Representations and Warranties of the Managing Owner. The Managing Owner represents and warrants to the Selling Agent that: (a) A registration statement on Form S-1 for the Trust and the Funds, and as a part thereof a combined prospectus for all Funds with respect to all of the Units being offered (which registration statement together with all amendments thereto, at the time and in the form declared effective by the SEC is referred to herein as the “Registration Statement,” and which prospectus in final form, together with all amendments and supplements thereto, is referred to herein as the “Prospectus”), prepared in accordance with the applicable requirements of the Securities Act of 1933, as amended (the “1933 Act”), the CE Act, and the rules, regulations and instructions promulgated under the 1933 Act and the CE Act, respectively, has been filed with the SEC, the National Association of Securities Dealers, Inc. (the “NASD”) and the NFA pursuant to the 1933 Act and the CE Act and the rules and regulations promulgated, respectively, thereunder, as well as the rules and regulations of the NASD and the NFA, in the form heretofore delivered to the Placement Agent. (b) When the Registration Statement becomes effective under the 1933 Act, the Registration Statement and the Prospectus will contain all material statements and information required to be included therein by the 1933 Act and the CE Act and the rules and regulations, respectively, thereunder, as well as the rules and regulations of the NASD and the NFA, and will conform in all material respects to the requirements of the 1933 Act and the CE Act and the rules and regulations, respectively, thereunder, as well as the rules and regulations of the NASD and the NFA, and will not contain any 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; provided, however, that no representation and warranty is made with respect to information furnished in writing to the Trust or the Managing Owner by the Placement Agent, the Selling Agent or by any Additional Selling Agent (as defined in the Placement Agent Agreement). (c) To the knowledge of the Managing Owner, no order (a “Stop Order”) (i) preventing or suspending the effectiveness of the Registration Statement or use of the Prospectus or any amendment or supplement thereto, (ii) refusing to permit the effectiveness of the Registration Statement, or (iii) suspending the registration or qualification of any Units, has been issued by the SEC, the CFTC, the NASD, the NFA, the “blue sky” or securities authority of any state, or any other federal, state or other governmental agency or body, nor has any of such authorities instituted or, to the knowledge of the Managing Owner, threatened to institute, any proceedings with respect to a Stop Order. (d) The Trust was duly formed and is validly existing as a statutory trust in good standing under the Trust Act, with full power and authority, and all necessary authorizations, approvals and orders of and from all federal, state and other governmental or regulatory officials and bodies, to carry out its obligations under this Agreement, its certificate of trust (the “Trust Certificate”) and the Trust Agreement, and to own its properties and conduct its business as described in the Prospectus. (e) The Managing Owner and each of its principals and employees have, and will continue to have for so long as it is the Managing Owner, all federal and state governmental, regulatory, self-regulatory and commodity exchange approvals and licenses, and the Managing Owner (either by itself or through its principals and employees) has effected all filings and registrations with federal and state governmental, regulatory or self-regulatory agencies required to conduct its business and to act as described in the Registration Statement and Prospectus or required to perform its or their obligations as described under the Trust Agreement (including, without limitation, registration as a commodity pool operator under the Commodity Act and membership in the NFA as a “commodity pool operator” and as a “commodity trading adviser”), except in each case as would not be reasonably likely to have a Material Adverse Effect on the Managing Owner, the Trust or any Fund. (f) The Managing Owner is a limited liability company duly formed, validly existing, and in good standing under the laws of Delaware, with full power and authority, and all necessary consents, authorizations, approvals, orders, licenses, certificates, and permits of and from, and declarations and filings with, all federal, state, local, and other governmental authorities and all courts and other tribunals, to own, lease, license, and use its properties and assets and to carry on its business, in all material respects, in the manner described in the Prospectus. The Managing Owner is duly qualified to do business and is in good standing in each jurisdiction in which its ownership, leasing, licensing, or use of property and assets or the conduct of its business makes such qualification necessary or advisable, except where the failure to be so qualified would not have a material adverse effect on any of the operations, business, properties or assets of the Managing Owner. (g) Each of the Managing Owner and the Trust has all requisite power and authority to execute, deliver, and perform its respective obligations under this Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Managing Owner and the Trust and constitutes a valid and binding agreement of each of the foregoing, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally. (h) The Managing Owner, the Trust and each Fund has the power and authority to enter into the contractual obligations and agreements referred to in the Prospectus (it being understood and agreed that this representation does not cover the Placement Agent Agreement, this Agreement or any other Additional Selling Agent Agreements). None of (x) the offer and sale of the Units, (y) the execution and delivery of this Agreement or (z) compliance by the Managing Owner or the Trust with the provisions of this Agreement, will conflict with, or result in a breach of any of the terms or provisions of, or result in a default under, (i) any order of the SEC, the NASD, the CFTC or the NFA; (ii) the Trust Certificate, the Trust Agreement or the limited liability company agreement of the Managing Owner; (iii) any indenture, mortgage, deed of trust, loan agreement, other evidence of indebtedness or other agreement or instrument to which the Trust, a Fund or the Managing Owner is a party or by which their properties or assets are bound, except in the case of this clause (iii) of an agreement or instrument that would not have a material adverse effect on any of the operations, business, properties or assets of any of the foregoing; or (iv) to their knowledge, any applicable statute or any order, rule or regulation of any court or of any federal, state or other governmental or regulatory agency or body having jurisdiction over the Trust, a Fund or the Managing Owner or any of their properties; nor will any such actions result in the imposition of any lien, charge or encumbrance upon any of the property or assets of the Trust, a Fund or the Managing Owner. (i) The offer and sale of Units have been duly authorized by all necessary action on the part of the Managing Owner and the Trust. The Units to be offered for sale pursuant to the Offering have been validly authorized and, when issued and delivered in accordance with this Agreement, will be validly issued, fully paid and nonassessable, and will constitute valid units of beneficial interest in the Trust which, when the Registration Statement becomes effective under the 1933 Act, will conform in all material respects to the description thereof contained in the Prospectus. The liability of each Limited Owner will be limited as set forth in the Prospectus and the Trust Agreement, and no Limited Owner will be subject to personal liability for the debts, obligations or liabilities of the Trust or the applicable Fund by reason of his being a Limited Owner other than as described in the Prospectus and the Trust Agreement. (j) No consent, approval, authorization, order, registration or qualification of or with any court or any federal, state or other governmental or regulatory agency or body is required for the issuance and sale of Units or the consummation of the transactions contemplated by this Agreement, except for the registration of Units under the 1933 Act, submission of the Prospectus to the SEC, NASD, NFA, the continued registration of the Managing Owner under the CE Act as a commodity pool operator and commodity trading advisor and membership by the Managing Owner in the NFA in such capacities, and such consents, approvals, authorizations, orders, registrations or qualifications as may be required by securities or state “blue sky” laws in connection with the offer and sale of Units. (k) There is no litigation, arbitration, claim, governmental or other proceeding or investigation pending, or, to the knowledge of the Managing Owner, threatened, with respect to the Managing Owner, the Trust or any Fund, or any of their operations, businesses, properties or assets, except as described in the Registration Statement or Prospectus or such as would not, if successful, have a material adverse effect upon the operations, businesses, properties or assets of the Managing Owner, the Trust or any Fund, as the case may be. None of the Managing Owner, the Trust or any Fund is in violation in any material respect of any law, rule, regulation, order, judgment or decree, except as described in the Registration Statement or Prospectus or as would not have a material adverse effect upon the operations, business, properties or assets of the Managing Owner, the Trust or any Fund. (l) The Managing Owner is not, nor, to the knowledge of the Managing Owner, is any other party, in violation or breach of, or in default with respect to, any material provision of any written contract, agreement, instrument, lease, license or legally binding understanding (“Contract”) which is material to the Managing Owner and which relates to the Trust or the Offering; and each such Contract is in full force and is the legal, valid, and binding obligation of the Managing Owner and/or the Trust and is enforceable as to the Managing Owner and/or the Trust in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally. The Managing Owner has no knowledge that any party to any such Contract has any current intention of canceling, not renewing or not performing with respect thereto. The Managing Owner enjoys peaceful and undisturbed possession under all leased property from which operations related to the Trust or the Offering are conducted. The Managing Owner is not in violation or breach of, or in default with respect to, any term of its certificate of formation or operating agreement. (m) When the Registration Statement becomes effective under the 1933 Act, each Contract required to be (i) described in the Registration Statement or the Prospectus will be properly described therein and (ii) filed as an exhibit to the Registration Statement will be filed with the SEC as an exhibit to the Registration Statement. (n) The financial statements of the Managing Owner and the Trust contained in the Registration Statement and the Prospectus have been examined by an independent registered public accounting firm, as required by the CE Act and the 1933 Act and the rules and regulations of the CFTC and the SEC, respectively, and when the Registration Statement becomes effective under the 1933 Act, fairly present in all material respects the financial condition and the results of operations thereof as of the dates and for the periods therein specified; and such financial statements have been prepared in accordance with generally accepted accounting principles in the United States consistently applied throughout the periods involved; and no other financial statements are required by Form S-1 to be included in the Registration Statement or the Prospectus. (o) Neither the Managing Owner, nor, to the knowledge of the Managing Owner, any manager, member, director, officer, agent, employee, or other person associated with or acting on behalf of the Managing Owner has, directly or indirectly, (i) used any corporate funds for unlawful contributions, gifts, entertainment, or other unlawful expenses relating to political activity; (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from funds of the Managing Owner; (iii) violated any provision of the Foreign Corrupt Practices Act of 1977, as amended or (iv) made any bribe, rebate, payoff, influence payment, kickback, or other unlawful payment. (p) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, and except as described in the Registration Statement or Prospectus, the Trust has not (i) issued any securities or incurred any liability or obligation, primary or contingent, for borrowed money; (ii) entered into any material transaction not in the ordinary course of business or (iii) declared or paid any dividend on its capital stock. (q) Except as may be set forth in the Registration Statement, Prospectus, this Agreement or any Additional Selling Agent Agreement, neither the Trust nor any Fund has incurred any liability for a fee, commission or other compensation on account of the employment of a broker or finder in connection with the transactions contemplated by this Agreement. (r) Except as contemplated by the Offering, the Placement Agent Agreement, this Agreement or any Additional Selling Agent Agreement or as may have been waived, no Person has any right of first refusal, preemptive right, right to any compensation, or other similar right or option, in connection with the Offering or this Agreement, or any of the transactions contemplated hereby or thereby. (s) Except as may be set forth in the Registration Statement or Prospectus or as may have been waived, no Person has the right to require registration of Units or other securities of the Company upon the filing or effectiveness of the Registration Statement.

Appears in 3 contracts

Samples: Placement Agreement (Brookshire Raw Materials (U.S.) Metals CDN Fund), Placement Agreement (Brookshire Raw Materials (U.S.) Metals CDN Fund), Placement Agreement (Brookshire Raw Materials (U.S.) Energy USD Fund)

