’s ability to perform its obligations hereunder or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this Agreement.
d. Subject to the NDA, and as requested of the Company, the Advisor has supplied to or made available for review by the Company (and if requested by the Company to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History which are in the Advisor’s possession or to which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The Advisor is not required to be registered as an investment adviser under the Investment Advisers Act Act;
(b) The Advisor is a corporation duly organized and validly existing under the laws of 1940the State of Delaware, with the power to own and possess its assets and carry on its business as it is now being conducted;
(c) The execution, delivery and performance by the Advisor of this Agreement are within the Advisor’s powers and have been duly authorized by all necessary action on the part of its Board of Directors, and no action by or in respect of, or filing with, any governmental body, agency or official is required on the part of the Advisor for the execution, delivery and performance by the Advisor of this Agreement, and the execution, delivery and performance by the Advisor of this Agreement do not contravene or constitute a default under (i) any provision of applicable law, rule or regulation; (ii) the Advisor’s governing instruments; or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Advisor;
(d) The Advisor acknowledges that it received a copy of the Sub-Advisor’s Form ADV prior to the execution of this Agreement;
(e) The Advisor and the Trust have duly entered into the Advisory Agreement pursuant to which the Trust authorized the Advisor to enter into this Agreement; and
(f) The Advisor and the Trust have policies and procedures designed to detect and deter disruptive trading practices, including “market timing,” and the Advisor and the Trust each agree that they will continue to enforce and abide by such policies and procedures, as amended (the “Advisers Act”)from time to time, but may so register in the future.
f. As of the date hereof, there has been no material adverse change in the Advisor’s Past Performance History which has not been communicated in writing and comply with all existing and future laws relating to and received by the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, of the Advisor or in the earnings, affairs or business prospects of the Advisor, whether or not arising in the ordinary course of business.
h. There is no pending, such matters or to the best purchase and sale of interests in the Funds generally. During the term of this Agreement, the Trust and the Advisor agree to furnish to the Sub-Advisor at its principal offices prior to use thereof copies of all Registration Statements and amendments thereto, prospectuses, proxy statements, reports to shareholders, sales literature or other material prepared for distribution to shareholders of the Trust or any Series or to the public that refer or relate in any way to the Sub-Advisor or any of its affiliates (other than the Advisor’s knowledge), threatened or contemplated actionthat use any derivative of the name “Gxxxxxx Sxxxx Asset Management, suit L.P.,” or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which logos associated therewith. The Trust and the Advisor or its principals is a partyagree that they will not use any such material without the prior consent of the Sub-Advisor, or which consent shall not be unreasonably withheld. In the event of the termination of this Agreement, the Trust and the Advisor will furnish to which the Sub-Advisor copies of any of the assets above-mentioned materials that refer or relate in any way to the Sub-Advisor; The Trust and the Advisor will furnish to the Sub-Advisor such information relating to either of them or the business affairs of the Trust as the Sub-Advisor is subject which shall from time to time reasonably might be expected to result request in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability order to discharge its obligations to hereunder; The Advisor and the Company; furthermoreTrust agree that neither the Trust, the Advisor, nor affiliated persons of the Trust or the Advisor has not received shall give any notice information or make any representations or statements in connection with the sale of an investigation shares of the Series concerning the Sub-Advisor or the Series other than the information or representations contained in the Registration Statement, prospectus, or statement of additional information for the Trust, as they may be amended or supplemented from time to time, and reviewed and agreed to by the NFA regarding nonSub-compliance with its rules Advisor, or in reports or proxy statements for the CE ActTrust, or in sales literature or other promotional material approved in advance by the Commodity Futures Trading Commission (the “CFTC”) regarding nonSub-compliance Advisor, except with the CE Act or prior permission of the rules and regulations thereunder or any exchange regarding nonSub-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge its obligations under this Agreement or the Advisory Agreement.
Appears in 1 contract
Samples: Sub Advisory Agreement (MGI Funds)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Company and the Administrator thatas follows:
a. This Agreement and the Advisory Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. (a) The performance of the Advisor’s obligations under this Agreement and the consummation of the transactions set forth in this Agreement and in the Advisory Agreement are not contrary to the provisions of the Advisor’s formation documents, or to the best of its knowledge, any applicable statute, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party duly incorporated or by which the Advisor is bound.
b. The Advisor has all governmental and regulatory licensesorganized, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement includingapplicable, without limitation, registration as a commodity trading advisor under the Commodity Exchange Act (the “CE Act”) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation or organization.
(i) The applicable Stockholder is the beneficial owner of the shares of Company Capital Stock indicated opposite its name on Appendix A (each of which shall be deemed to be “held” by the Stockholder for purposes of Section 3 unless otherwise expressly stated with respect to any shares in Appendix A), free and clear of any and all Encumbrances (except for any Encumbrance that may be imposed pursuant to this Agreement, the Voting Agreement, the Second Amended and Restated Investors’ Rights Agreement of the Company, dated as of March 4, 2022 (the “Investors’ Rights Agreement”), the Second Amended and Restated Right of First Refusal and Co-Sale Agreement of the Company, dated as of March 4, 2022 (the “ROFR and Co-Sale Agreement”) or any lock-up agreement entered into by and among a Stockholder, the Company and Parent); and (ii) the applicable Stockholder does not beneficially own any securities of the Company other than the shares of Company Capital Stock and rights to purchase shares of Company Capital Stock set forth in good standing Appendix A.
(b) Except as otherwise provided in this Agreement, the Advisor has full power and qualified authority to do business (i) make, enter into and carry out the terms of this Agreement and (ii) vote all of the Stockholders’ Shares in each jurisdiction the manner set forth in this Agreement without the consent or approval of, or any other action on the part of, any other person or entity (including any Governmental Authority). Without limiting the generality of the foregoing, except for the Voting Agreement, neither the Advisor nor any Stockholder has entered into any voting agreement (other than this Agreement) with any person with respect to any of the Stockholders’ Shares, granted any person any proxy (revocable or irrevocable) or power of attorney with respect to any of the Stockholders’ Shares, deposited any of the Stockholders’ Shares in a voting trust or entered into any arrangement or agreement with any person limiting or affecting the Advisor’s legal power, authority or right to vote the Stockholders’ Shares on any matter.
(c) This Agreement has been duly and validly executed and delivered by the Advisor and (assuming the due authorization, execution and delivery by the other parties hereto) constitutes a valid and binding agreement of the Advisor enforceable against the Advisor in accordance with its terms, subject to the Enforceability Exceptions. The execution and delivery of this Agreement by the Advisor and the performance by the Advisor of the agreements and obligations hereunder will not result in any breach or violation of or be in conflict with or constitute a default under any term of any Contract or if applicable any provision of an organizational document (including a certificate of incorporation) to or by which the nature Advisor is a party or conduct bound, or any applicable law to which the Advisor (or any of its business requires the Advisor’s assets) is subject or bound, except for any such qualifications and breach, violation, conflict or default which, individually or in the failure aggregate, would not reasonably be expected to be so qualified would materially impair or adversely affect the Advisor’s ability to perform its obligations hereunder under this Agreement.