Representations and Warranties of the Managing Owner. The Managing Owner represents and warrants to the ~~Selling~~ Placement Agent that: (a) A registration statement on Form S-1 for the Trust and the Funds, and as a part thereof a combined prospectus for all Funds with respect to all of the Units being offered (which registration statement together with all amendments thereto, at the time and in the form declared effective by the SEC is referred to herein as the “Registration Statement,” and which prospectus in final form, together with all amendments and supplements thereto, is referred to herein as the “Prospectus”), prepared in accordance with the applicable requirements of the Securities Act of 1933, as amended (the “1933 Act”), the CE Act, and the rules, regulations and instructions promulgated under the 1933 Act and the CE Act, respectively, has been filed with the SEC, the National Association of Securities Dealers, Inc. (the “NASD”) and the NFA pursuant to the 1933 Act and the CE Act and the rules and regulations promulgated, respectively, thereunder, as well as the rules and regulations of the NASD and the NFA, in the form heretofore delivered to the Placement Agent. (b) When the Registration Statement becomes effective under the 1933 Act, the Registration Statement and the Prospectus will contain all material statements and information required to be included therein by the 1933 Act and the CE Act and the rules and regulations, respectively, thereunder, as well as the rules and regulations of the NASD and the NFA, and will conform in all material respects to the requirements of the 1933 Act and the CE Act and the rules and regulations, respectively, thereunder, as well as the rules and regulations of the NASD and the NFA, and will not contain any 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; provided, however, that no representation and warranty is made with respect to information furnished in writing to the Trust or the Managing Owner by the Placement ~~Agent, the Selling~~ Agent or by any Additional Selling ~~Agent (as defined in the Placement Agent Agreement)~~Agent. (c) To the knowledge of the Managing Owner, no order (a “Stop Order”) (i) preventing or suspending the effectiveness of the Registration Statement or use of the Prospectus or any amendment or supplement thereto, (ii) refusing to permit the effectiveness of the Registration Statement, or (iii) suspending the registration or qualification of any Units, has been issued by the SEC, the CFTC, the NASD, the NFA, the “blue sky” or securities authority of any state, or any other federal, state or other governmental agency or body, nor has any of such authorities instituted or, to the knowledge of the Managing Owner, threatened to institute, any proceedings with respect to a Stop Order. (d) The Trust was duly formed and is validly existing as a statutory trust in good standing under the Trust Act, with full power and authority, and all necessary authorizations, approvals and orders of and from all federal, state and other governmental or regulatory officials and bodies, to carry out its obligations under this Agreement, its certificate of trust (the “Trust Certificate”) and the Trust Agreement, and to own its properties and conduct its business as described in the Prospectus. (e) The Managing Owner and each of its principals and employees have, and will continue to have for so long as it is the Managing Owner, all federal and state governmental, regulatory, self-regulatory and commodity exchange approvals and licenses, and the Managing Owner (either by itself or through its principals and employees) has effected all filings and registrations with federal and state governmental, regulatory or self-regulatory agencies required to conduct its business and to act as described in the Registration Statement and Prospectus or required to perform its or their obligations as described under the Trust Agreement (including, without limitation, registration as a commodity pool operator under the Commodity Act and membership in the NFA as a “commodity pool operator” and as a “commodity trading adviser”), except in each case as would not be reasonably likely to have a Material Adverse Effect on the Managing Owner, the Trust or any Fund. (f) The Managing Owner is a limited liability company duly formed, validly existing, and in good standing under the laws of Delaware, with full power and authority, and all necessary consents, authorizations, approvals, orders, licenses, certificates, and permits of and from, and declarations and filings with, all federal, state, local, and other governmental authorities and all courts and other tribunals, to own, lease, license, and use its properties and assets and to carry on its business, in all material respects, in the manner described in the Prospectus. The Managing Owner is duly qualified to do business and is in good standing in each jurisdiction in which its ownership, leasing, licensing, or use of property and assets or the conduct of its business makes such qualification necessary or advisable, except where the failure to be so qualified would not have a material adverse effect on any of the operations, business, properties or assets of the Managing Owner. (g) Each of the Managing Owner and the Trust has all requisite power and authority to execute, deliver, and perform its respective obligations under this Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Managing Owner and the Trust and constitutes a valid and binding agreement of each of the foregoing, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally. (h) The Managing Owner, the Trust and each Fund has the power and authority to enter into the contractual obligations and agreements referred to in the Prospectus (it being understood and agreed that this representation does not cover ~~the Placement Agent Agreement,~~ this Agreement ~~or any other~~ and the Additional Selling Agent Agreements). None of (x) the offer and sale of the Units, (y) the execution and delivery of this Agreement or (z) compliance by the Managing Owner or the Trust with the provisions of this Agreement, will conflict with, or result in a breach of any of the terms or provisions of, or result in a default under, (i) any order of the SEC, the NASD, the CFTC or the NFA; (ii) the Trust Certificate, the Trust Agreement or the limited liability company agreement of the Managing Owner; (iii) any indenture, mortgage, deed of trust, loan agreement, other evidence of indebtedness or other agreement or instrument to which the Trust, a Fund or the Managing Owner is a party or by which their properties or assets are bound, except in the case of this clause (iii) of an agreement or instrument that would not have a material adverse effect on any of the operations, business, properties or assets of any of the foregoing; or (iv) to their knowledge, any applicable statute or any order, rule or regulation of any court or of any federal, state or other governmental or regulatory agency or body having jurisdiction over the Trust, a Fund or the Managing Owner or any of their properties; nor will any such actions result in the imposition of any lien, charge or encumbrance upon any of the property or assets of the Trust, a Fund or the Managing Owner. (i) The offer and sale of Units have been duly authorized by all necessary action on the part of the Managing Owner and the Trust. The Units to be offered for sale pursuant to the Offering have been validly authorized and, when issued and delivered in accordance with this Agreement, will be validly issued, fully paid and nonassessable, and will constitute valid units of beneficial interest in the Trust which, when the Registration Statement becomes effective under the 1933 Act, will conform in all material respects to the description thereof contained in the Prospectus. The liability of each Limited Owner will be limited as set forth in the Prospectus and the Trust Agreement, and no Limited Owner will be subject to personal liability for the debts, obligations or liabilities of the Trust or the applicable Fund by reason of his being a Limited Owner other than as described in the Prospectus and the Trust Agreement. (j) No consent, approval, authorization, order, registration or qualification of or with any court or any federal, state or other governmental or regulatory agency or body is required for the issuance and sale of Units or the consummation of the transactions contemplated by this Agreement, except for the registration of Units under the 1933 Act, submission of the Prospectus to the SEC, NASD, NFA, the continued registration of the Managing Owner under the CE Act as a commodity pool operator and commodity trading advisor and membership by the Managing Owner in the NFA in such capacities, and such consents, approvals, authorizations, orders, registrations or qualifications as may be required by securities or state “blue sky” laws in connection with the offer and sale of Units. (k) There is no litigation, arbitration, claim, governmental or other proceeding or investigation pending, or, to the knowledge of the Managing Owner, threatened, with respect to the Managing Owner, the Trust or any Fund, or any of their operations, businesses, properties or assets, except as described in the Registration Statement or Prospectus or such as would not, if successful, have a material adverse effect upon the operations, businesses, properties or assets of the Managing Owner, the Trust or any Fund, as the case may be. None of the Managing Owner, the Trust or any Fund is in violation in any material respect of any law, rule, regulation, order, judgment or decree, except as described in the Registration Statement or Prospectus or as would not have a material adverse effect upon the operations, business, properties or assets of the Managing Owner, the Trust or any Fund. (l) The Managing Owner is not, nor, to the knowledge of the Managing Owner, is any other party, in violation or breach of, or in default with respect to, any material provision of any written contract, agreement, instrument, lease, license or legally binding understanding (“Contract”) which is material to the Managing Owner and which relates to the Trust or the Offering; and each such Contract is in full force and is the legal, valid, and binding obligation of the Managing Owner and/or the Trust and is enforceable as to the Managing Owner and/or the Trust in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally. The Managing Owner has no knowledge that any party to any such Contract has any current intention of canceling, not renewing or not performing with respect thereto. The Managing Owner enjoys peaceful and undisturbed possession under all leased property from which operations related to the Trust or the Offering are conducted. The Managing Owner is not in violation or breach of, or in default with respect to, any term of its certificate of formation or operating agreement. (m) When the Registration Statement becomes effective under the 1933 Act, each Contract required to be (i) described in the Registration Statement or the Prospectus will be properly described therein and (ii) filed as an exhibit to the Registration Statement will be filed with the SEC as an exhibit to the Registration Statement. (n) The financial statements of the Managing Owner and the Trust contained in the Registration Statement and the Prospectus have been examined by an independent registered public accounting firm, as required by the CE Act and the 1933 Act and the rules and regulations of the CFTC and the SEC, respectively, and when the Registration Statement becomes effective under the 1933 Act, fairly present in all material respects the financial condition and the results of operations thereof as of the dates and for the periods therein specified; and such financial statements have been prepared in accordance with generally accepted accounting principles in the United States consistently applied throughout the periods involved; and no other financial statements are required by Form S-1 to be included in the Registration Statement or the Prospectus. (o) Neither the Managing Owner, nor, to the knowledge of the Managing Owner, any manager, member, director, officer, agent, employee, or other person associated with or acting on behalf of the Managing Owner has, directly or indirectly, (i) used any corporate funds for unlawful contributions, gifts, entertainment, or other unlawful expenses relating to political activity; (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from funds of the Managing Owner; (iii) violated any provision of the Foreign Corrupt Practices Act of 1977, as amended or (iv) made any bribe, rebate, payoff, influence payment, kickback, or other unlawful payment. (p) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, and except as described in the Registration Statement or Prospectus, the Trust has not (i) issued any securities or incurred any liability or obligation, primary or contingent, for borrowed money; (ii) entered into any material transaction not in the ordinary course of business or (iii) declared or paid any dividend on its capital stock. (q) Except as may be set forth in the Registration Statement, Prospectus, this Agreement or any Additional Selling Agent Agreement, neither the Trust nor any Fund has incurred any liability for a fee, commission or other compensation on account of the employment of a broker or finder in connection with the transactions contemplated by this Agreement. (r) Except as contemplated by the Offering, ~~the Placement Agent Agreement,~~ this Agreement or any Additional Selling Agent Agreement or as may have been waived, no Person has any right of first refusal, preemptive right, right to any compensation, or other similar right or option, in connection with the Offering or this Agreement, or any of the transactions contemplated hereby or thereby. (s) Except as may be set forth in the Registration Statement or Prospectus or as may have been waived, no Person has the right to require registration of Units or other securities of the Company upon the filing or effectiveness of the Registration Statement.

Appears in 3 contracts

Samples: Placement Agreement (Brookshire Raw Materials (U.S.) Energy USD Fund), Placement Agreement (Brookshire Raw Materials (U.S.) Metals CDN Fund), Placement Agreement (Brookshire Raw Materials (U.S.) Metals CDN Fund)