(d) The execution, delivery and performance of this Agreement by the Advisor do not and will not require any consent, approval, authorization or under permit of, action by, filing with or notification to, any Governmental Authority, except for any such consent, approval, authorization, permit, action, filing or notification the Advisory Agreement. The Advisor failure of which to make or obtain, individually or in the aggregate, has full capacity not and authority to conduct its business and would not materially impair the Advisor’s ability to perform its obligations under this Agreement.
d. Subject (e) The Advisor has had the opportunity to review the Merger Agreement and this Agreement with counsel of the Advisor’s own choosing. The Advisor has had an opportunity to review with its own tax advisors the tax consequences of the Merger and the Contemplated Transactions. The Advisor understands that it must rely solely on its advisors and not on any statements or representations made by Parent, the Company or any of their respective agents or representatives with respect to the NDAtax consequences of the Merger and the Contemplated Transactions. The Advisor understands that such Advisor (and not Parent, the Company or the Surviving Corporation) shall be responsible for the Advisor’s or any Stockholder’s tax liability that may arise as a result of the Merger or the Contemplated Transactions. The Advisor understands and as requested of acknowledges that the Company, Parent and Merger Sub are entering into the Advisor has supplied to or made available for review by the Company (and if requested by the Company to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by Merger Agreement in reliance upon the Advisor’s Past Performance History which are in execution, delivery and performance of this Agreement.
(f) With respect to the Advisor’s possession or to which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The Advisor is not required to be registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), but may so register in the future.
f. As of the date hereof, there has been is no material adverse change in action, suit, investigation or proceeding pending against, or, to the Advisor’s Past Performance History which has not been communicated in writing to and received by the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, of the Advisor or in the earnings, affairs or business prospects knowledge of the Advisor, whether or not arising in the ordinary course of business.
h. There is no pendingthreatened against, or to the best of the Advisor’s knowledge, threatened or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which the Advisor or its principals is a partyany Stockholder, or to which any of the Stockholders’ properties or assets (including the Shares) that would reasonably be expected to prevent or materially delay or impair the ability of the Advisor is subject which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability to discharge perform its obligations hereunder or to consummate the Company; furthermore, the Advisor has not received any notice of an investigation by the NFA regarding non-compliance with its rules or the CE Act, the Commodity Futures Trading Commission (the “CFTC”) regarding non-compliance with the CE Act or the rules and regulations thereunder or any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge its obligations under this Agreement or the Advisory Agreementtransactions contemplated hereby.
Appears in 1 contract
Samples: Company Stockholder Support Agreement (Baker Bros. Advisors Lp)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to, and agree with, each Placement Agent as of each Applicable Time and as of each Settlement Date, as follows:
(a) the Advisor is a limited liability company duly formed and is validly existing in good standing under the laws of the state of Delaware, with the requisite limited liability company power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus, and is duly qualified to transact business and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to be so qualified or in good standing would not reasonably be expected to have an Advisor Material Adverse Effect (as defined below);
(b) the Advisor is duly registered with the Commission as an investment adviser under the Advisers Act and is registered with the appropriate state authority in all states in which it needs to be registered; the Advisor is not prohibited by the Advisers Act, the 1940 Act or any state statute from acting under the Investment Advisory Agreement, as contemplated by the Prospectus; there does not exist any proceeding, or to the Company Advisor’s knowledge, any facts or circumstances the existence of which could lead to any proceeding which might materially and adversely affect the Administrator that:registration of the Advisor with the Commission or any applicable state regulatory authority;
a. This (c) the Advisor has or had the requisite limited liability company power and authority to enter into this Agreement and the Investment Advisory Agreement; the execution and delivery of, and the performance by the Advisor of its obligations under, this Agreement and the Investment Advisory Agreement have been duly and validly authorized, authorized by the Advisor; and this Agreement and the Investment Advisory Agreement have been duly executed and delivered on behalf by the Advisor, and each such agreement constitutes the valid and legally binding agreement of the Advisor, enforceable against the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. The performance , except as rights to indemnity and contribution hereunder may be limited by federal or state securities laws and subject to the qualification that the enforceability of the Advisor’s obligations hereunder and thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles;
(d) the Investment Advisory Agreement is in full force and effect and neither the Advisor nor, to the knowledge of the Advisor, any other party to the Investment Advisory Agreement is in default thereunder, and, no event has occurred which with the passage of time or the giving of notice or both would constitute a default by the Advisor under such document;
(e) the Advisor has the financial, human and other resources available to it necessary for the performance of its services and obligations as contemplated in the Prospectus and under this Agreement and the consummation Investment Advisory Agreement, as applicable;
(f) no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Advisor or the Advisor’s property is pending or, to the knowledge of the Advisor, threatened that (i) is required to be described in the Prospectus that is not so described as required, (ii) would reasonably be expected to have a material adverse effect on the ability of the Advisor to fulfill its obligations hereunder or under the Investment Advisory Agreement, or (iii) would reasonably be expected to have a material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Advisor, whether or not arising from transactions in the ordinary course of business (an “Advisor Material Adverse Effect”), except as set forth in this Agreement and or contemplated in the Advisory Agreement are Prospectus;
(g) the Advisor is not contrary to the provisions of the Advisor’s formation documentsin breach of, or to the best in default under (and no event has occurred which with notice, lapse of its knowledgetime, any applicable statuteor both would constitute a breach of, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision give the holder of any undertakingindebtedness (or a person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or part of such indebtedness under), its Charter Documents or in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, license, indenture, mortgage, deed of trust, bank loan or credit agreement or order other agreement or instrument to which the Advisor is a party or by which any of the Advisor is bound.
b. The Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement including, without limitation, registration as a commodity trading advisor under the Commodity Exchange Act (the “CE Act”) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications and the failure to be so qualified would materially adversely affect the Advisor’s ability to perform its obligations hereunder properties is bound or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this Agreement.
d. Subject to the NDAaffected, and as requested of the Companyexcept for such breaches or defaults which would not, the Advisor has supplied to individually or made available for review by the Company (and if requested by the Company to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History which are in the Advisor’s possession or aggregate, reasonably be expected to have an Advisor Material Adverse Effect;
(h) since the respective dates as of which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The Advisor information is not required to be registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), but may so register given in the future.
f. As of the date hereofProspectus, except as otherwise stated therein, (i) there has been no material adverse event, circumstance or change in the Advisor’s Past Performance History which that has not had, or would reasonably be expected to have an Advisor Material Adverse Effect; and (ii) there have been communicated in writing to and received no transactions entered into by the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, of the Advisor or in the earnings, affairs or business prospects of the Advisor, whether or not arising which are material to the Advisor other than those in the ordinary course of business.its business as described in the Prospectus;
h. There is no pending, or to the best of the Advisor’s knowledge, threatened or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which (i) the Advisor possesses all licenses, certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct its principals is a party, or to which any of the assets of the Advisor is subject which reasonably might be expected to result in any material adverse change business in the condition (financial or otherwise)manner described in the Prospectus, business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability to discharge its obligations to the Company; furthermore, and the Advisor has not received any notice of an investigation by proceedings relating to the NFA regarding non-compliance with its rules revocation or modification thereof, except where the failure to possess any such licenses, certificates, permits or other authorizations, or the CE revocation or modification thereof, would not, individually or in the aggregate, reasonably be expected to have an Advisor Material Adverse Effect and would not reasonably be expected to have an Advisor Material Adverse Effect on the transactions contemplated by this Agreement;
(j) there are no actions, suits, arbitrations, claims, proceedings, inquiries or investigations pending or, to the knowledge of the Advisor, threatened against the Advisor, or any of the Advisor’s respective properties, or to the knowledge of the Advisor, their respective directors, officers or affiliates, at law or in equity, or before or by any Governmental Authority, in each case which would reasonably be expected to result in a judgment, decree, award or order having an Advisor Material Adverse Effect;
(k) the Advisor owns or possesses adequate licenses or other rights to use all patents, trademarks, service marks, trade names, copyrights, software and design licenses, trade secrets, other intangible property rights and know-how (collectively “Advisor Intellectual Property”), as are necessary to entitle the Advisor to conduct the Advisor’s business described in the Prospectus, except where the failure to own, license or have such right would not reasonably be expected to have an Advisor Material Adverse Effect; and the Advisor has not received written notice of any infringement of or conflict with (and the Advisor does not know of any such infringement of or conflict with) asserted rights of others with respect to any Advisor Intellectual Property which would reasonably be expected to have an Advisor Material Adverse Effect;
(l) no (i) approval, authorization, consent or order of or filing with any Governmental Authority, (ii) authorization, approval, vote or other consent of any holder of securities of the Advisor or any creditor of the Advisor, or (iii) waiver or consent under any material agreement is required in connection with the Advisor’s execution, delivery and performance of this Agreement or the Fund Agreements, to the extent a party thereto, the consummation of the transactions contemplated by this Agreement (including, without limitation, the issuance and sale of the Common Shares), and the delivery of the Common Shares, other than (A) such as have been obtained, or will have been obtained at each Settlement Date with respect to the Common Shares issued and sold as of such Settlement Date, under the Securities Act, the Commodity Futures Trading Commission (Exchange Act, the “CFTC”) regarding non-compliance with 1940 Act, the CE Advisers Act or and the rules and regulations thereunder of FINRA or the New York Stock Exchange and (B) any exchange regarding non-compliance with necessary qualification under the rules securities or blue sky laws of such exchange the various jurisdictions in which investigation reasonably might be expected the Securities are being offered by the Placement Agents;
(m) the Advisor owns or leases or has access to materially impair all properties and assets as are necessary to the Advisor’s ability to discharge conduct of its obligations under operations as presently conducted;
(n) neither the execution, delivery or performance by the Advisor of this Agreement or the Investment Advisory Agreement, nor the consummation of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Advisor pursuant to, (i) the Charter Documents of the Advisor, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Advisor is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Advisor of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Advisor or any of the Advisor’s properties, except in the case of clauses (ii) and (iii) where such breach or violation, either singly or in the aggregate, would not reasonably be expected to have an Advisor Material Adverse Effect;
(o) the Advisor has not taken, directly or indirectly, any action designed to, or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Fund to facilitate the issuance, sale or resale of the Common Shares and the Advisor is not aware of any such action taken or to be taken by any affiliates of the Advisor;
(p) the operations of the Advisor are and have been conducted at all times in compliance with applicable Money Laundering Laws, except for any such non-compliance as would not, individually or in the aggregate, reasonably be expected to have an Advisor Material Adverse Effect, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Advisor with respect to the Money Laundering Laws is pending or, to the knowledge of the Advisor, threatened;
(q) the Advisor maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific authorization and (ii) access to the Fund’s assets is permitted only in accordance with its management’s general or specific authorization;
(r) the Advisor (i) has adopted and implemented written policies and procedures pursuant to Rule 206(4)-7 under the Advisers Act reasonably designed to prevent violations of the Advisers Act by the Advisor; (ii) is conducting its business in compliance with all laws, rules, regulations, decisions, directives and orders except for such failure to comply which would not reasonably be expected to result in an Advisor Material Adverse Effect; and (iii) is conducting its business in compliance in all material respects with the applicable requirements of the Advisers Act;
(s) the description of the Advisor and its business, and the statements attributable to the Advisor, in each of the Registration Statement and the Prospectus did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(t) the Advisor is not, and after giving effect to the sale of the Common Shares and the application of the proceeds thereof as described in the Registration Statement and the Prospectus will not be, required to register as an “investment company” (as defined in the 1940 Act);
(u) the Advisor maintains insurance (issued by insurers of recognized financial responsibility) of the types and in the amounts generally deemed adequate for their respective businesses and consistent with insurance coverage maintained by similar companies in similar businesses, including, but not limited to, insurance covering real and personal property owned or leased by the Advisor against theft, damage, destruction, acts of vandalism and all other risks customarily insured against, all of which insurance is in full force and effect;
(v) any certificate signed by any officer of the Advisor and delivered to the Placement Agents or to counsel for the Placement Agents shall be deemed a representation and warranty by the Advisor to the Placement Agents as to matters covered thereby; and
(w) the Advisor’s information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of the Fund, its subsidiaries and the Advisor as currently conducted. The Advisor implemented and maintained commercially reasonable controls, policies, procedures, and safeguards to maintain and protect the Fund’s, its subsidiaries’ and the Advisor’s material confidential information and the integrity, continuous operation, redundancy and security of all material IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”)) used in connection with its business, and there have been no breaches, violations, outages or unauthorized uses of or accesses to same, except, in each case, as would not reasonably be expected to, individually or in the aggregate, have an Advisor Material Adverse Effect. The Fund, its subsidiaries and the Advisor are presently in compliance in all material respects with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification, except, in each case, as would not reasonably be expected to, individually or in the aggregate, have an Advisor Material Adverse Effect.
Appears in 1 contract
Samples: Equity Distribution Agreement (Carlyle Credit Income Fund)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Company and the Administrator thatas follows:
a. This Agreement and the Advisory Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. (a) The performance of the Advisor’s obligations under this Agreement and the consummation of the transactions set forth in this Agreement and in the Advisory Agreement are not contrary to the provisions of the Advisor’s formation documents, or to the best of its knowledge, any applicable statute, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party duly incorporated or by which the Advisor is bound.
b. The Advisor has all governmental and regulatory licensesorganized, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement includingapplicable, without limitation, registration as a commodity trading advisor under the Commodity Exchange Act (the “CE Act”) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation or organization.