Representations and Warranties of the Managing Owner. The Managing Owner represents and warrants to the Selling Agent ~~that~~and the Trading Advisors as follows: (a) A registration statement on Form S-1 for the Trust and the Funds, and as a part thereof a combined prospectus for all Funds with respect to all of the Units being offered (which registration statement together with all amendments thereto, at the time and in the form declared effective by the SEC is referred to herein as the “Registration Statement,” and which prospectus in final form, together with all amendments and supplements thereto, is referred to herein as the “Prospectus”), The Memorandum was prepared in ~~accordance~~ full conformity with the applicable requirements of ~~the Securities Act of 1933, as amended (the “1933 Act”),~~ the CE Act, and the rules, regulations and instructions promulgated under the ~~1933 Act and the~~ CE Act, ~~respectively, has been filed with the SEC, the National Association of Securities Dealers, Inc. (the “NASD”) and the NFA pursuant to the 1933 Act and the CE Act~~ and the rules and regulations ~~promulgated, respectively, thereunder, as well as the rules and regulations~~ of ~~the NASD and~~ the NFA, in the form heretofore delivered to the ~~Placement~~ Selling Agent.; (b) ~~When the Registration Statement becomes effective under the 1933 Act, the Registration Statement and the Prospectus will contain~~ The Memorandum contains all ~~material~~ statements ~~and information~~ that are required to be ~~included therein by the 1933 Act and the CE Act and the rules and regulations~~made therein, ~~respectively, thereunder, as well as the rules and regulations of the NASD and the NFA, and will conform~~ conforms in all material respects to the requirements of the ~~1933 Act and the~~ CE Act and the rules and ~~regulations, respectively, thereunder, as well as the rules and~~ regulations of the ~~NASD~~ CFTC and the NFA, thereunder, and ~~will~~ does not contain ~~any~~ 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~~therein, in light of the circumstances in which they were made) , not misleading; provided, however, that no this representation and warranty is shall not apply to any statements or omissions made in reliance upon and in conformity with ~~respect to~~ information furnished ~~in writing~~ to the Trust or the Managing Owner by the ~~Placement~~ Selling Agent, the ~~Selling Agent~~ Trustee, the Administrator, any commodity broker who has contracted to provide commodity brokerage services to the Trust (each, a “Commodity Broker”) or their respective agents or by or on behalf of any ~~Additional Selling Agent~~ Trading Advisor or any other commodity trading advisor (~~as defined in~~ an “Other Advisor”) engaged by the ~~Placement Agent Agreement)~~Managing Owner on behalf of the Trust for use therein. (c) To The certificate of trust (the ~~knowledge~~ “Certificate of Trust”) pursuant to which the Trust has been formed and the Third Amended and Restated Declaration of Trust and Trust Agreement of the ~~Managing Owner~~Trust, ~~no order~~ as amended from time to time (a the “~~Stop Order~~Trust Agreement”~~) (i) preventing or suspending~~ ), provide for the ~~effectiveness~~ subscription and sale of the ~~Registration Statement or use~~ Units of the ~~Prospectus or any amendment or supplement thereto, (ii) refusing~~ Trust; all action required to ~~permit~~ be taken by the ~~effectiveness~~ Managing Owner and the Trust as a condition to the sale of the ~~Registration Statement, or (iii) suspending the registration or qualification of any Units,~~ Units to qualified subscribers therefore has been ~~issued by~~ taken; and, upon payment of the ~~SEC~~consideration therefore specified in all accepted Subscription Agreements and Powers of Attorney, the ~~CFTC, the NASD, the NFA, the “blue sky” or securities authority~~ Units will constitute valid units of ~~any state, or any other federal, state or other governmental agency or body, nor has any of such authorities instituted or, to the knowledge~~ beneficial interest of the ~~Managing Owner, threatened~~ Trust as to ~~institute, any proceedings with respect~~ which the subscribers thereto will have the same limitation on personal liability as stockholders in a private corporation for profit organized under the laws of the State of Delaware and will be Unitholders of the Trust entitled to ~~a Stop Order~~all the applicable benefits under the Trust Agreement and the Delaware Act. (d) The Trust ~~was~~ is a statutory trust duly ~~formed~~ organized pursuant to the Delaware Act and is validly existing ~~as a statutory trust~~ and in good standing under the ~~Trust Act,~~ laws of the State of Delaware with full power and ~~authority~~authority to engage in the business to be conducted by it, as described in the Memorandum. The Trust is in good standing and ~~all~~ qualified to do business in each jurisdiction in which such qualification is necessary ~~authorizations, approvals~~ in order to protect the limited liability of Unitholders and ~~orders~~ in which the nature or conduct of its business as described in the Memorandum requires such qualification and ~~from all federal, state and other governmental or regulatory officials and bodies,~~ the failure to ~~carry out~~ be so qualified would materially adversely affect its ability to perform its obligations under this ~~Agreement~~Agreement and the Advisory Agreement (as defined below). (e) The Managing Owner is, and will continue to be so long as it is the managing owner of the Trust, a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and is in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its ~~certificate of~~ business as described in the Memorandum requires such qualification and the failure to be so qualified would materially adversely affect the Trust’s or the Managing Owner’s ability to perform its obligations hereunder. (f) The Trust and the Managing Owner each have full trust (and corporate power and authority, as the ~~“Trust Certificate”) and~~ case may be, under applicable law to perform its respective obligations under the Trust Agreement, the Advisory Agreements by and among each Trading Advisor, the Trust and the Managing Owner (the “Advisory Agreements”) (references in this Agreement to the Advisory Agreements intend, in respect of each Trading Advisor, to refer only to the Advisory Agreement to which such Trading Advisor is a party) and this Agreement, and to ~~own its properties and~~ conduct its business as described in the ~~Prospectus~~Memorandum. (eg) Each of the Trust Agreement, the Advisory Agreements and this Agreement has been duly and validly authorized, executed and delivered by the Managing Owner on behalf of the Trust and by the Managing Owner, and each constitutes a valid, binding and enforceable agreement of the Trust and the Managing Owner in accordance with its terms. (h) The execution and delivery of the Trust Agreement, the Advisory Agreements and this Agreement, the incurrence of the obligations set forth therein and herein and the consummation of the transactions contemplated herein and in the Memorandum: (i) will not constitute a breach of, or default under, any instrument or agreement by which the Managing Owner, the Trust, or any of their property or assets is bound, or any statute, order, rule or regulation applicable to the Managing Owner or the Trust, of any court or any governmental body or administrative agency having jurisdiction over the Managing Owner or the Trust; (ii) will not result in the creation or imposition of any lien, charge or encumbrance on any property or assets of the Managing Owner or the Trust; (iii) will not give any party a right to terminate its obligations or result in the acceleration of any obligations under any material instrument or agreement by which the Managing Owner or the Trust, or any of their respective property or assets is bound; and (iv) will not result in any material liability (other than such as may be contemplated hereby and under the Agreements enumerated in this subparagraph) on the part of either the Managing Owner or the Trust. (i) Except as otherwise disclosed in the Memorandum, there is not pending nor, to the best of the Managing Owner’s knowledge, threatened any action, suit or proceeding before or by any court or other governmental body to which the Managing Owner or the Trust is a party, or to which any of the assets of the Managing Owner or the Trust is subject, which might reasonably be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Managing Owner or the Trust or which is required to be disclosed in the Memorandum pursuant to the CE Act or the CFTC Regulations. The Managing Owner has not received any notice of an investigation or warning letter from the NFA or CFTC regarding non-compliance by the Managing Owner with the CE Act or the regulations thereunder. (j) All authorizations, consents or orders of any court, or of any federal, state or other governmental or regulatory agency or body required for the authorization, issuance, offer and sale of the Units have been obtained. (k) The Managing Owner and each of its principals and employees have, and will continue to have ~~for~~ so long as it is the ~~Managing Owner~~managing owner of the Trust, all federal and state governmental, regulatory, self-regulatory and commodity exchange approvals and licenses, and the Managing Owner (either by on behalf of itself or ~~through~~ its principals and employees) has effected all filings and registrations with federal and state governmental, regulatory or self-regulatory agencies required to conduct its business and to act as described in the ~~Registration Statement and Prospectus~~ Memorandum or required to perform its or their obligations as described under the Trust Agreement (including, without limitation, registration (i) as a commodity pool operator under the ~~Commodity Act~~ CE Act, and (ii) membership in the NFA as a “commodity pool operator,” and as a “commodity trading adviser”), except in each case as would not be reasonably likely to have a Material Adverse Effect on the Managing Owner, the Trust or any Fund. (f) The Managing Owner is a limited liability company duly formed, validly existing, and in good standing under the laws of Delaware, with full power and authority, and all necessary consents, authorizations, approvals, orders, licenses, certificates, and permits of and from, and declarations and filings with, all federal, state, local, and other governmental authorities and all courts and other tribunals, to own, lease, license, and use its properties and assets and to carry on its business, in all material respects, in the manner described in the Prospectus. The Managing Owner is duly qualified to do business and is in good standing in each jurisdiction in which its ownership, leasing, licensing, or use of property and assets or the conduct of its business makes such qualification necessary or advisable, except where the failure to be so qualified would not have a material adverse effect on any of the operations, business, properties or assets of the Managing Owner. (g) Each of the Managing Owner this Agreement and the ~~Trust has all requisite power and authority to execute, deliver, and perform its respective~~ performance of such obligations under this Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Managing Owner and the Trust and constitutes a valid and binding agreement of each of the foregoing, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally. (h) The Managing Owner, the Trust and each Fund has the power and authority to enter into the contractual obligations and agreements referred to in the Prospectus (it being understood and agreed that this representation does will not cover the Placement Agent Agreement, this Agreement or any other Additional Selling Agent Agreements). None of (x) the offer and sale of the Units, (y) the execution and delivery of this Agreement or (z) compliance by the Managing Owner or the Trust with the provisions of this Agreement, will conflict with, contravene or result in a breach of any of the terms or provisions of, or result in a default under, (i) any order of the SEC, the NASD, the CFTC or the NFA; (ii) the Trust Certificate, the Trust Agreement or the limited liability company agreement provision of the Managing Owner; ’s certificate of incorporation, by-laws or any agreement, instrument, order, law or regulation binding upon it or any of its employees or principals. The principals of the Managing Owner identified in the Memorandum are all of the principals of the Managing Owner, as “principals” is defined by the CFTC regulations. Such principals are duly registered as such on the Managing Owner’s commodity pool operator Form 7-R registration. (l) The Trust does not require any federal or state governmental, regulatory, self-regulatory or commodity exchange approvals or licenses, and the Trust need not effect any filings or registrations with any federal or state governmental agencies in order to conduct its business and to act as contemplated by the Memorandum and to issue and sell the Units (other than (i) filings on Form D under Regulation D under the Securities Act of 1933, as amended (the “1933 Act”), (ii) filings with the NFA pursuant to the CE Act and (iii) ~~any indenture, mortgage, deed of trust, loan agreement, other evidence of indebtedness or other agreement or instrument to which~~ notice filings with the Trust, a Fund or the Managing Owner is a party or by which their properties or assets are bound, except in the case of this clause (iii) of an agreement or instrument that would not have a material adverse effect on any of the operations, business, properties or assets of any of the foregoing; or (iv) to their knowledge, any applicable statute or any order, rule or regulation of any court or of any federal, states under state or other governmental or regulatory agency or body having jurisdiction over the Trust, a Fund or the Managing Owner or any of their properties; nor will any such actions result in the imposition of any lien, charge or encumbrance upon any of the property or assets of the Trust, a Fund or the Managing Ownersecurities laws). (im) The ~~offer and sale~~ Managing Owner has the financial resources necessary to meet its obligations to the Selling Agent hereunder. (n) All of ~~Units have been duly authorized by all necessary action on~~ the ~~part~~ information regarding the actual performance of the accounts of the Managing Owner and the Trust. The Units to be offered for sale pursuant to the Offering have been validly authorized and, when issued and delivered in accordance with this Agreement, will be validly issued, fully paid and nonassessable, and will constitute valid units of beneficial interest Managing Owner’s principals set forth in the ~~Trust which, when the Registration Statement becomes effective under the 1933 Act, will conform~~ Memorandum is complete and accurate in all material respects ~~to the description thereof contained~~ and, except as disclosed in the ~~Prospectus. The liability of each Limited Owner will be limited as set forth~~ Memorandum, is in accordance and compliance with the Prospectus and the Trust Agreement, and no Limited Owner will be subject to personal liability for the debts, obligations or liabilities of the Trust or the applicable Fund by reason of his being a Limited Owner other than as described in the Prospectus and the Trust Agreement. (j) No consent, approval, authorization, order, registration or qualification of or with any court or any federal, state or other governmental or regulatory agency or body is required for the issuance and sale of Units or the consummation of the transactions contemplated by this Agreement, except for the registration of Units under the 1933 Act, submission of the Prospectus to the SEC, NASD, NFA, the continued registration of the Managing Owner disclosure requirements under the CE Act and the CFTC Regulations as well as of the NFA. (o) The Managing Owner acknowledges that the Selling Agent’s customer and Correspondent lists constitute proprietary data belonging to the Selling Agent, and the Managing Owner agrees that it will not disseminate any confidential information regarding any of the foregoing, except as required by law. The Managing Owner agrees that (i) it will not, directly or indirectly, solicit a ~~commodity pool operator and commodity trading advisor and membership~~ client introduced to the Managing Owner or the Trust by the Selling Agent or any of its Correspondents which client does not have a verifiable preexisting relationship with the Managing Owner (a “Protected Client”) to establish a managed account with the Managing Owner or to invest in another fund managed by the Managing Owner in unless such solicitation is conducted through the ~~NFA in such capacities,~~ Selling Agent or as otherwise agreed to by the Selling Agent and ~~such consents, approvals, authorizations, orders, registrations or qualifications as may be required by securities or state “blue sky” laws in connection with the offer and sale of Units.~~ (kii) ~~There is no litigation, arbitration, claim, governmental or other proceeding or investigation pending, or, to the knowledge of the Managing Owner, threatened, with respect to~~ if any Protected Client approaches the Managing Owner, the ~~Trust~~ Managing Owner will not accept the account or ~~any Fund, or any~~ investment without the Selling Agent’s approval. In the event of ~~their operations, businesses, properties or assets, except as described in the Registration Statement or Prospectus or such as would not, if successful, have~~ a ~~material adverse effect upon the operations, businesses, properties or assets~~ breach of the Managing Owner, the Trust or any Fund, as the case may be. None of the Managing Owner, the Trust or any Fund is in violation in any material respect of any law, rule, regulation, order, judgment or decree, except as described in the Registration Statement or Prospectus or as would not have a material adverse effect upon the operations, business, properties or assets of the Managing Owner, the Trust or any Fund. (l) The Managing Owner is not, nor, to the knowledge of the Managing Owner, is any other party, in violation or breach of, or in default with respect to, any material provision of any written contract, agreement, instrument, lease, license or legally binding understanding (“Contract”) which is material to the Managing Owner and which relates to the Trust or the Offering; and each such Contract is in full force and is the legal, valid, and binding obligation agreements of the Managing Owner ~~and/or the Trust and is enforceable as to~~ in this Section 1(o), the Managing Owner ~~and/or~~ agrees to compensate the Selling Agent with respect to that Protected Client in an amount equal to the amount of ongoing compensation to be paid by the Trust ~~in accordance with its terms, subject~~ to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally. The Managing Owner has no knowledge that any party to any such Contract has any current intention of canceling, not renewing or not performing the Selling Agent with respect ~~thereto~~to such a Protected Client. ~~The Managing Owner enjoys peaceful and undisturbed possession under all leased property from which operations related~~ Such payments are deemed to be a reasonable estimate of the damage to the ~~Trust or~~ Selling Agent and shall be the Offering are conducted. The Managing Owner is not in violation or breach of, or in default with respect to, any term of its certificate of formation or operating agreement. (m) When the Registration Statement becomes effective under the 1933 Act, each Contract required to be (i) described in the Registration Statement or the Prospectus will be properly described therein and (ii) filed as an exhibit to the Registration Statement will be filed with the SEC as an exhibit to the Registration Statement. (n) The financial statements of the Managing Owner and the Trust contained in the Registration Statement and the Prospectus have been examined by an independent registered public accounting firm, as required by the CE Act and the 1933 Act and the rules and regulations of the CFTC and the SEC, respectively, and when the Registration Statement becomes effective under the 1933 Act, fairly present in all material respects the financial condition and the results of operations thereof as of the dates and Selling Agent’s exclusive remedy for ~~the periods therein specified; and~~ such financial statements have been prepared in accordance with generally accepted accounting principles in the United States consistently applied throughout the periods involved; and no other financial statements are required by Form S-1 to be included in the Registration Statement or the Prospectus. (o) Neither the Managing Owner, nor, to the knowledge of the Managing Owner, any manager, member, director, officer, agent, employee, or other person associated with or acting on behalf of the Managing Owner has, directly or indirectly, (i) used any corporate funds for unlawful contributions, gifts, entertainment, or other unlawful expenses relating to political activity; (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from funds of the Managing Owner; (iii) violated any provision of the Foreign Corrupt Practices Act of 1977, as amended or (iv) made any bribe, rebate, payoff, influence payment, kickback, or other unlawful paymentbreach. (p) ~~Subsequent~~ The Trust will not be required to register as an investment company under the ~~respective dates as~~ Investment Company Act of ~~which information is given~~ 1940 in ~~the Registration Statement and the Prospectus, and except~~ order to conduct its operations as described in the Registration Statement or Prospectus, the Trust has not (i) issued any securities or incurred any liability or obligation, primary or contingent, for borrowed money; (ii) entered into any material transaction not in the ordinary course of business or (iii) declared or paid any dividend on its capital stockMemorandum. (q) Except as may be set forth in the Registration Statement, Prospectus, this Agreement or any Additional Selling Agent Agreement, neither the Trust nor any Fund has incurred any liability for a fee, commission or other compensation on account of the employment of a broker or finder in connection with the transactions contemplated by this Agreement. (r) Except as contemplated by the Offering, the Placement Agent Agreement, this Agreement or any Additional Selling Agent Agreement or as may have been waived, no Person has any right of first refusal, preemptive right, right to any compensation, or other similar right or option, in connection with the Offering or this Agreement, or any of the transactions contemplated hereby or thereby. (s) Except as may be set forth in the Registration Statement or Prospectus or as may have been waived, no Person has the right to require registration of Units or other securities of the Company upon the filing or effectiveness of the Registration Statement.

Appears in 1 contract

Samples: Selling Agreement (World Monitor Trust III - Series J)