(i) The applicable Stockholder is the beneficial or record owner of the shares of Parent Common Stock indicated opposite its name on Appendix A (each of which shall be deemed to be “held” by the Stockholder for purposes of Section 3 unless otherwise expressly stated with respect to any shares in Appendix A), free and clear of any and all Encumbrances (except for any Encumbrance that may be imposed pursuant to any lock-up agreement entered into by and among the Stockholder, the Company and Parent); and (ii) the applicable Stockholder does not beneficially own any securities of Parent other than the shares of Parent Common Stock and rights to purchase shares Parent Common Stock, including the Pre-Funded Warrants, set forth in good standing Appendix A.
(b) Except as otherwise provided in this Agreement, the Advisor has full power and qualified authority to do business (i) make, enter into and carry out the terms of this Agreement and (ii) vote all of the Stockholders’ Shares in each jurisdiction the manner set forth in this Agreement without the consent or approval of, or any other action on the part of, any other person or entity (including any Governmental Authority). Without limiting the generality of the foregoing, neither the Advisor nor any Stockholder has entered into any voting agreement (other than this Agreement) with any person with respect to any of the Stockholder’s Shares, granted any person any proxy (revocable or irrevocable) or power of attorney with respect to any of the Stockholder’s Shares, deposited any of the Stockholder’s Shares in a voting trust or entered into any arrangement or agreement with any person limiting or affecting the Advisor’s legal power, authority or right to vote the Stockholder’s Shares on any matter.
(c) This Agreement has been duly and validly executed and delivered by the Advisor and (assuming the due authorization, execution and delivery by the other parties hereto) constitutes a valid and binding agreement of the Advisor enforceable against the Advisor in accordance with its terms, subject to the Enforceability Exceptions. The execution and delivery of this Agreement by the Advisor and the performance by the Advisor of the agreements and obligations hereunder will not result in any breach or violation of or be in conflict with or constitute a default under any term of any Contract or if applicable any provision of an organizational document (including a certificate of incorporation) to or by which the nature Advisor is a party or conduct bound, or any applicable law to which the Advisor (or any of its business requires the Advisor’s assets) is subject or bound, except for any such qualifications and breach, violation, conflict or default which, individually or in the failure aggregate, would not reasonably be expected to be so qualified would materially impair or adversely affect the Advisor’s ability to perform its obligations hereunder under this Agreement.
(d) The execution, delivery and performance of this Agreement by the Advisor do not and will not require any consent, approval, authorization or under permit of, action by, filing with or notification to, any Governmental Authority, except for any such consent, approval, authorization, permit, action, filing or notification the Advisory Agreement. The Advisor failure of which to make or obtain, individually or in the aggregate, has full capacity not and authority to conduct its business and would not materially impair the Advisor’s ability to perform its obligations under this Agreement.
d. Subject (e) The Advisor has had the opportunity to review the Merger Agreement and this Agreement with counsel of the Advisor’s own choosing. The Advisor has had an opportunity to review with its own tax advisors the tax consequences of the Merger and the Contemplated Transactions. The Advisor understands that it must rely solely on its advisors and not on any statements or representations made by Parent, the Company or any of their respective agents or representatives with respect to the NDAtax consequences of the Merger and the Contemplated Transactions. The Advisor understands that such Advisor (and not Parent, the Company or the Surviving Corporation) shall be responsible for the Advisor’s or any Stockholder’s tax liability that may arise as a result of the Merger or the Contemplated Transactions. The Advisor understands and as requested of acknowledges that the Company, Parent and Merger Sub are entering into the Advisor has supplied to or made available for review by the Company (and if requested by the Company to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by Merger Agreement in reliance upon the Advisor’s Past Performance History which are in execution, delivery and performance of this Agreement.
(f) With respect to the Advisor’s possession or to which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The Advisor is not required to be registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), but may so register in the future.
f. As of the date hereof, there has been is no material adverse change in action, suit, investigation or proceeding pending against, or, to the Advisor’s Past Performance History which has not been communicated in writing to and received by the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, of the Advisor or in the earnings, affairs or business prospects knowledge of the Advisor, whether or not arising in the ordinary course of business.
h. There is no pendingthreatened against, or to the best of the Advisor’s knowledge, threatened or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which the Advisor or its principals is a partyany Stockholder, or to which any of the Stockholders’ properties or assets (including the Shares) that would reasonably be expected to prevent or materially delay or impair the ability of the Advisor is subject which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability to discharge perform its obligations hereunder or to consummate the Company; furthermore, the Advisor has not received any notice of an investigation by the NFA regarding non-compliance with its rules or the CE Act, the Commodity Futures Trading Commission (the “CFTC”) regarding non-compliance with the CE Act or the rules and regulations thereunder or any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge its obligations under this Agreement or the Advisory Agreementtransactions contemplated hereby.
Appears in 1 contract
Samples: Parent Stockholder Support Agreement (Baker Bros. Advisors Lp)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Company Sub-Advisor and the Administrator thatTrust as follows:
a. This (a) The Advisor is registered as an investment adviser under the Advisers Act;
(b) The Advisor is a corporation duly organized and validly existing under the laws of the State of Delaware, with the power to own and possess its assets and carry on its business as it is now being conducted;
(c) The execution, delivery and performance by the Advisor of this Agreement are within the Advisor’s powers and have been duly authorized by all necessary action on the part of its Board of Directors, and no action by or in respect of, or filing with, any governmental body, agency or official is required on the part of the Advisor for the execution, delivery and performance by the Advisor of this Agreement, and the execution, delivery and performance by the Advisor of this Agreement or any Transaction not contravene or constitute a default under (i) any provision of applicable law, rule or regulation; (ii) the Advisor’s governing instruments; or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Advisor;
(d) The Advisor acknowledges that it received a copy of the Sub-Advisor’s Form ADV related to PFI (a copy of which is attached as Exhibit B) prior to the execution of this Agreement. The Advisor also acknowledges that it received and understands the information contained in the Sub-Advisor’s Collateralized Trading Disclosure Statement and that the agreements described therein would constitute legal, valid and binding obligations against the Fund in accordance with their terms;
(e) The Advisor and the Trust have duly entered into the Advisory Agreement pursuant to which the Trust authorized the Advisor to enter into this Agreement; and
(f) The Advisor and the Trust have been duly policies and validly authorizedprocedures designed to detect and deter disruptive trading practices, executed including “market timing,” and delivered on behalf of the Advisor and the Trust each is a valid agree that they will continue to enforce and binding agreement enforceable in accordance abide by such policies and procedures, as amended from time to time, and comply with its terms. The performance of the Advisor’s obligations under this Agreement all existing and the consummation of the transactions set forth in this Agreement and in the Advisory Agreement are not contrary future laws relating to the provisions of the Advisor’s formation documents, such matters or to the best purchase and sale of its knowledgeinterests in the Funds generally;
(g) The Fund (i) a “qualified eligible person” as defined under Rule 4.7(a)(2) of the Commodity Futures Trading Commission and the Advisor consents to the treatment of the Sub-Advisor Assets as an exempt account under Rule 4.7, any applicable statuteand (ii) a “qualified institutional buyer” as defined in Rule 144A under the Securities Act of 1933, law or regulation and shall notify the Sub-Advisor of any jurisdiction, and will not result change in any violation, breach or default under any term or provision such status; and
(h) With respect to the registration requirements of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
b. The Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement including, without limitation, registration as a commodity trading advisor under the U.S. Commodity Exchange Act (“CEA”), and the “CE Act”) and membership as a commodity trading advisor with requirements of the U.S. National Futures Association (the “NFA”), relating to commodity pool operators and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. On the date hereofcommodity trading advisors, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and Advisor: (i) engages in good standing activities requiring registration under the laws of its jurisdiction of incorporation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications and the failure to be so qualified would materially adversely affect the Advisor’s ability to perform its obligations hereunder or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this Agreement.
d. Subject to the NDACEA, and as requested of the Company, the Advisor has supplied to or made available for review by the Company (and if requested by the Company to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History which are in the Advisor’s possession or to which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The Advisor is not required to be appropriately registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), but may so register in the future.
f. As of the date hereof, there has been no material adverse change in the Advisor’s Past Performance History which has not been communicated in writing to and received by the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, of the Advisor or in the earnings, affairs or business prospects of the Advisor, whether or not arising in the ordinary course of business.
h. There is no pending, or to the best of the Advisor’s knowledge, threatened or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which the Advisor or its principals is a party, or to which any of the assets of the Advisor is subject which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability to discharge its obligations to the Company; furthermore, the Advisor has not received any notice of an investigation by the NFA regarding non-compliance with its rules or the CE Act, the Commodity Futures Trading Commission (the “CFTC”) regarding non-compliance with and is a member of the CE Act NFA; or (ii) does not engage in activities requiring NFA membership or registration under the rules CEA; or (iii) engages in activities requiring registration under the CEA but is exempt from CFTC registration requirements and regulations thereunder or any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge its obligations under this Agreement or the Advisory AgreementNFA membership requirements and has filed all documents necessary in connection therewith.
Appears in 1 contract
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to and agrees with each of the Company and the Administrator Underwriters that:
a. This Agreement and the Advisory Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. The performance of the Advisor’s obligations under this Agreement and the consummation of the transactions set forth in this Agreement and in the Advisory Agreement are not contrary to the provisions of the Advisor’s formation documents, or to the best of its knowledge, any applicable statute, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
b. (a) The Advisor has all governmental and regulatory licensesbeen duly organized, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement including, without limitation, registration is validly existing as a commodity trading advisor under the Commodity Exchange Act (the “CE Act”) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and limited liability company in good standing under the laws of the state of Delaware, has the power and authority to own its jurisdiction property and to conduct its business as described in the Time of incorporation Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business or its ownership or leasing of property requires such qualifications and qualification, except to the extent that the failure to be so qualified would materially adversely affect or be in good standing could not (i) reasonably be expected to have a material adverse effect on the Advisor’s ability to perform its obligations hereunder performance of this Agreement or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this Agreement.
d. Subject to the NDA, and as requested consummation of the Company, the Advisor has supplied to or made available for review by the Company (and if requested by the Company to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History which are in the Advisor’s possession or to which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The Advisor is not required to be registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), but may so register in the future.
f. As of the date hereof, there has been no material adverse change in the Advisor’s Past Performance History which has not been communicated in writing to and received by the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, of the Advisor or in the earnings, affairs or business prospects of the Advisor, whether or not arising in the ordinary course of business.
h. There is no pending, or to the best of the Advisor’s knowledge, threatened or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which the Advisor or its principals is a party, or to which any of the assets of the Advisor is subject which transactions herein contemplated or (ii) reasonably might be expected to result in any have a material adverse change in effect on the condition (financial or otherwise), business prospects, earnings, business, operations or prospects properties of the Advisor, whether or not arising from transactions in the ordinary course of business ((i) and (ii), individually or collectively, an “Advisor Material Adverse Effect”). The Advisor has no subsidiaries.
(b) The Advisor is duly registered as an investment adviser under the Advisers Act, and is not prohibited by the Advisers Act or the Investment Company Act from acting under the Management Agreement as an investment adviser to the Trust as contemplated by the Time of Sale Prospectus and the Prospectus, and no order of suspension or revocation of such registration has been issued or proceedings therefor initiated or threatened by the Commission.
(c) Each of this Agreement, the Management Agreement, the Structuring and Syndication Fee Agreement between the Advisor and Xxxxxx Xxxxxxx & Co. LLC (the “Xxxxxx Xxxxxxx Fee Agreement”), and [ADD OTHER AGREEMENTS EXECUTED BY THE ADVISOR] (this Agreement, the Management Agreement, the Xxxxxx Xxxxxxx Fee Agreement, and [other agreements executed by the Advisor] are referred to herein, collectively, as the “Advisor Agreements”) has been duly authorized, executed and delivered by the Advisor and complies with all applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Each of the Advisor Agreements is a valid and binding agreement of the Advisor, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and by equitable principles of general applicability.
(d) The execution and delivery by the Advisor of, and the performance by the Advisor of its obligations under the Advisor Agreements will not contravene (i) any provision of applicable law, (ii) the operating agreement, (iii) any agreement, or other instrument binding upon the Advisor that is material to the Advisor, or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Advisor, whether foreign or domestic, except in the case of (i), (iii) or (iv) above where such contravention would not have an Advisor Material Adverse Effect. No consent, approval, authorization, order or permit of, or qualification with, any governmental body or agency, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required for the performance by the Advisor of its obligations under the Advisor Agreements, except such as have been obtained and as may be required by the Acts, the Advisers Act, the Exchange Act or the applicable Rules and Regulations, or by the securities or Blue Sky laws of the various states and foreign jurisdictions in connection with the offer and sale of the Shares by the Underwriters pursuant to this Agreement, or such as which reasonably might be expected the failure to materially adversely affect obtain would neither have an Adviser Material Adverse Effect nor a Trust Material Adverse Effect.
(e) There are no legal or governmental proceedings pending or, to the knowledge of the Advisor, threatened to which the Advisor is a party or to which any of the material assets properties of the Advisor is subject (i) other than proceedings accurately described in all material respects in the Time of Sale Prospectus and the Prospectus and proceedings that would not, individually or which reasonably might be expected to impair materially in the Advisor’s aggregate, have an Advisor Material Adverse Effect, or a material adverse effect on the power or ability to discharge its obligations to the Company; furthermore, of the Advisor has not received any notice of an investigation by the NFA regarding non-compliance with its rules or the CE Act, the Commodity Futures Trading Commission (the “CFTC”) regarding non-compliance with the CE Act or the rules and regulations thereunder or any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge perform its obligations under this Agreement or to consummate the Advisory transactions contemplated by the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(f) The Advisor has all necessary consents, authorizations, approvals, orders (including exemptive orders), certificates and permits of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business in the manner described in the Time of Sale Prospectus and the Prospectus, except to the extent described in the Prospectus or that the failure to obtain or file the foregoing would not have an Advisor Material Adverse Effect or a Trust Material Adverse Effect.