Representations and Warranties of the Managing Owner. The Managing Owner represents and warrants to the Selling Agent ~~that~~and the Trading Advisors as follows: (a) A registration statement on Form S-1 for the Trust and ~~the Funds, and~~ as a part thereof a combined prospectus for all ~~Funds~~ Series with respect to all of the Units being offered (which registration ~~statement~~ statement, together with all amendments thereto, at the ~~time~~ times and in the ~~form~~ forms declared effective by the ~~SEC is~~ Securities and Exchange Commission (the "SEC") shall be referred to herein as the “"Registration Statement,” ", and which prospectus in final form, together with all amendments and supplements thereto, is shall be referred to herein as the “"Prospectus”"), prepared in ~~accordance~~ full conformity with the applicable requirements of the Securities Act of 1933, as amended (the “"1933 Act”"), the CE Act, and the rules, regulations and instructions promulgated under the 1933 Act and the CE Act, respectively, ~~has~~ have been filed with the SEC, the National Association of Securities Dealers, Inc. (the “"NASD”") and the NFA pursuant to the 1933 ~~Act and~~ Act, the CE Act and the rules and regulations promulgated, respectively, thereunder, as well as the rules and regulations of the NASD and the NFA, in the form heretofore delivered to the ~~Placement~~ Selling Agent.; (b) ~~When~~ To the best of the Managing Owner's knowledge, no order preventing or suspending the effectiveness of the Registration Statement or use of the Prospectus or any previous prospectus with respect to the Units has been issued by the SEC, the CFTC, the NASD, the NFA or any other Federal, state or other governmental agency or body. The Registration Statement contains all statements which are required to be made therein, conforms in all material respects to the requirements of the 1933 Act and the CE Act and the rules and regulations of the SEC and the CFTC, respectively, thereunder, and does 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; and, when the Registration Statement becomes effective under the 1933 ~~Act~~Act and at all times subsequent thereto up to and including the Initial Closing Time for each Series, and thereafter up to and including each subsequent closing date during the Continuous Offering Period, as such terms are hereinafter defined, the Registration Statement and the Prospectus will contain all material statements and information required to be included therein by the 1933 Act and the CE Act and the rules and regulations, respectively, thereunder, as well as the rules and regulations of the NASD and the NFA, and will conform in all material respects to the requirements of the 1933 ~~Act and~~ Act, the CE Act and the rules and regulations, respectively, thereunder, as well as the rules and regulations of the NASD and the NFA, and will not ~~contain~~ include any 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; provided, however, that no this representation and warranty is shall not apply to any statements or omissions made in reliance upon and in conformity with ~~respect to~~ information furnished in writing to the Trust or the Managing Owner by the ~~Placement~~ Selling Agent, the Trustee, any commodity broker who has contracted to provide commodity brokerage services to the Trust (each, a "Commodity Broker") or their respective agents or by or on behalf of any Trading Advisor or any other commodity trading advisor (an "Other Advisor") engaged by the Managing Owner on behalf of the Trust for use therein, all without prejudice to any defense that the Selling Agent ~~or by any Additional Selling Agent (as defined in~~ may have based upon its "due diligence" investigation under the ~~Placement Agent Agreement).~~1933 Act; (c) To The certificate of trust (the ~~knowledge~~ "Certificate of Trust") pursuant to which the Trust has been formed and the Declaration of Trust and Trust Agreement of the ~~Managing Owner, no order~~ Trust (~~a “Stop Order”~~the "Trust Agreement") ~~(i) preventing or suspending~~ provide for the ~~effectiveness~~ subscription for and sale of the ~~Registration Statement or use~~ Units of the ~~Prospectus or any amendment or supplement thereto, (ii) refusing~~ Trust; all action required to ~~permit~~ be taken by the ~~effectiveness~~ Managing Owner and the Trust as a condition to the sale of the ~~Registration Statement~~Units to qualified subscribers therefor has been, or ~~(iii) suspending~~ prior to the ~~registration or qualification~~ Initial Closing Time for each Series will have been, taken; and, upon payment of ~~any Units, has been issued by~~ the ~~SEC~~consideration therefor specified in all accepted Subscription Agreements and Powers of Attorney, the ~~CFTC,~~ Units of each Series will constitute valid units of beneficial interest in such Series of the ~~NASD,~~ Trust as to which the ~~NFA,~~ subscribers thereto will have the ~~“blue sky” or securities authority~~ same limitation on personal liability as stockholders in a private corporation for profit organized under the laws of ~~any state, or any other federal, state or other governmental agency or body, nor has any~~ the State of Delaware and will be Unitholders of such ~~authorities instituted or, to the knowledge~~ Series of the ~~Managing Owner, threatened~~ Trust entitled to ~~institute, any proceedings with respect to a Stop Order~~all the applicable benefits under the Trust Agreement and the Delaware Act. (d) The Trust ~~was~~ is a statutory trust duly ~~formed~~ organized pursuant to the Delaware Act and is validly existing ~~as a statutory trust~~ and in good standing under the ~~Trust Act,~~ laws of the State of Delaware with full power and ~~authority~~authority to engage in the business to be conducted by it, as described in the Prospectus. The Trust is in good standing and ~~all~~ qualified to do business in each jurisdiction in which such qualification is necessary ~~authorizations, approvals~~ in order to protect the limited liability of Unitholders and ~~orders~~ in which the nature or conduct of its business as described in the Registration Statement requires such qualification and ~~from all federal, state and other governmental or regulatory officials and bodies,~~ the failure to ~~carry out~~ be so qualified would materially adversely affect its ability to perform its obligations under this ~~Agreement~~Agreement and the Advisory Agreement (as defined below). (e) The Managing Owner is, and will continue to be so long as it is the managing owner of the Trust, a corporation duly organized, validly existing and in good standing under the laws of the State of Connecticut and is in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its ~~certificate of~~ business as described in the Registration Statement and Prospectus requires such qualification and the failure to be so qualified would materially adversely affect the Trust's or the Managing Owner's ability to perform its obligations hereunder. (f) The Trust and the Managing Owner each have full trust (and corporate power and authority, as the ~~“Trust Certificate”) and~~ case may be, under applicable law to perform its respective obligations under the Trust Agreement, the escrow agreement described in the Prospectus relating to the offering of the Units (the "Escrow Agreement"), the Advisory Agreements by and among each Trading Advisor, the Trust and the Managing Owner (the "Advisory Agreements") (references in this Agreement to the Advisory Agreements intend, in respect of each Trading Advisor, to refer only to the Advisory Agreement to which such Trading Advisor is a party) and this Agreement, and to ~~own its properties and~~ conduct its business as described in the Registration Statement and Prospectus. (eg) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there will not have been any adverse change in the condition (financial or otherwise), business or prospects of the Managing Owner or the Trust, whether or not arising in the ordinary course of business. (h) Each of the Trust Agreement, the Escrow Agreement, the Advisory Agreements and this Agreement has been duly and validly authorized, executed and delivered by the Managing Owner on behalf of the Trust and by the Managing Owner, and each constitutes a valid, binding and enforce-able agreement of the Trust and the Managing Owner in accordance with its terms. (i) The execution and delivery of the Trust Agreement, the Escrow Agreement, the Advisory Agreements and this Agreement, the incurrence of the obligations set forth therein and herein and the consummation of the transactions contemplated herein, herein and in the Prospectus: (i) will not constitute a breach of, or default under, any instrument or agreement by which the Managing Owner or the Trust, as the case may be, or any of their property or assets is bound, or any statute, order, rule or regulation applicable to the Managing Owner or the Trust, as the case may be, of any court or any govern-mental body or administrative agency having jurisdiction over the Managing Owner or the Trust, as the case may be; (ii) will not result in the creation or imposition of any lien, charge or encumbrance on any property or assets of the Managing Owner or the Trust; (iii) will not give any party a right to terminate its obligations or result in the acceleration of any obligations under any material instrument or agreement by which the Managing Owner or the Trust, as the case may be, or any of their respective property or assets is bound; and (iv) will not result in any material liability (other than such as may be contemplated hereby and under the Agreements enumerated in this subparagraph) on the part of either the Managing Owner or the Trust. (j) Except as otherwise disclosed in the Registration Statement or the Prospectus, there is not pending nor, to the best of the Managing Owner's knowledge, threatened any action, suit or proceeding before or by any court or other governmental body to which the Managing Owner or the Trust is a party, or to which any of the assets of the Managing Owner or the Trust is subject, which might reasonably be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Managing Owner or the Trust or which is required to be disclosed in the Registration Statement or Prospectus pursuant to the Commodity Act, the 1933 Act, the CFTC Regulations or the SEC Regulations. The Managing Owner has not received any notice of an investigation or warning letter from the NFA or CFTC regarding non-compliance by the Managing Owner with the Commodity Act or the regulations thereunder. (k) All authorizations, consents or orders of any court, or of any Federal, state or other governmental or regulatory agency or body required for the authorization, issuance, offer and sale of the Units have been obtained. No stop order relating to the Registration Statement has been issued by any federal or state securities commission, and no proceedings therefor are pending or, to the best knowledge of the Managing Owner, threatened. (l) The Managing Owner and each of its principals and employees have, and will continue to have ~~for~~ so long as it is the ~~Managing Owner~~managing owner of the Trust, all federal and state governmental, regulatory, self-regulatory and commodity exchange approvals and licenses, and the Managing Owner (either by on behalf of itself or ~~through~~ its principals and employees) has effected all filings and registrations with federal and state governmental, regulatory or self-regulatory agencies required to conduct its business and to act as described in the Registration Statement and Prospectus or required to perform its or their obligations as described under the Trust Agreement (including, without limitation, registration as a commodity pool operator under the Commodity Act and membership in the NFA as a “commodity pool operator” and as a “commodity trading adviser”), except in each case as would not be reasonably likely to have a Material Adverse Effect on the Managing Owner, the Trust or any Fund. (f) The Managing Owner is a limited liability company duly formed, validly existing, and in good standing under the laws of Delaware, with full power and authority, and all necessary consents, authorizations, approvals, orders, licenses, certificates, and permits of and from, and declarations and filings with, all federal, state, local, and other governmental authorities and all courts and other tribunals, to own, lease, license, and use its properties and assets and to carry on its business, in all material respects, in the manner described in the Prospectus. The Managing Owner is duly qualified to do business and is in good standing in each jurisdiction in which its ownership, leasing, licensing, or use of property and assets or the conduct of its business makes such qualification necessary or advisable, except where the failure to be so qualified would not have a material adverse effect on any of the operations, business, properties or assets of the Managing Owner. (g) Each of the Managing Owner and the Trust has all requisite power and authority to execute, deliver, and perform its respective obligations under this Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Managing Owner and the Trust and constitutes a valid and binding agreement of each of the foregoing, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally. (h) The Managing Owner, the Trust and each Fund has the power and authority to enter into the contractual obligations and agreements referred to in the Prospectus (it being understood and agreed that this representation does not cover the Placement Agent Agreement, this Agreement or any other Additional Selling Agent Agreements). None of (x) the offer and sale of the Units, (y) the execution and delivery of this Agreement or (z) compliance by the Managing Owner or the Trust with the provisions of this Agreement, will conflict with, or result in a breach of any of the terms or provisions of, or result in a default under, (i) any order of the SEC, the NASD, the CFTC or the NFA; (ii) the Trust Certificate, the Trust Agreement or the limited liability company agreement of the Managing Owner; (iii) any indenture, mortgage, deed of trust, loan agreement, other evidence of indebtedness or other agreement or instrument to which the Trust, a Fund or the Managing Owner is a party or by which their properties or assets are bound, except in the case of this clause (iii) of an agreement or instrument that would not have a material adverse effect on any of the operations, business, properties or assets of any of the foregoing; or (iv) to their knowledge, any applicable statute or any order, rule or regulation of any court or of any federal, state or other governmental or regulatory agency or body having jurisdiction over the Trust, a Fund or the Managing Owner or any of their properties; nor will any such actions result in the imposition of any lien, charge or encumbrance upon any of the property or assets of the Trust, a Fund or the Managing Owner. (i) The offer and sale of Units have been duly authorized by all necessary action on the part of the Managing Owner and the Trust. The Units to be offered for sale pursuant to the Offering have been validly authorized and, when issued and delivered in accordance with this Agreement, will be validly issued, fully paid and nonassessable, and will constitute valid units of beneficial interest in the Trust which, when the Registration Statement becomes effective under the 1933 Act, will conform in all material respects to the description thereof contained in the Prospectus. The liability of each Limited Owner will be limited as set forth in the Prospectus and the Trust Agreement, and no Limited Owner will be subject to personal liability for the debts, obligations or liabilities of the Trust or the applicable Fund by reason of his being a Limited Owner other than as described in the Prospectus and the Trust Agreement. (j) No consent, approval, authorization, order, registration or qualification of or with any court or any federal, state or other governmental or regulatory agency or body is required for the issuance and sale of Units or the consummation of the transactions contemplated by this Agreement, except for the registration of Units under the 1933 Act, submission of the Prospectus to the SEC, NASD, NFA, the continued registration of the Managing Owner under the CE Act as a commodity pool operator and commodity trading advisor under the Commodity Act, (ii) membership in the NFA as a "commodity pool operator" and ~~membership by~~ "commodity trading advisor," and (iii) as a "transfer agent" with the Securities and Exchange Commission, and this Agreement and the performance of such obligations will not contravene or result in a breach of any provision of the Managing Owner's certificate of incorporation, by-laws or any agreement, instrument, order, law or regulation binding upon it or any of its employees or principals. The principals of the Managing Owner identified in the ~~NFA in such capacities, and such consents, approvals, authorizations, orders, registrations or qualifications as may be required by securities or state “blue sky” laws in connection with~~ Registration Statement are all of the ~~offer and sale of Units. (k) There is no litigation, arbitration, claim, governmental or other proceeding or investigation pending, or, to the knowledge~~ principals of the Managing Owner, ~~threatened~~as "principals" is defined by the CFTC regulations. Such principals are duly registered as such on the Managing Owner's commodity pool operator Form 7-R registration. (m) The Trust does not require any federal or state govern-mental, regulatory, self-regulatory or commodity exchange approvals or licenses, and the Trust need not effect any filings or registrations with any federal or state governmental agencies in order to conduct its business and to act as contemplated by the Registration Statement and Prospectus and to issue and sell the Units (other than filings under the 1933 Act, the Commodity Act and state securities laws relating solely to the offering of the Units). (n) The Managing Owner has the financial resources necessary to meet its obligations to the Selling Agent hereunder. (o) All of the information regarding the actual performance of the accounts of the Managing Owner and the Managing Owner's principals set forth in the Prospectus is complete and accurate in all material respects and, except as disclosed in the Prospectus, is in accordance and compliance with the disclosure requirements under the Commodity Act and the CFTC Regulations as well as of the NFA. (p) The Managing Owner acknowledges that the Selling Agent's customer and Correspondent lists constitute proprietary data belonging to the Selling Agent, and the Managing Owner agrees that it will not disseminate any confidential information regarding any of the foregoing, except as required by law. The Managing Owner agrees that (i) it will not, directly or indirectly, solicit a client introduced to the Managing Owner or the Trust by the Selling Agent or any of its Correspondents which client does not have a verifiable preexisting relationship with the Managing Owner (a "Protected Client") to establish a managed account with the Managing Owner or to invest in another fund managed by the Managing Owner unless such solicitation is conducted through the Selling Agent or as otherwise agreed to by the Selling Agent and (ii) if any Protected Client approaches the Managing Owner, the Managing Owner will not accept the account or investment without the Selling Agent's approval. In the event of a breach of the agreements of the Managing Owner in this Section 1(p), the Managing Owner agrees to compensate the Selling Agent with respect to that Protected Client in an amount equal to the amount of ongoing compensation to be paid by the Trust to the Selling Agent with respect to such a Protected Client. Such payments are deemed to be a reasonable estimate of the damage to the Selling Agent and shall be the Selling Agent's exclusive remedy for such breach. (q) The accountants who certified the Statement of Financial Position of the Managing Owner and the Statement of Financial Condition of the Trust included in the Registration Statement are, with respect to the Managing ~~Owner~~Owner and the Trust, independent public accountants as required by the ~~Trust or any Fund, or any of their operations, businesses, properties or assets, except as described in~~ 1933 Act and the ~~Registration Statement or Prospectus or such as would not, if successful, have a material adverse effect upon~~ SEC Regulations. These statements fairly present the ~~operations, businesses, properties or assets~~ financial position and financial condition of the Managing ~~Owner,~~ Owner and the ~~Trust or any Fund~~Trust, as the case may be~~. None~~ , as of the ~~Managing Owner, the Trust or any Fund is in violation in any material respect~~ date of any law, rule, regulation, order, judgment or decree, except as described in the Registration Statement or Prospectus or as would not have a material adverse effect upon the operations, business, properties or assets of the Managing Owner, the Trust or any Fund. (l) The Managing Owner is not, nor, to the knowledge of the Managing Owner, is any other party, in violation or breach of, or in default with respect to, any material provision of any written contract, agreement, instrument, lease, license or legally binding understanding (“Contract”) which is material to the Managing Owner and which relates to the Trust or the Offering; and each such Contract is in full force and is the legal, valid, and binding obligation of the Managing Owner and/or the Trust and is enforceable as to the Managing Owner and/or the Trust in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generallyStatements. The ~~Managing Owner has no knowledge that any party to any such Contract has any current intention~~ audited Statement of canceling, not renewing or not performing with respect thereto. The Managing Owner enjoys peaceful and undisturbed possession under all leased property from which operations related to the Trust or the Offering are conducted. The Managing Owner is not in violation or breach of, or in default with respect to, any term of its certificate of formation or operating agreement. (m) When the Registration Statement becomes effective under the 1933 Act, each Contract required to be (i) described in the Registration Statement or the Prospectus will be properly described therein and (ii) filed as an exhibit to the Registration Statement will be filed with the SEC as an exhibit to the Registration Statement. (n) The financial statements Financial Position of the Managing Owner and Statement of Financial Condition of the Trust ~~contained~~ are presented in ~~the Registration Statement~~ accordance, and the ~~Prospectus have been examined by an independent registered public accounting firm, as required by the CE Act and the 1933 Act and the rules and regulations~~ unaudited Statements of the CFTC and the SEC, respectively, and when the Registration Statement becomes effective under the 1933 Act, fairly present in all material respects the financial condition and the results of operations thereof as of the dates and for the periods therein specified; and such financial statements have been prepared in accordance with generally accepted accounting principles in the United States consistently applied throughout the periods involved; and no other financial statements are required by Form S-1 to be included in the Registration Statement or the Prospectus. (o) Neither the Managing Owner, nor, to the knowledge of the Managing Owner, any manager, member, director, officer, agent, employee, or other person associated with or acting on behalf Financial Position of the Managing Owner ~~has~~substantially in accordance, ~~directly or indirectly,~~ with Generally Accepted Accounting Principles (i) used any corporate funds for unlawful contributions, gifts, entertainment, or other unlawful expenses relating to political activity; (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from funds of the Managing Owner; (iii) violated any provision of the Foreign Corrupt Practices Act of 1977, as ~~amended or (iv) made any bribe, rebate, payoff, influence payment, kickback, or other unlawful payment. (p) Subsequent to the respective dates as of which information is given~~ currently in effect in the Registration Statement and the Prospectus, and except as described in the Registration Statement or Prospectus, the Trust has not (i) issued any securities or incurred any liability or obligation, primary or contingent, for borrowed money; (ii) entered into any material transaction not in the ordinary course of business or (iii) declared or paid any dividend on its capital stock. (q) Except as may be set forth in the Registration Statement, Prospectus, this Agreement or any Additional Selling Agent Agreement, neither the Trust nor any Fund has incurred any liability for a fee, commission or other compensation on account of the employment of a broker or finder in connection with the transactions contemplated by this AgreementUnited States). (r) ~~Except~~ The Trust will not be required to register as ~~contemplated by~~ an investment company under the ~~Offering, the Placement Agent Agreement, this Agreement or any Additional Selling Agent Agreement or~~ Investment Company Act of 1940 in order to conduct its operations as may have been waived, no Person has any right of first refusal, preemptive right, right to any compensation, or other similar right or option, in connection with the Offering or this Agreement, or any of the transactions contemplated hereby or thereby. (s) Except as may be set forth described in the Registration Statement or Prospectus or as may have been waived, no Person has the right to require registration of Units or other securities of the Company upon the filing or effectiveness of the Registration StatementProspectus.