(g) The Advisor has the financial resources available to it necessary for the performance of its services and obligations as contemplated in the Time of Sale Prospectus and the Prospectus and by the Advisor Agreements.
(h) The Management Agreement is in full force and effect and neither the Trust nor the Advisor is in default thereunder, and, no event has occurred which with the passage of time or the giving of notice or both would constitute a default under the Management Agreement.
(i) All information furnished by the Advisor for use in the Registration Statement, the Time of Sale Prospectus and the Prospectus, including, without limitation, the description of the Advisor, does not, and on the Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make such information not misleading (in the case of the Time of Sale Prospectus and Prospectus, in light of the circumstances under which such statement was made).
(j) There has not occurred any material adverse change, or any development that could reasonably be expected to result in a material adverse change, in the condition, financial or otherwise, or in the earnings, business, business prospects, properties or operations of the Advisor from that set forth in the Time of Sale Prospectus, and there have been no transactions entered into by the Advisor which are material to the Advisor other than those in the ordinary course of its business or as described in the Time of Sale Prospectus.
(k) Such Advisor maintains a system of internal controls designed to provide reasonable assurance that (i) transactions effectuated by it under the Management Agreement are executed in accordance with its management’s general or specific authorization; and (ii) access to the Trust’s assets is permitted only in accordance with its management’s general or specific authorization.
(l) Neither the Advisor nor any director, officer, employee, nor, to the Advisor’s knowledge, any agent, affiliate (within the meaning of Rule 405) or representative of the Advisor, has taken or will take any action in connection with the Fund in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage; and the Advisor and its affiliates (within the meaning of Rule 405) have conducted their businesses in compliance with applicable anti-corruption laws including, without limitation, the FCPA, and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein.
(m) The operations of the Advisor are and have been conducted at all times in compliance with the Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Advisor with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Advisor, threatened.
(i) The Advisor represents that neither it nor any director, officer, employee, nor, to the Advisor’s knowledge, any agent, affiliate (within the meaning of Rule 405) or representative of the Advisor, is an individual or entity (“Advisor Person”) that is, or is owned or controlled by an Advisor Person that is: (A) the subject of any Sanctions, nor (B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, Sudan and Syria).
(ii) The Advisor represents and covenants that it will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Advisor Person: (A) to fund or facilitate any activities or business of or with any Advisor Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (B) in any other manner that will result in a violation of Sanctions by any Advisor Person (including any Advisor Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) The Advisor represents and covenants that, for the past five (5) years, it has not knowingly engaged in, is not now knowingly engaged in, and will not knowingly engage in, any dealings or transactions with any Advisor Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
Appears in 1 contract
Samples: Underwriting Agreement (BlackRock Science & Technology Trust)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Company Partnership that: The Advisor is a corporation duly organized, validly existing, and in good standing under the Administrator that:
a. laws of Delaware, and has full corporate power and authority to perform its obligations under this Agreement, and is in good standing as a corporation qualified to do business in every jurisdiction in which the failure to so qualify would have a materially adverse effect on the Advisor's ability to comply with and perform its obligations under this Agreement. The references to the Advisor and its principals, and its and their trading performance, trading systems, methods, models, strategies, and formulas made in the Advisor's Disclosure Document are accurate and complete in all material respects. This Agreement and the Advisory Agreement have has been duly and validly authorized, executed and delivered on behalf of the Advisor and, assuming due authorization, execution, and each is delivery by the Partnership, constitutes a valid and binding agreement of the Advisor enforceable in accordance with its terms. The performance Each of the Advisor’s obligations under this Agreement Advisor and the consummation of the transactions set forth in this Agreement and in the Advisory Agreement are not contrary to the provisions of the Advisor’s formation documents, or to the best of its knowledge, any applicable statute, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
b. The Advisor principals has all governmental, regulatory and commodity exchange licenses and approvals and has effected all filings and registrations with governmental and regulatory licenses, registrations and approvals agencies in the United States required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement including, without limitation, registration as a commodity trading advisor under the Commodity Exchange Act (the “CE Act”) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications and the failure to be so qualified would materially adversely affect the Advisor’s ability to perform its obligations hereunder or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this Agreement (including, without limitation, registration of the Advisor as a commodity trading advisor under the United States Commodity Exchange Act and membership of the Advisor as a commodity trading advisor in the National Futures Association (the "NFA")). The execution and delivery of this Agreement.
d. Subject , the incurrence of the obligations herein, and the consummation of the transactions contemplated herein will not constitute a breach of, or default under, the Certificate of Incorporation or By-laws or other charter documents of the Advisor or any instrument by which the Advisor or its principals are bound or any order, rule or regulation applicable to the NDA, and as requested Advisor or its principals of the Company, any court or any governmental body or administrative agency having jurisdiction over the Advisor has supplied or its principals. There is not pending nor, to the best of such Advisor's and its principals' knowledge, threatened any action, suit, proceeding, or made available for review investigation before or by any court, governmental, regulatory, self-regulatory, or exchange body to which the Company (and if requested by the Company to Advisor or its designated auditor) all documentsprincipals are a party, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History which are in the Advisor’s possession or to which it has access; providedany assets of such persons are subject, however, that the Advisor may, which might reasonably be expected to result in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The Advisor is not required to be registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), but may so register in the future.
f. As of the date hereof, there has been no material adverse change in the Advisor’s Past Performance History which has not been communicated in writing to and received by the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, or business of the Advisor or in the earnings, affairs or business prospects of the Advisor, whether or not arising in the ordinary course of businessits principals.
h. There is no pending, or to the best of the Advisor’s knowledge, threatened or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which the Advisor or its principals is a party, or to which any of the assets of the Advisor is subject which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability to discharge its obligations to the Company; furthermore, the Advisor has not received any notice of an investigation by the NFA regarding non-compliance with its rules or the CE Act, the Commodity Futures Trading Commission (the “CFTC”) regarding non-compliance with the CE Act or the rules and regulations thereunder or any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge its obligations under this Agreement or the Advisory Agreement.
Appears in 1 contract
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Company Sub-Advisor and the Administrator thatTrust as follows:
a. This Agreement and the Advisory Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. The performance of the Advisor’s obligations under this Agreement and the consummation of the transactions set forth in this Agreement and in the Advisory Agreement are not contrary to the provisions of the Advisor’s formation documents, or to the best of its knowledge, any applicable statute, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
b. The Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement including, without limitation, registration as a commodity trading advisor under the Commodity Exchange Act (the “CE Act”a) and membership as a commodity trading advisor with the National Futures Association (the “NFA”), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications and the failure to be so qualified would materially adversely affect the Advisor’s ability to perform its obligations hereunder or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this Agreement.
d. Subject to the NDA, and as requested of the Company, the Advisor has supplied to or made available for review by the Company (and if requested by the Company to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s Past Performance History which are in the Advisor’s possession or to which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. The Advisor is not required to be registered as an investment adviser under the Investment Advisers Act;
(b) The Advisor is a corporation duly organized and validly existing under the laws of the State of California with the power to own and possess its assets and carry on its business as it is now being conducted;
(c) The execution, delivery and performance by the Advisor of this Agreement are within the Advisor’s powers and have been duly authorized by all necessary action on the part of its Board of Directors, and no action by or in respect of, or filing with, any governmental body, agency or official is required on the part of the Advisor for the execution, delivery and performance by the Advisor of this Agreement, and the execution, delivery and performance by the Advisor of this Agreement do not contravene or constitute a default under (i) any provision of applicable law, rule or regulation, (ii) the Advisor’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Advisor;
(d) The Form ADV of the Advisor as provided to the Sub-Advisor is a true and complete copy of the form as currently filed with the SEC and the information contained therein is accurate and complete in all material respects and does not omit to state any material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading;
(e) The Advisor shall provide to the Sub-Advisor a complete copy of each amendment to its for ADV.