Appears in 1 contract

Samples: Selling Agreement (World Monitor Trust III)

Representations and Warranties of the Managing Owner. The Managing Owner represents and warrants to the Selling Agent ~~that~~and the Trading Advisors as follows: (a) A registration statement on Form S-1 for the Trust and ~~the Funds, and~~ as a part thereof a combined prospectus for all ~~Funds~~ Series with respect to all of the Units being offered (which registration ~~statement~~ statement, together with all amendments thereto, at the ~~time~~ times and in the ~~form~~ forms declared effective by the ~~SEC is~~ Securities and Exchange Commission (the “SEC”) shall be referred to herein as the “Registration Statement,” ”, and which prospectus in final form, together with all amendments and supplements thereto, is shall be referred to herein as the “Prospectus”), prepared in ~~accordance~~ full conformity with the applicable requirements of the Securities Act of 1933, as amended (the “1933 Act”), the CE Act, and the rules, regulations and instructions promulgated under the 1933 Act and the CE Act, respectively, ~~has~~ have been filed with the SEC, the National Association of Securities Dealers, Inc. (the “NASD”) and the NFA pursuant to the 1933 ~~Act and~~ Act, the CE Act and the rules and regulations promulgated, respectively, thereunder, as well as the rules and regulations of the NASD and the NFA, in the form heretofore delivered to the ~~Placement~~ Selling Agent.; (b) ~~When~~ To the best of the Managing Owner’s knowledge, no order preventing or suspending the effectiveness of the Registration Statement or use of the Prospectus or any previous prospectus with respect to the Units has been issued by the SEC, the CFTC, the NASD, the NFA or any other federal, state or other governmental agency or body. The Registration Statement contains all statements which are required to be made therein, conforms in all material respects to the requirements of the 1933 Act and the CE Act and the rules and regulations of the SEC and the CFTC, respectively, thereunder, and does 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; and, when the Registration Statement becomes effective under the 1933 ~~Act~~Act and at all times subsequent thereto up to and including the Initial Closing Time for each Series, and thereafter up to and including each subsequent closing date during the Continuous Offering Period, as such terms are hereinafter defined, the Registration Statement and the Prospectus will contain all material statements and information required to be included therein by the 1933 Act and the CE Act and the rules and regulations, respectively, thereunder, as well as the rules and regulations of the NASD and the NFA, and will conform in all material respects to the requirements of the 1933 ~~Act and~~ Act, the CE Act and the rules and regulations, respectively, thereunder, as well as the rules and regulations of the NASD and the NFA, and will not ~~contain~~ include any 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; provided, however, that no this representation and warranty is shall not apply to any statements or omissions made in reliance upon and in conformity with ~~respect to~~ information furnished in writing to the Trust or the Managing Owner by the ~~Placement~~ Selling Agent, the Trustee, any commodity broker who has contracted to provide commodity brokerage services to the Trust (each, a “Commodity Broker”) or their respective agents or by or on behalf of any Trading Advisor or any other commodity trading advisor (an “Other Advisor”) engaged by the Managing Owner on behalf of the Trust for use therein, all without prejudice to any defense that the Selling Agent ~~or by any Additional Selling Agent (as defined in~~ may have based upon its “due diligence” investigation under the ~~Placement Agent Agreement).~~1933 Act; (c) To The certificate of trust (the ~~knowledge~~ “Certificate of Trust”) pursuant to which the Trust has been formed and the Amended and Restated Declaration of Trust and Trust Agreement of the ~~Managing Owner~~Trust, ~~no order~~ as amended from time to time (a the “~~Stop Order~~Trust Agreement”~~) (i) preventing or suspending~~ ), provide for the ~~effectiveness~~ subscription for and sale of the ~~Registration Statement or use~~ Units of the ~~Prospectus or any amendment or supplement thereto, (ii) refusing~~ Trust; all action required to ~~permit~~ be taken by the ~~effectiveness~~ Managing Owner and the Trust as a condition to the sale of the ~~Registration Statement~~Units to qualified subscribers therefor has been, or ~~(iii) suspending~~ prior to the ~~registration or qualification~~ Initial Closing Time for each Series will have been, taken; and, upon payment of ~~any Units, has been issued by~~ the ~~SEC~~consideration therefor specified in all accepted Subscription Agreements and Powers of Attorney, the ~~CFTC,~~ Units of each Series will constitute valid units of beneficial interest in such Series of the ~~NASD,~~ Trust as to which the ~~NFA,~~ subscribers thereto will have the ~~“blue sky” or securities authority~~ same limitation on personal liability as stockholders in a private corporation for profit organized under the laws of ~~any state, or any other federal, state or other governmental agency or body, nor has any~~ the State of Delaware and will be Unitholders of such ~~authorities instituted or, to the knowledge~~ Series of the ~~Managing Owner, threatened~~ Trust entitled to ~~institute, any proceedings with respect to a Stop Order~~all the applicable benefits under the Trust Agreement and the Delaware Act. (d) The Trust ~~was~~ is a statutory trust duly ~~formed~~ organized pursuant to the Delaware Act and is validly existing ~~as a statutory trust~~ and in good standing under the ~~Trust Act,~~ laws of the State of Delaware with full power and ~~authority~~authority to engage in the business to be conducted by it, as described in the Prospectus. The Trust is in good standing and ~~all~~ qualified to do business in each jurisdiction in which such qualification is necessary ~~authorizations, approvals~~ in order to protect the limited liability of Unitholders and ~~orders~~ in which the nature or conduct of its business as described in the Registration Statement requires such qualification and ~~from all federal, state and other governmental or regulatory officials and bodies,~~ the failure to ~~carry out~~ be so qualified would materially adversely affect its ability to perform its obligations under this ~~Agreement~~Agreement and the Advisory Agreement (as defined below). (e) The Managing Owner is, and will continue to be so long as it is the managing owner of the Trust, a corporation duly organized, validly existing and in good standing under the laws of the State of Connecticut and is in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its ~~certificate of~~ business as described in the Registration Statement and Prospectus requires such qualification and the failure to be so qualified would materially adversely affect the Trust’s or the Managing Owner’s ability to perform its obligations hereunder. (f) The Trust and the Managing Owner each have full trust (and corporate power and authority, as the ~~“Trust Certificate”) and~~ case may be, under applicable law to perform its respective obligations under the Trust Agreement, the escrow agreement described in the Prospectus relating to the offering of the Units and as amended from time-to-time (the “Escrow Agreement”), the Advisory Agreements by and among each Trading Advisor, the trading vehicles described in the Prospectus and the Managing Owner (the “Advisory Agreements”) (references in this Agreement to the Advisory Agreements intend, in respect of each Trading Advisor, to refer only to the Advisory Agreement to which such Trading Advisor is a party) and this Agreement, and to ~~own its properties and~~ conduct its business as described in the Registration Statement and Prospectus. (eg) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there will not have been any adverse change in the condition (financial or otherwise), business or prospects of the Managing Owner or the Trust, whether or not arising in the ordinary course of business. (h) Each of the Trust Agreement, the Escrow Agreement, the Advisory Agreements and this Agreement has been duly and validly authorized, executed and delivered by the Managing Owner on behalf of the Trust or a Series (including in its capacity as a member of a trading vehicle described in the Prospectus) and by the Managing Owner, and each constitutes a valid, binding and enforceable agreement of the Trust or such Series and the Managing Owner in accordance with its terms. (i) The execution and delivery of the Trust Agreement, the Escrow Agreement, the Advisory Agreements and this Agreement, the incurrence of the obligations set forth therein and herein and the consummation of the transactions contemplated herein, herein and in the Prospectus: (i) will not constitute a breach of, or default under, any instrument or agreement by which the Managing Owner, the Trust or any Series, as the case may be, or any of their property or assets is bound, or any statute, order, rule or regulation applicable to the Managing Owner, the Trust or any Series, as the case may be, of any court or any governmental body or administrative agency having jurisdiction over the Managing Owner, the Trust or any Series, as the case may be; (ii) will not result in the creation or imposition of any lien, charge or encumbrance on any property or assets of the Managing Owner, the Trust or any Series; (iii) will not give any party a right to terminate its obligations or result in the acceleration of any obligations under any material instrument or agreement by which the Managing Owner, the Trust or any Series, as the case may be, or any of their respective property or assets is bound; and (iv) will not result in any material liability (other than such as may be contemplated hereby and under the Agreements enumerated in this subparagraph) on the part of either the Managing Owner, the Trust or any Series. (j) Except as otherwise disclosed in the Registration Statement or the Prospectus, there is not pending nor, to the best of the Managing Owner’s knowledge, threatened any action, suit or proceeding before or by any court or other governmental body to which the Managing Owner or the Trust is a party, or to which any of the assets of the Managing Owner or the Trust is subject, which might reasonably be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Managing Owner or the Trust or which is required to be disclosed in the Registration Statement or Prospectus pursuant to the CE Act, the 1933 Act, the CFTC Regulations or the SEC Regulations. The Managing Owner has not received any notice of an investigation or warning letter from the NFA or CFTC regarding non-compliance by the Managing Owner with the CE Act or the regulations thereunder. (k) All authorizations, consents or orders of any court, or of any federal, state or other governmental or regulatory agency or body required for the authorization, issuance, offer and sale of the Units have been obtained. No stop order relating to the Registration Statement has been issued by any federal or state securities commission, and no proceedings therefor are pending or, to the best knowledge of the Managing Owner, threatened. (l) The Managing Owner and each of its principals and employees have, and will continue to have ~~for~~ so long as it is the ~~Managing Owner~~managing owner of the Trust, all federal and state governmental, regulatory, self-regulatory and commodity exchange approvals and licenses, and the Managing Owner (either by on behalf of itself or ~~through~~ its principals and employees) has effected all filings and registrations with federal and state governmental, regulatory or self-regulatory agencies required to conduct its business and to act as described in the Registration Statement and Prospectus or required to perform its or their obligations as described under the Trust Agreement (including, without limitation, registration (i) as a commodity pool operator and commodity trading advisor under the ~~Commodity Act and~~ CE Act, (ii) membership in the NFA as a “commodity pool operator” and “commodity trading advisor,” and (iii) as a “~~commodity trading adviser”), except in each case as would not be reasonably likely to have a Material Adverse Effect on~~ transfer agent” with the ~~Managing Owner, the Trust or any Fund. (f) The Managing Owner is a limited liability company duly formed, validly existing~~Securities and Exchange Commission, and in good standing under the laws of Delaware, with full power and authority, and all necessary consents, authorizations, approvals, orders, licenses, certificates, and permits of and from, and declarations and filings with, all federal, state, local, and other governmental authorities and all courts and other tribunals, to own, lease, license, and use its properties and assets and to carry on its business, in all material respects, in the manner described in the Prospectus. The Managing Owner is duly qualified to do business and is in good standing in each jurisdiction in which its ownership, leasing, licensing, or use of property and assets or the conduct of its business makes such qualification necessary or advisable, except where the failure to be so qualified would not have a material adverse effect on any of the operations, business, properties or assets of the Managing Owner. (g) Each of the Managing Owner this Agreement and the ~~Trust has all requisite power and authority to execute, deliver, and perform its respective~~ performance of such obligations under this Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Managing Owner and the Trust and constitutes a valid and binding agreement of each of the foregoing, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally. (h) The Managing Owner, the Trust and each Fund has the power and authority to enter into the contractual obligations and agreements referred to in the Prospectus (it being understood and agreed that this representation does will not cover the Placement Agent Agreement, this Agreement or any other Additional Selling Agent Agreements). None of (x) the offer and sale of the Units, (y) the execution and delivery of this Agreement or (z) compliance by the Managing Owner or the Trust with the provisions of this Agreement, will conflict with, contravene or result in a breach of any of the terms or provisions of, or result in a default under, (i) any order of the SEC, the NASD, the CFTC or the NFA; (ii) the Trust Certificate, the Trust Agreement or the limited liability company agreement provision of the Managing Owner~~; (iii)~~ ’s certificate of incorporation, by-laws or any ~~indenture, mortgage, deed of trust, loan~~ agreement, ~~other evidence~~ instrument, order, law or regulation binding upon it or any of ~~indebtedness~~ its employees or ~~other agreement or instrument to which the Trust, a Fund or~~ principals. The principals of the Managing Owner identified in the Registration Statement are all of the principals of the Managing Owner, as “principals” is ~~a party~~ defined by the CFTC regulations. Such principals are duly registered as such on the Managing Owner’s commodity pool operator Form 7-R registration. (m) The Trust does not require any federal or state governmental, regulatory, self-regulatory or commodity exchange approvals or licenses, and the Trust need not effect any filings or registrations with any federal or state governmental agencies in order to conduct its business and to act as contemplated by ~~which their properties or assets are bound~~the Registration Statement and Prospectus and to issue and sell the Units (other than filings under the 1933 Act, the CE Act and state securities laws relating solely to the offering of the Units). (n) The Managing Owner has the financial resources necessary to meet its obligations to the Selling Agent hereunder. (o) All of the information regarding the actual performance of the accounts of the Managing Owner and the Managing Owner’s principals set forth in the Prospectus is complete and accurate in all material respects and, except as disclosed in the ~~case of this clause (iii) of an agreement or instrument that would not have a material adverse effect on any~~ Prospectus, is in accordance and compliance with the disclosure requirements under the CE Act and the CFTC Regulations as well as of the ~~operations~~NFA. (p) The Managing Owner acknowledges that the Selling Agent’s customer and Correspondent lists constitute proprietary data belonging to the Selling Agent, ~~business, properties or assets of~~ and the Managing Owner agrees that it will not disseminate any confidential information regarding any of the foregoing; , except as required by law. The Managing Owner agrees that (i) it will not, directly or ~~(iv)~~ indirectly, solicit a client introduced to their knowledge, any applicable statute or any order, rule or regulation of any court or of any federal, state or other governmental or regulatory agency or body having jurisdiction over the Trust, a Fund or the Managing Owner or the Trust by the Selling Agent or any of ~~their properties; nor~~ its Correspondents which client does not have a verifiable preexisting relationship with the Managing Owner (a “Protected Client”) to establish a managed account with the Managing Owner or to invest in another fund managed by the Managing Owner unless such solicitation is conducted through the Selling Agent or as otherwise agreed to by the Selling Agent and (ii) if any Protected Client approaches the Managing Owner, the Managing Owner will ~~any~~ not accept the account or investment without the Selling Agent’s approval. In the event of a breach of the agreements of the Managing Owner in this Section 1(p), the Managing Owner agrees to compensate the Selling Agent with respect to that Protected Client in an amount equal to the amount of ongoing compensation to be paid by the Trust to the Selling Agent with respect to such ~~actions result~~ a Protected Client. Such payments are deemed to be a reasonable estimate of the damage to the Selling Agent and shall be the Selling Agent’s exclusive remedy for such breach. (q) The accountants who certified the Statement of Financial Position of the Managing Owner and the Statement of Financial Condition of the Trust included in the ~~imposition of any lien~~Registration Statement are, ~~charge or encumbrance upon any of~~ with respect to the ~~property or assets of~~ Managing Owner and the Trust, ~~a Fund or~~ independent public accountants as required by the ~~Managing Owner. (i) The offer~~ 1933 Act and ~~sale of Units have been duly authorized by all necessary action on~~ the ~~part~~ SEC Regulations. These statements fairly present the financial position and financial condition of the Managing Owner and the Trust. The Units to be offered for sale pursuant to the Offering have been validly authorized and, when issued and delivered in accordance with this Agreement, will be validly issued, fully paid and nonassessable, and will constitute valid units of beneficial interest in the Trust which, when the Registration Statement becomes effective under the 1933 Act, will conform in all material respects to the description thereof contained in the Prospectus. The liability of each Limited Owner will be limited as set forth in the Prospectus and the Trust Agreement, and no Limited Owner will be subject to personal liability for the debts, obligations or liabilities of the Trust or the applicable Fund by reason of his being a Limited Owner other than as described in the Prospectus and the Trust Agreement. (j) No consent, approval, authorization, order, registration or qualification of or with any court or any federal, state or other governmental or regulatory agency or body is required for the issuance and sale of Units or the consummation of the transactions contemplated by this Agreement, except for the registration of Units under the 1933 Act, submission of the Prospectus to the SEC, NASD, NFA, the continued registration of the Managing Owner under the CE Act as a commodity pool operator and commodity trading advisor and membership by the Managing Owner in the NFA in such capacities, and such consents, approvals, authorizations, orders, registrations or qualifications as may be required by securities or state “blue sky” laws in connection with the offer and sale of Units. (k) There is no litigation, arbitration, claim, governmental or other proceeding or investigation pending, or, to the knowledge of the Managing Owner, threatened, with respect to the Managing Owner, the Trust or any Fund, or any of their operations, businesses, properties or assets, except as described in the Registration Statement or Prospectus or such as would not, if successful, have a material adverse effect upon the operations, businesses, properties or assets of the Managing Owner, the Trust or any Fund, as the case may be~~. None~~ , as of the ~~Managing Owner, the Trust or any Fund is in violation in any material respect~~ date of any law, rule, regulation, order, judgment or decree, except as described in the Registration Statement or Prospectus or as would not have a material adverse effect upon the operations, business, properties or assets of the Managing Owner, the Trust or any Fund. (l) The Managing Owner is not, nor, to the knowledge of the Managing Owner, is any other party, in violation or breach of, or in default with respect to, any material provision of any written contract, agreement, instrument, lease, license or legally binding understanding (“Contract”) which is material to the Managing Owner and which relates to the Trust or the Offering; and each such Contract is in full force and is the legal, valid, and binding obligation of the Managing Owner and/or the Trust and is enforceable as to the Managing Owner and/or the Trust in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generallyStatements. The ~~Managing Owner has no knowledge that any party to any such Contract has any current intention~~ audited Statement of canceling, not renewing or not performing with respect thereto. The Managing Owner enjoys peaceful and undisturbed possession under all leased property from which operations related to the Trust or the Offering are conducted. The Managing Owner is not in violation or breach of, or in default with respect to, any term of its certificate of formation or operating agreement. (m) When the Registration Statement becomes effective under the 1933 Act, each Contract required to be (i) described in the Registration Statement or the Prospectus will be properly described therein and (ii) filed as an exhibit to the Registration Statement will be filed with the SEC as an exhibit to the Registration Statement. (n) The financial statements Financial Position of the Managing Owner and Statement of Financial Condition of the Trust ~~contained~~ are presented in ~~the Registration Statement~~ accordance, and the ~~Prospectus have been examined by an independent registered public accounting firm, as required by the CE Act and the 1933 Act and the rules and regulations~~ unaudited Statements of the CFTC and the SEC, respectively, and when the Registration Statement becomes effective under the 1933 Act, fairly present in all material respects the financial condition and the results of operations thereof as of the dates and for the periods therein specified; and such financial statements have been prepared in accordance with generally accepted accounting principles in the United States consistently applied throughout the periods involved; and no other financial statements are required by Form S-1 to be included in the Registration Statement or the Prospectus. (o) Neither the Managing Owner, nor, to the knowledge of the Managing Owner, any manager, member, director, officer, agent, employee, or other person associated with or acting on behalf Financial Position of the Managing Owner ~~has~~substantially in accordance, ~~directly or indirectly,~~ with Generally Accepted Accounting Principles (i) used any corporate funds for unlawful contributions, gifts, entertainment, or other unlawful expenses relating to political activity; (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from funds of the Managing Owner; (iii) violated any provision of the Foreign Corrupt Practices Act of 1977, as ~~amended or (iv) made any bribe, rebate, payoff, influence payment, kickback, or other unlawful payment. (p) Subsequent to the respective dates as of which information is given~~ currently in effect in the Registration Statement and the Prospectus, and except as described in the Registration Statement or Prospectus, the Trust has not (i) issued any securities or incurred any liability or obligation, primary or contingent, for borrowed money; (ii) entered into any material transaction not in the ordinary course of business or (iii) declared or paid any dividend on its capital stock. (q) Except as may be set forth in the Registration Statement, Prospectus, this Agreement or any Additional Selling Agent Agreement, neither the Trust nor any Fund has incurred any liability for a fee, commission or other compensation on account of the employment of a broker or finder in connection with the transactions contemplated by this AgreementUnited States). (r) ~~Except~~ The Trust will not be required to register as ~~contemplated by~~ an investment company under the ~~Offering, the Placement Agent Agreement, this Agreement or any Additional Selling Agent Agreement or~~ Investment Company Act of 1940 in order to conduct its operations as may have been waived, no Person has any right of first refusal, preemptive right, right to any compensation, or other similar right or option, in connection with the Offering or this Agreement, or any of the transactions contemplated hereby or thereby. (s) Except as may be set forth described in the Registration Statement or Prospectus or as may have been waived, no Person has the right to require registration of Units or other securities of the Company upon the filing or effectiveness of the Registration StatementProspectus.

Appears in 1 contract

Samples: Selling Agreement (WMT III Series G/J Trading Vehicle LLC)