(f) The Advisor acknowledges that it received a copy of the Sub-Advisor’s Form ADV (a copy of which is attached as Exhibit B) prior to the execution of this Agreement; and
(g) The Advisor and the Trust have duly entered into the Advisory Agreement pursuant to which the Trust authorized the Advisor to enter into this Agreement.
(h) The Trust and the Adviser agree that the Sub-Adviser shall have no responsibility or liability arising out of any non-compliance by the Fund or the Adviser with anti-money laundering regulations. The Adviser hereby certifies that the Adviser has implemented an anti-money laundering program and a customer identification program (“CIP”) that each comply with the requirements of applicable law, including the Bank Secrecy Act and U.S.A. PATRIOT of 19402001 and the regulations promulgated thereunder, and that the Adviser will perform the requirements of such programs with respect to the investors in the Fund.
(i) The Advisor and the Trust have policies and procedures designed to detect and deter disruptive trading practices, including “market timing”, and Advisor and Trust agree that they will continue to enforce and abide by such policies and procedures, as amended (the “Advisers Act”)from time to time, but may so register in the future.
f. As of the date hereof, there has been no material adverse change in the Advisor’s Past Performance History which has not been communicated in writing and comply with all existing and future laws relating to and received by the Company.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, of the Advisor or in the earnings, affairs or business prospects of the Advisor, whether or not arising in the ordinary course of business.
h. There is no pending, such matters or to the best purchase and sale of the Advisor’s knowledge, threatened or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which the Advisor or its principals is a party, or to which any of the assets of the Advisor is subject which reasonably might be expected to result in any material adverse change interests in the condition (financial or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability to discharge its obligations to the Company; furthermore, the Advisor has not received any notice of an investigation by the NFA regarding non-compliance with its rules or the CE Act, the Commodity Futures Trading Commission (the “CFTC”) regarding non-compliance with the CE Act or the rules and regulations thereunder or any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge its obligations under this Agreement or the Advisory AgreementFund generally.
Appears in 1 contract
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to Prudential Securities, the Company Trust, the Trustee and the Administrator Managing Owner that:
a. All references in the Registration Statement as of its effective date and the Prospectus as of the Closing Date to (i) the Advisor and its affiliates and the controlling persons, shareholders, directors, officers and employees of any of the foregoing, (ii) the Advisor's Trading Approach (as defined in the Advisory Agreement) and (iii) the actual past performance of discretionary accounts directed by the Advisor or any principal thereof, including the notes to the tables reflecting such actual past performance (hereinafter referred to as the Advisor's "Past Performance History") are complete and accurate in all material respects, and as to such persons, the Advisor's Trading Approach and the Advisor's Past Performance History, the Registration Statement as of its effective date and Prospectus as of each Closing Date contain all information required to be included therein by the Commodity Exchange Act, as amended (the "CE Act"), and the regulations (including interpretations thereof) thereunder, and do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they were made) not misleading. The Advisor also represents and warrants as to the accuracy and completeness in all material respects of the underlying data made available by the Advisor to the Trust and the Managing Owner for purposes of preparing the Pro Forma Performance tables, it being understood that no representation or warranty is being made with respect to the Pro Forma Performance tables or notes thereto. The term "principal" in this Agreement shall have the same meaning as that term in Commodity Futures Trading Commission (the "CFTC") Regulation S 4.10(e) under the CE Act.
b. The Advisor will not distribute the Registration Statement, the Prospectus and/or the selling materials related thereto.
c. This Agreement and the Advisory Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. The performance of the Advisor’s 's obligations under this Agreement and the consummation of the transactions set forth in this Agreement, in the Advisory Agreement and in the Advisory Agreement Registration Statement as of its effective date and Prospectus as of the Closing Date are not contrary to the provisions of the Advisor’s 's formation documents, or to the best of its knowledge, any applicable statute, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
b. d. The Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement and to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date including, without limitation, registration as a commodity trading advisor under the Commodity Exchange CE Act (the “CE Act”) and membership as a commodity trading advisor with the National Futures Association (the “"NFA”), ") and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. e. On the date hereof, hereof the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications and the failure to be so qualified would materially adversely affect the Advisor’s 's ability to perform its obligations hereunder or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this Agreement, and to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date.
d. f. Subject to the NDA, and as requested adequate assurances of the Companyconfidentiality, the Advisor has supplied to or made available for review by the Company Managing Owner and Prudential Securities (and if requested by the Company Managing Owner and Prudential Securities to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s 's Past Performance History in the Registration Statement as of its effective date and the Prospectus as of the Closing Date which are in the Advisor’s 's possession or to which it has access; provided.
g. Without limiting the generality of paragraph a. of this Section 1, however, that neither the Advisor maynor any of its principals has managed, controlled or directed, on an overall discretionary basis, the trading for any commodity account which is required by CFTC regulations and the rules and regulations under the 1933 Act to be disclosed in the Registration Statement as of its sole discretion withhold from any such inspection effective date and the identity Prospectus as of the clients for whom any such accounts are maintainedClosing Date which is not set forth in the Registration Statement as of its effective date and Prospectus as of the Closing Date as required.
e. h. The Advisor does not provide any services to any persons or conduct any business involving advice with respect to investments other than Commodities (as defined in the Advisory Agreement), except as has been disclosed in writing to the Managing Owner. The Advisor is not required to be registered as an investment adviser under the United States Investment Advisers Act of 1940, as amended (the “"Advisers Act”"), but voluntarily may so register in the future.
f. i. As of the date hereof, there has been no material adverse change in the Advisor’s 's Past Performance History as set forth in the Registration Statement or in the Prospectus under the caption "Past Performance Information -- The Series" which has not been communicated in writing to and received by the CompanyManaging Owner and Prudential Securities or their counsel.
g. j. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, (i) there has not been any material adverse change in the condition, financial or otherwise, of the Advisor or in the earnings, affairs or business prospects of the Advisor, whether or not arising in the ordinary course of business, and (ii) there have not been any material transactions entered into by the Advisor other than those in the ordinary course of its business.
h. There k. Except as disclosed in the Registration Statement and in the Prospectus, there is no pending, or to the best of the Advisor’s its knowledge, threatened or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-self- regulatory body or arbitration panel to which the Advisor or its principals is a party, or to which any of the assets of the Advisor is subject which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to (A) impair materially the Advisor’s 's ability to discharge its obligations to the CompanyTrust, or (B) result in a matter which would require disclosure in the Registration Statement and/or Prospectus; furthermore, and the Advisor has not received any notice of an investigation by (i) the NFA regarding non-compliance with its rules or the CE Act, (ii) the Commodity Futures Trading Commission (the “CFTC”) CFTC regarding non-compliance with the CE Act Act, or the rules and regulations thereunder thereunder, or (iii) any exchange regarding non-compliance with the its rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s its ability to discharge its obligations under this Agreement or the Advisory Agreement.