Representations and Warranties of the Managing Owner. The Managing Owner represents and warrants to the Correspondent Selling Agent ~~that:~~as follows -- such representations and warranties to be restated and reaffirmed as of each Closing Time (as defined in Section 2 hereof): (a) A registration statement on Form S-1 for the Trust and ~~the Funds, and~~ as a part thereof a combined prospectus for all ~~Funds~~ Series with respect to all of the Units being offered (which registration ~~statement~~ statement, together with all amendments thereto, at the ~~time~~ times and in the ~~form~~ forms declared effective by the ~~SEC is~~ Securities and Exchange Commission (the "SEC") shall be referred to herein as the “"Registration Statement,” ", and which prospectus in final form, together with all amendments and supplements thereto, is shall be referred to herein as the “"Prospectus”"), prepared in ~~accordance~~ full conformity with the applicable requirements of the Securities Act of 1933, as amended (the “"1933 Act”"), the CE Act, and the rules, regulations and instructions promulgated under the 1933 Act and the CE Act, respectively, ~~has~~ have been filed with the SEC, the National Association of Securities Dealers, Inc. (the “"NASD”") and the NFA pursuant to the 1933 ~~Act and~~ Act, the CE Act and the rules and regulations promulgated, respectively, thereunder, as well as the rules and regulations of the NASD and the NFA, in the form heretofore delivered to the ~~Placement~~ Selling Agent.; (b) ~~When~~ To the best of the Managing Owner's knowledge, no order preventing or suspending the effectiveness of the Registration Statement or use of the Prospectus or any previous prospectus with respect to the Units has been issued by the SEC, the CFTC, the NASD, the NFA or any other federal, state or other governmental agency or body. The Registration Statement contains all statements which are required to be made therein, conforms in all material respects to the requirements of the 1933 Act and the CE Act and the rules and regulations of the SEC and the CFTC, respectively, thereunder, and does 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; and, when the Registration Statement becomes effective under the 1933 ~~Act~~Act and at all times subsequent thereto up to and including the Initial Closing Time for each Series, and thereafter up to and including each subsequent closing date during the Continuous Offering Period, as such terms are hereinafter defined, the Registration Statement and the Prospectus will contain all material statements and information required to be included therein by the 1933 Act and the CE Act and the rules and regulations, respectively, thereunder, as well as the rules and regulations of the NASD and the NFA, and will Correspondent Selling Agent Agreement conform in all material respects to the requirements of the 1933 ~~Act and~~ Act, the CE Act and the rules and regulations, respectively, thereunder, as well as the rules and regulations of the NASD and the NFA, and will not ~~contain~~ include any 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; provided, however, that no this representation and warranty is shall not apply to any statements or omissions made in reliance upon and in conformity with ~~respect to~~ information furnished in writing to the Trust or the Managing Owner by the ~~Placement~~ Selling Agent, the Trustee, any Commodity Broker or their respective agents or by or on behalf of any Trading Advisor or any other commodity trading advisor (an "Other Advisor") engaged by the Managing Owner on behalf of the Trust for use therein, all without prejudice to any defense that the Selling Agent may have based upon its "due diligence" investigation under the 1933 Act; (c) The certificate of trust (the "Certificate of Trust") pursuant to which the Trust has been formed and the Amended and Restated Declaration of Trust and Trust Agreement of the Trust (the "Trust Agreement") provide for the subscription for and sale of the Units of the Trust; all action required to be taken by the Managing Owner and the Trust as a condition to the sale of the Units to qualified subscribers therefor has been, or ~~by any Additional Selling Agent~~ prior to the Initial Closing Time (as defined in ~~the Placement Agent Agreement). (c~~Section 2 hereof) ~~To the knowledge~~ will have been, taken; and, upon payment of the ~~Managing Owner~~consideration therefor specified in all accepted Subscription Agreements and Powers of Attorney, ~~no order (~~the Units will constitute valid units of beneficial interest in the Trust as to which the subscribers thereto will have the same limitation on personal liability as stockholders in a ~~“Stop Order”) (i) preventing or suspending~~ private corporation for profit organized under the ~~effectiveness~~ laws of the ~~Registration Statement or use~~ State of Delaware, and the subscribers will be Unitholders of the ~~Prospectus or any amendment or supplement thereto, (ii) refusing~~ Trust entitled to ~~permit~~ all the ~~effectiveness of~~ applicable benefits under the ~~Registration Statement, or (iii) suspending~~ Trust Agreement and the registration or qualification of any Units, has been issued by the SEC, the CFTC, the NASD, the NFA, the “blue sky” or securities authority of any state, or any other federal, state or other governmental agency or body, nor has any of such authorities instituted or, to the knowledge of the Managing Owner, threatened to institute, any proceedings with respect to a Stop OrderDelaware Act. (d) The Trust ~~was~~ is a statutory trust duly ~~formed~~ organized pursuant to the Delaware Act and is validly existing ~~as a statutory trust~~ and in good standing under the ~~Trust Act,~~ laws of the State of Delaware with full power and authority to engage in the business to be conducted by it, as described in the Prospectus. The Trust is in good standing and qualified to do business in each jurisdiction in which such qualification is necessary in order to protect the limited liability of Unitholders and in which the nature or conduct of its business as described in the Registration Statement requires such qualification and the failure to be so qualified would materially adversely affect the Trust. (e) The Managing Owner is, and will continue to be so long as it is the managing owner of the Trust, a corporation duly organized, validly existing and in good standing under the laws of the State of Connecticut and is in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its business as described in the Registration Statement and Prospectus requires such qualification and the failure to be so qualified would materially adversely affect the Trust's or the Managing Owner's ability to perform its obligations hereunder. (f) The Trust and the Managing Owner each have full trust and corporate power and authority, ~~and all necessary authorizations~~as the case may be, ~~approvals and orders of and from all federal, state and other governmental or regulatory officials and bodies,~~ under applicable law to ~~carry out~~ perform its respective obligations under ~~this~~ the Selling Agreement, ~~its certificate of trust (the “Trust Certificate”) and~~ the Trust Agreement, the escrow agreement Correspondent Selling Agent Agreement described in the Prospectus relating to the offering of the Units (the "Escrow Agreement"), the Advisory Agreements by and among each Trading Advisor, the trading vehicles described in the Prospectus and the Managing Owner (the "Advisory Agreements") and this Agreement, and to ~~own its properties and~~ conduct its business as described in the Registration Statement and Prospectus. (eg) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there will not have been any adverse change in the condition (financial or otherwise), business or prospects of the Managing Owner or the Trust, whether or not arising in the ordinary course of business, of which the Selling Agent shall not be informed by the Managing Owner. (h) Each of the Trust Agreement, the Escrow Agreement, the Selling Agreement, the Customer Agreements, the Advisory Agreements and this Agreement has been duly and validly authorized, executed and delivered by the Managing Owner on behalf of the Trust or a Series (including in its capacity as a member of a trading vehicle described in the Prospectus) and by the Managing Owner, and each constitutes a valid, binding and enforceable agreement of the Trust or such Series and the Managing Owner in accordance with its terms. (i) The execution and delivery of the Trust Agreement, the Escrow Agreement, the Selling Agreement, the Advisory Agreements and this Agreement, the incurrence of the obligations set forth therein and herein and the consummation of the transactions contemplated therein, herein and in the Prospectus: (i) will not constitute a breach of, or default under, any instrument or agreement by which the Managing Owner, the Trust or any Series, as the case may be, or any of their property or assets is bound, or any statute, order, rule or regulation applicable to the Managing Owner, the Trust or any Series, as the case may be, of any court or any governmental body or administrative agency having jurisdiction over the Managing Owner, the Trust or any Series, as the case may be; (ii) will not result in the creation or imposition of any lien, charge or encumbrance on any property or assets of the Managing Owner, the Trust or any Series; (iii) will not give any party a right to terminate its obligations or result in the acceleration of any obligations under any material instrument or agreement by which the Managing Owner, the Trust or any Series, as the case may be, or any of their respective property or assets is bound; and (iv) will not result in any material liability (other than such as may be contemplated hereby) on the part of either the Managing Owner, the Trust or any Series. (j) Except as otherwise disclosed in the Registration Statement or the Prospectus, there is not pending nor, to the best of the Managing Owner's knowledge, threatened any action, suit or proceeding before or by any court or other governmental body to which the Managing Owner or the Trust is a party, or to which any of the assets of the Managing Owner or the Trust is subject, which might reasonably be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Managing Owner or the Trust or which is required to be disclosed in the Registration Statement or Prospectus pursuant to the CE Act, the 1933 Act, the SEC Regulations or the CFTC Regulations. Correspondent Selling Agent Agreement (k) No stop order relating to the Registration Statement has been issued by any federal or state securities commission, and no proceedings therefor are pending or, to the best knowledge of the Managing Owner, threatened. (l) The Managing Owner and each of its principals and employees have, and will continue to have ~~for~~ so long as it is the ~~Managing Owner~~managing owner of the Trust, all federal and state governmental, regulatory, self-regulatory and commodity exchange approvals and licenses, and the Managing Owner (either by on behalf of itself or ~~through~~ its principals and employees) has effected all filings and registrations with federal and state governmental, regulatory or self-regulatory agencies required to conduct its business and to act as described in the Registration Statement and Prospectus or required to perform its or their obligations as described under the Trust Agreement (including, without limitation, registration as a commodity pool operator under the Commodity Act and membership in the NFA as a “commodity pool operator” and as a “commodity trading adviser”), except in each case as would not be reasonably likely to have a Material Adverse Effect on the Managing Owner, the Trust or any Fund. (f) The Managing Owner is a limited liability company duly formed, validly existing, and in good standing under the laws of Delaware, with full power and authority, and all necessary consents, authorizations, approvals, orders, licenses, certificates, and permits of and from, and declarations and filings with, all federal, state, local, and other governmental authorities and all courts and other tribunals, to own, lease, license, and use its properties and assets and to carry on its business, in all material respects, in the manner described in the Prospectus. The Managing Owner is duly qualified to do business and is in good standing in each jurisdiction in which its ownership, leasing, licensing, or use of property and assets or the conduct of its business makes such qualification necessary or advisable, except where the failure to be so qualified would not have a material adverse effect on any of the operations, business, properties or assets of the Managing Owner. (g) Each of the Managing Owner and the Trust has all requisite power and authority to execute, deliver, and perform its respective obligations under this Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Managing Owner and the Trust and constitutes a valid and binding agreement of each of the foregoing, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally. (h) The Managing Owner, the Trust and each Fund has the power and authority to enter into the contractual obligations and agreements referred to in the Prospectus (it being understood and agreed that this representation does not cover the Placement Agent Agreement, this Agreement or any other Additional Selling Agent Agreements). None of (x) the offer and sale of the Units, (y) the execution and delivery of this Agreement or (z) compliance by the Managing Owner or the Trust with the provisions of this Agreement, will conflict with, or result in a breach of any of the terms or provisions of, or result in a default under, (i) any order of the SEC, the NASD, the CFTC or the NFA; (ii) the Trust Certificate, the Trust Agreement or the limited liability company agreement of the Managing Owner; (iii) any indenture, mortgage, deed of trust, loan agreement, other evidence of indebtedness or other agreement or instrument to which the Trust, a Fund or the Managing Owner is a party or by which their properties or assets are bound, except in the case of this clause (iii) of an agreement or instrument that would not have a material adverse effect on any of the operations, business, properties or assets of any of the foregoing; or (iv) to their knowledge, any applicable statute or any order, rule or regulation of any court or of any federal, state or other governmental or regulatory agency or body having jurisdiction over the Trust, a Fund or the Managing Owner or any of their properties; nor will any such actions result in the imposition of any lien, charge or encumbrance upon any of the property or assets of the Trust, a Fund or the Managing Owner. (i) The offer and sale of Units have been duly authorized by all necessary action on the part of the Managing Owner and the Trust. The Units to be offered for sale pursuant to the Offering have been validly authorized and, when issued and delivered in accordance with this Agreement, will be validly issued, fully paid and nonassessable, and will constitute valid units of beneficial interest in the Trust which, when the Registration Statement becomes effective under the 1933 Act, will conform in all material respects to the description thereof contained in the Prospectus. The liability of each Limited Owner will be limited as set forth in the Prospectus and the Trust Agreement, and no Limited Owner will be subject to personal liability for the debts, obligations or liabilities of the Trust or the applicable Fund by reason of his being a Limited Owner other than as described in the Prospectus and the Trust Agreement. (j) No consent, approval, authorization, order, registration or qualification of or with any court or any federal, state or other governmental or regulatory agency or body is required for the issuance and sale of Units or the consummation of the transactions contemplated by this Agreement, except for the registration of Units under the 1933 Act, submission of the Prospectus to the SEC, NASD, NFA, the continued registration of the Managing Owner under the CE Act as a commodity pool operator and commodity trading advisor ~~and~~ under the CE Act, (ii) membership ~~by the Managing Owner~~ in the NFA ~~in such capacities~~as a commodity pool operator and commodity trading advisor, and ~~such consents, approvals, authorizations, orders, registrations or qualifications~~ (iii) as ~~may be required by securities or state “blue sky” laws in connection~~ a "transfer agent" with the ~~offer~~ Securities and ~~sale~~ Exchange Commission, and this Agreement and the performance of ~~Units. (k) There is no litigation, arbitration, claim, governmental~~ such obligations will not contravene or ~~other proceeding or investigation pending, or, to the knowledge~~ result in a breach of any provision of the Managing Owner's certificate of incorporation, ~~threatened~~by-laws or any agreement, instrument, order, law or regulation binding upon it or any of its employees or principals, except that the registration of Lawrence S. Block, Esq. as a principal of the Managing Owner ix xxxxxxx. (m) The Trust does not require any federal or state governmental, regulatory, self-regulatory or commodity exchange approvals or licenses, and the Trust need not effect any filings or registrations with any federal or state governmental agencies in order to conduct its business and to act as contemplated by the Registration Statement and Prospectus and to issue and sell the Units (other than filings under the 1933 Act, the CE Act and state securities laws relating solely to the offering of the Units). (n) The Managing Owner has the financial resources necessary to meet its obligations to the Selling Agent hereunder. (o) The Managing Owner acknowledges that the Correspondent Selling Agent's customer lists constitute proprietary data belonging to the Correspondent Selling Agent, and the Managing Owner agrees that it will not disseminate any confidential information regarding any of the foregoing, except as required by law. Furthermore, the Managing Owner agrees that it will not independently solicit any client on the Correspondent Selling Agent's customer lists, except as requested by the Correspondent Selling Agent in connection with soliciting investments in the Trust. The Managing Owner further agrees with the Selling Agent and the Correspondent Selling Agent that the Managing Owner will use its best efforts to keep the identity of the Correspondent Selling Agent, as well as the terms of this Agreement, confidential, except as otherwise required by law or otherwise made public by third parties without the negligence, misconduct or breach of the terms hereof by the Managing Owner. (p) The accountants who certified the Statement of Financial Position of the Managing Owner and the Statement of Financial Condition of the Trust included in the Registration Statement are, with respect to the Managing ~~Owner~~Owner and the Trust, Correspondent Selling Agent Agreement independent public accountants as required by the ~~Trust or any Fund, or any of their operations, businesses, properties or assets, except as described in~~ 1933 Act and the ~~Registration Statement or Prospectus or such as would not, if successful, have a material adverse effect upon~~ SEC Regulations. These Statements fairly present the ~~operations, businesses, properties or assets~~ financial position and financial condition of the Managing ~~Owner,~~ Owner and the ~~Trust or any Fund~~Trust, as the case may be~~. None~~ , as of the ~~Managing Owner, the Trust or any Fund is in violation in any material respect~~ date of any law, rule, regulation, order, judgment or decree, except as described in the Registration Statement or Prospectus or as would not have a material adverse effect upon the operations, business, properties or assets of the Managing Owner, the Trust or any Fund. (l) The Managing Owner is not, nor, to the knowledge of the Managing Owner, is any other party, in violation or breach of, or in default with respect to, any material provision of any written contract, agreement, instrument, lease, license or legally binding understanding (“Contract”) which is material to the Managing Owner and which relates to the Trust or the Offering; and each such Contract is in full force and is the legal, valid, and binding obligation of the Managing Owner and/or the Trust and is enforceable as to the Managing Owner and/or the Trust in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generallyStatements. The ~~Managing Owner has no knowledge that any party to any such Contract has any current intention~~ audited Statement of canceling, not renewing or not performing with respect thereto. The Managing Owner enjoys peaceful and undisturbed possession under all leased property from which operations related to the Trust or the Offering are conducted. The Managing Owner is not in violation or breach of, or in default with respect to, any term of its certificate of formation or operating agreement. (m) When the Registration Statement becomes effective under the 1933 Act, each Contract required to be (i) described in the Registration Statement or the Prospectus will be properly described therein and (ii) filed as an exhibit to the Registration Statement will be filed with the SEC as an exhibit to the Registration Statement. (n) The financial statements Position of the Managing Owner and Statement of Financial Condition of the Trust ~~contained~~ are presented in ~~the Registration Statement~~ accordance, and the ~~Prospectus have been examined by an independent registered public accounting firm, as required by the CE Act and the 1933 Act and the rules and regulations~~ unaudited Statements of the CFTC and the SEC, respectively, and when the Registration Statement becomes effective under the 1933 Act, fairly present in all material respects the financial condition and the results of operations thereof as of the dates and for the periods therein specified; and such financial statements have been prepared in accordance with generally accepted accounting principles in the United States consistently applied throughout the periods involved; and no other financial statements are required by Form S-1 to be included in the Registration Statement or the Prospectus. (o) Neither the Managing Owner, nor, to the knowledge of the Managing Owner, any manager, member, director, officer, agent, employee, or other person associated with or acting on behalf Financial Position of the Managing Owner ~~has~~substantially in accordance, ~~directly or indirectly,~~ with Generally Accepted Accounting Principles (i) used any corporate funds for unlawful contributions, gifts, entertainment, or other unlawful expenses relating to political activity; (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from funds of the Managing Owner; (iii) violated any provision of the Foreign Corrupt Practices Act of 1977, as ~~amended or (iv) made any bribe, rebate, payoff, influence payment, kickback, or other unlawful payment. (p) Subsequent to the respective dates as of which information is given~~ currently in effect in the Registration Statement and the Prospectus, and except as described in the Registration Statement or Prospectus, the Trust has not (i) issued any securities or incurred any liability or obligation, primary or contingent, for borrowed money; (ii) entered into any material transaction not in the ordinary course of business or (iii) declared or paid any dividend on its capital stockUnited States). (q) ~~Except~~ The Trust will not be required to register as ~~may be set forth~~ an investment company under the Investment Company Act of 1940 in order to conduct its operations as described in the ~~Registration Statement,~~ Prospectus, this Agreement or any Additional Selling Agent Agreement, neither the Trust nor any Fund has incurred any liability for a fee, commission or other compensation on account of the employment of a broker or finder in connection with the transactions contemplated by this Agreement. (r) Except as contemplated by the Offering, the Placement Agent Agreement, this Agreement or any Additional Selling Agent Agreement or as may have been waived, no Person has any right of first refusal, preemptive right, right to any compensation, or other similar right or option, in connection with the Offering or this Agreement, or any of the transactions contemplated hereby or thereby. (s) Except as may be set forth in the Registration Statement or Prospectus or as may have been waived, no Person has the right to require registration of Units or other securities of the Company upon the filing or effectiveness of the Registration Statement.