Appears in 1 contract
Samples: Representation Agreement (World Monitor Trust Series B)
Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to Prudential Securities, the Company Trust, the Trustee and the Administrator Managing Owner that:
a. All references in the Registration Statement, consented to in writing by the Advisor in the form attached hereto as Exhibit A, as of its effective date and the Prospectus as of the Closing Date to (i) the Advisor and its affiliates, and the controlling persons, shareholders, directors, officers and employees of any of the foregoing, (ii) the Advisor's Trading Approach (as defined in the Advisory Agreement) and (iii) the actual past performance of discretionary accounts directed by the Advisor or any principal thereof, including the notes to the tables reflecting such actual past performance (hereinafter referred to as the Advisor's "Past Performance History") are complete and accurate in all material respects, and as to such persons, the Advisor's Trading Approach and the Advisor's Past Performance History, and the information related thereto in the Registration Statement as of its effective date and the Prospectus as of each Closing Date, contain all information required to be included therein by the Commodity Exchange Act, as amended (the "CE Act"), and the regulations (including interpretations thereof) thereunder, and do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the Prospectus, in light of the circumstances in which they were made) not misleading. The Advisor also represents and warrants as to the accuracy and completeness in all material respects of the underlying data made available by the Advisor to the Trust and the Managing Owner for purposes of preparing the pro forma performance tables, it being understood that no representation or warranty is being made with respect to the pro forma performance tables or notes thereto. The term "principal" in this Agreement shall have the same meaning as that term in Commodity Futures Trading Commission (the "CFTC") Regulation S 4.10(e) under the CE Act.
b. The Advisor will not distribute the Registration Statement, the Prospectus and/or the selling materials related thereto, except as may be requested by the Managing Owner in connection with "road show" presentations or otherwise.
c. This Agreement and the Advisory Agreement have been duly and validly authorized, executed and delivered on behalf of the Advisor and each is a valid and binding agreement enforceable in accordance with its terms. The performance of the Advisor’s 's obligations under this Agreement and the consummation of the transactions set forth in this Agreement, in the Advisory Agreement and in the Advisory Agreement Registration Statement as of its effective date and Prospectus as of the Closing Date are not contrary to the provisions of the Advisor’s 's formation documents, or to the best of its knowledge, any applicable statute, law or regulation of any jurisdiction, and will not result in any violation, breach or default under any term or provision of any undertaking, contract, agreement or order to which the Advisor is a party or by which the Advisor is bound.
b. d. The Advisor has all governmental and regulatory licenses, registrations and approvals required by law as may be necessary to perform its obligations under the Advisory Agreement and this Agreement and to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date including, without limitation, registration as a commodity trading advisor under the Commodity Exchange CE Act (the “CE Act”) and membership as a commodity trading advisor with the National Futures Association (the “"NFA”"), and it will maintain and renew any required licenses, registrations, approvals or memberships during the term of the Advisory Agreement.
c. e. On the date hereof, the Advisor is, and at all times during the term of this Agreement will be, a corporation duly formed and validly existing and in good standing under the laws of its jurisdiction of incorporation and in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualifications and the failure to be so qualified would materially adversely affect the Advisor’s 's ability to perform its obligations hereunder or under the Advisory Agreement. The Advisor has full capacity and authority to conduct its business and to perform its obligations under this AgreementAgreement and to act as described in the Registration Statement as of its effective date and the Prospectus as of the Closing Date.
d. f. Subject to the NDAadequate assurances of confidentiality, and as requested of the CompanyManaging Owner, the Advisor has supplied to or made available for review by the Company Managing Owner and Prudential Securities (and if requested by the Company Managing Owner and Prudential Securities to its designated auditor) all documents, statements, agreements and workpapers requested by them relating to all accounts covered by the Advisor’s 's Past Performance History in the Registration Statement as of its effective date and the Prospectus as of the Closing Date which are in the Advisor’s 's possession or to which it has access; provided, however, that the Advisor may, in its sole discretion withhold from any such inspection the identity of the clients for whom any such accounts are maintained.
e. g. Without limiting the generality of paragraph a. of this Section 1, neither the Advisor nor any of its principals has managed, controlled or directed, on an overall discretionary basis, the trading for any commodity account which is required by CFTC regulations and the rules and regulations under the 1933 Act to be disclosed in the Registration Statement as of its effective date and the Prospectus as of the Closing Date which is not set forth in the Registration Statement as of its effective date and in the Prospectus as of the Closing Date as required.
h. The Advisor does not provide any services to any persons or conduct any business involving advice with respect to investments other than Commodities (as defined in the Advisory Agreement), except as has been disclosed in writing to the Managing Owner. The Advisor is not required to be registered as an investment adviser under the Investment Advisers Act of 1940, as amended (the “"Advisers Act”"), but voluntarily may so register in the future.
f. i. As of the date hereof, there has been no material adverse change in the Advisor’s 's Past Performance History as set forth in the Registration Statement or in the Prospectus under the caption "SERIES F Past Performance For All Of Its Clients" which has not been communicated in writing to and received by the CompanyManaging Owner and Prudential Securities or their counsel.
g. Except for subsequent performance, as to which no representation is made, since the date of the Advisory Agreement, there has not been any material adverse change in the condition, financial or otherwise, of the Advisor or in the earnings, affairs or business prospects of the Advisor, whether or not arising in the ordinary course of business.
h. There is no pending, or to the best of the Advisor’s knowledge, threatened or contemplated action, suit or proceeding before or by any court, governmental, administrative or self-regulatory body or arbitration panel to which the Advisor or its principals is a party, or to which any of the assets of the Advisor is subject which reasonably might be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Advisor or which reasonably might be expected to materially adversely affect any of the material assets of the Advisor or which reasonably might be expected to impair materially the Advisor’s ability to discharge its obligations to the Company; furthermore, the Advisor has not received any notice of an investigation by the NFA regarding non-compliance with its rules or the CE Act, the Commodity Futures Trading Commission (the “CFTC”) regarding non-compliance with the CE Act or the rules and regulations thereunder or any exchange regarding non-compliance with the rules of such exchange which investigation reasonably might be expected to materially impair the Advisor’s ability to discharge its obligations under this Agreement or the Advisory Agreement.
Appears in 1 contract
Samples: Representation Agreement (World Monitor Trust Ii Series F)