Appears in 1 contract

Samples: Selling Agreement (World Monitor Trust III)

Representations and Warranties of the Managing Owner. The Managing Owner represents and warrants to the Correspondent Selling Agent ~~that:~~as follows. (a) A registration statement on Form S-1 for the Trust and the Funds, and as a part thereof a combined prospectus for all Funds with respect to all of the Units being offered (which registration statement together with all amendments thereto, at the time and in the form declared effective by the SEC is referred to herein as the “Registration Statement,” and which prospectus in final form, together with all amendments and supplements thereto, is referred to herein as the “Prospectus”), The Memorandum was prepared in ~~accordance~~ full conformity with the applicable requirements of ~~the Securities Act of 1933, as amended (the “1933 Act”),~~ the CE Act, and the rules, regulations and instructions promulgated under the ~~1933 Act and the~~ CE Act, ~~respectively, has been filed with the SEC, the National Association of Securities Dealers, Inc. (the “NASD”) and the NFA pursuant to the 1933 Act and the CE Act~~ and the rules and regulations ~~promulgated, respectively, thereunder, as well as the rules and regulations~~ of ~~the NASD and~~ the NFA, in the form heretofore delivered to the ~~Placement~~ Selling Agent.; (b) ~~When the Registration Statement becomes effective under the 1933 Act, the Registration Statement and the Prospectus will contain~~ The Memorandum contains all ~~material~~ statements ~~and information~~ that are required to be ~~included therein by the 1933 Act and the CE Act and the rules and regulations~~made therein, ~~respectively, thereunder, as well as the rules and regulations of the NASD and the NFA, and will conform~~ conforms in all material respects to the requirements of the ~~1933 Act and the~~ CE Act and the rules and ~~regulations, respectively, thereunder, as well as the rules and~~ regulations of the ~~NASD~~ CFTC and the NFA, thereunder, and ~~will~~ does not contain ~~any~~ 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~~therein, in light of the circumstances in which they were made) , not misleading; provided, however, that no this representation and warranty is shall not apply to any statements or omissions made in reliance upon and in conformity with ~~respect to~~ information furnished ~~in writing~~ to the Trust or the Managing Owner by the ~~Placement~~ Selling Agent, the ~~Selling Agent~~ Trustee, the Administrator, any commodity broker who has contracted to provide commodity brokerage services to the Trust (each, a “Commodity Broker”) or their respective agents or by or on behalf of any ~~Additional Selling Agent~~ Trading Advisor or any other commodity trading advisor (~~as defined in~~ an “Other Advisor”) engaged by the ~~Placement Agent Agreement)~~Managing Owner on behalf of the Trust for use therein. (c) To The certificate of trust (the ~~knowledge~~ “Certificate of Trust”) pursuant to which the Trust has been formed and the Third Amended and Restated Declaration of Trust and Trust Agreement of the ~~Managing Owner~~Trust, ~~no order~~ as amended from time to time (a the “~~Stop Order~~Trust Agreement”~~) (i) preventing or suspending~~ ), provide for the ~~effectiveness~~ subscription and sale of the ~~Registration Statement or use~~ Units of the ~~Prospectus or any amendment or supplement thereto, (ii) refusing~~ Trust; all action required to ~~permit~~ be taken by the ~~effectiveness~~ Managing Owner and the Trust as a condition to the sale of the ~~Registration Statement, or (iii) suspending the registration or qualification of any Units,~~ Units to qualified subscribers therefor has been ~~issued by~~ taken; and, upon payment of the ~~SEC~~consideration therefor specified in all accepted Subscription Agreements and Powers of Attorney (“Subscription Agreement”), the ~~CFTC, the NASD, the NFA, the “blue sky” or securities authority~~ Units will constitute valid units of ~~any state, or any other federal, state or other governmental agency or body, nor has any of such authorities instituted or, to the knowledge~~ beneficial interest of the ~~Managing Owner, threatened~~ Trust as to ~~institute, any proceedings with respect~~ which the subscribers thereto will have the same limitation on personal liability as stockholders in a private corporation for profit organized under the laws of the State of Delaware and will be Unitholders of the Trust entitled to ~~a Stop Order~~all the applicable benefits under the Trust Agreement and the Delaware Act. (d) The Trust ~~was~~ is a statutory trust duly ~~formed~~ organized pursuant to the Delaware Act and is validly existing ~~as a statutory trust~~ and in good standing under the ~~Trust Act,~~ laws of the State of Delaware with full power and ~~authority~~authority to engage in the business to be conducted by it, as described in the Memorandum. The Trust is in good standing and ~~all~~ qualified to do business in each jurisdiction in which such qualification is necessary ~~authorizations, approvals~~ in order to protect the limited liability of Unitholders and ~~orders~~ in which the nature or conduct of its business as described in the Memorandum requires such qualification and ~~from all federal, state and other governmental or regulatory officials and bodies,~~ the failure to ~~carry out~~ be so qualified would materially adversely affect its ability to perform its obligations under this ~~Agreement~~Agreement and the Advisory Agreement (as defined below). (e) The Managing Owner is, and will continue to be so long as it is the managing owner of the Trust, a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and is in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its ~~certificate of~~ business as described in the Memorandum requires such qualification and the failure to be so qualified would materially adversely affect the Trust’s or the Managing Owner’s ability to perform its obligations hereunder. (f) The Trust and the Managing Owner each have full trust (and corporate power and authority, as the ~~“Trust Certificate”) and~~ case may be, under applicable law to perform its respective obligations under the Trust Agreement, the Advisory Agreements by and among each Trading Advisor, the Managing Owner on behalf of the Trust and the Managing Owner (the “Advisory Agreements”) (references in this Agreement to the Advisory Agreements intend, in respect of each Trading Advisor, to refer only to the Advisory Agreement to which such Trading Advisor is a party) and this Agreement, and to ~~own its properties and~~ conduct its business as described in the ~~Prospectus~~Memorandum. (eg) Each of the Trust Agreement, the Selling Agreement, the Advisory Agreements and this Agreement has been duly and validly authorized, executed and delivered by the Managing Owner on behalf of the Trust and by the Managing Owner, and each constitutes a valid, binding and enforceable agreement of the Trust or such Series and the Managing Owner in accordance with its terms. (h) The execution and delivery of the Trust Agreement, the Advisory Agreements and this Agreement, the incurrence of the obligations set forth therein and herein and the consummation of the transactions contemplated herein and in the Memorandum: (i) will not constitute a breach of, or default under, any instrument or agreement by which the Managing Owner, the Trust, or any of their property or assets is bound, or any statute, order, rule or regulation applicable to the Managing Owner or the Trust, of any court or any governmental body or administrative agency having jurisdiction over the Managing Owner or the Trust; (ii) will not result in the creation or imposition of any lien, charge or encumbrance on any property or assets of the Managing Owner or the Trust; (iii) will not give any party a right to terminate its obligations or result in the acceleration of any obligations under any material instrument or agreement by which the Managing Owner or the Trust, or any of their respective property or assets is bound; and (iv) will not result in any material liability (other than such as may be contemplated hereby and under the Agreements enumerated in this subparagraph) on the part of either the Managing Owner or the Trust. (i) Except as otherwise disclosed in the Memorandum, there is not pending nor, to the best of the Managing Owner’s knowledge, threatened any action, suit or proceeding before or by any court or other governmental body to which the Managing Owner or the Trust is a party, or to which any of the assets of the Managing Owner or the Trust is subject, which might reasonably be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Managing Owner or the Trust or which is required to be disclosed in the Memorandum pursuant to the CE Act or the CFTC Regulations. The Managing Owner has not received any notice of an investigation or warning letter from the NFA or CFTC regarding non-compliance by the Managing Owner with the CE Act or the regulations thereunder. (j) All authorizations, consents or orders of any court, or of any federal, state or other governmental or regulatory agency or body required for the authorization, issuance, offer and sale of the Units have been obtained. (k) The Managing Owner and each of its principals and employees have, and will continue to have ~~for~~ so long as it is the ~~Managing Owner~~managing owner of the Trust, all federal and state governmental, regulatory, self-regulatory and commodity exchange approvals and licenses, and the Managing Owner (either by on behalf of itself or ~~through~~ its principals and employees) has effected all filings and registrations with federal and state governmental, regulatory or self-regulatory agencies required to conduct its business and to act as described in the ~~Registration Statement and Prospectus~~ Memorandum or required to perform its or their obligations as described under the Trust Agreement (including, without limitation, registration (i) as a commodity pool operator under the ~~Commodity Act~~ CE Act, and (ii) membership in the NFA as a “commodity pool operator,” and as a “commodity trading adviser”), except in each case as would not be reasonably likely to have a Material Adverse Effect on the Managing Owner, the Trust or any Fund. (f) The Managing Owner is a limited liability company duly formed, validly existing, and in good standing under the laws of Delaware, with full power and authority, and all necessary consents, authorizations, approvals, orders, licenses, certificates, and permits of and from, and declarations and filings with, all federal, state, local, and other governmental authorities and all courts and other tribunals, to own, lease, license, and use its properties and assets and to carry on its business, in all material respects, in the manner described in the Prospectus. The Managing Owner is duly qualified to do business and is in good standing in each jurisdiction in which its ownership, leasing, licensing, or use of property and assets or the conduct of its business makes such qualification necessary or advisable, except where the failure to be so qualified would not have a material adverse effect on any of the operations, business, properties or assets of the Managing Owner. (g) Each of the Managing Owner this Agreement and the ~~Trust has all requisite power and authority to execute, deliver, and perform its respective~~ performance of such obligations under this Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Managing Owner and the Trust and constitutes a valid and binding agreement of each of the foregoing, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally. (h) The Managing Owner, the Trust and each Fund has the power and authority to enter into the contractual obligations and agreements referred to in the Prospectus (it being understood and agreed that this representation does will not cover the Placement Agent Agreement, this Agreement or any other Additional Selling Agent Agreements). None of (x) the offer and sale of the Units, (y) the execution and delivery of this Agreement or (z) compliance by the Managing Owner or the Trust with the provisions of this Agreement, will conflict with, contravene or result in a breach of any of the terms or provisions of, or result in a default under, (i) any order of the SEC, the NASD, the CFTC or the NFA; (ii) the Trust Certificate, the Trust Agreement or the limited liability company agreement provision of the Managing Owner~~; (iii)~~ ’s certificate of incorporation, by-laws or any ~~indenture, mortgage, deed of trust, loan~~ agreement, instrument, order, law or regulation binding upon it or any of its employees or principals. (l) The Trust does not require any federal or state governmental, regulatory, self-regulatory or commodity exchange approvals or licenses, and the Trust need not effect any filings or registrations with any federal or state governmental agencies in order to conduct its business and to act as contemplated by the Memorandum and to issue and sell the Units (other ~~evidence~~ than filings with the NFA pursuant to the CE Act). (m) The Managing Owner has the financial resources necessary to meet its obligations to the Selling Agent hereunder. (n) All of ~~indebtedness or other agreement or instrument to which~~ the ~~Trust, a Fund or~~ information regarding the actual performance of the accounts of the Managing Owner and the Managing Owner’s principals set forth in the Memorandum is ~~a party or by which their properties or assets are bound~~complete and accurate in all material respects and, except as disclosed in the ~~case of this clause (iii) of an agreement or instrument that would not have a material adverse effect on any~~ Memorandum, is in accordance and compliance with the disclosure requirements under the CE Act and the CFTC Regulations as well as of the ~~operations~~NFA. (o) The Managing Owner acknowledges that the Correspondent Selling Agent’s customer lists constitute proprietary data belonging to the Correspondent Selling Agent, ~~business, properties or assets of~~ and the Managing Owner agrees that it will not disseminate any confidential information regarding any of the foregoing~~; or (iv) to their knowledge~~, ~~any applicable statute or any order~~except as required by law. Furthermore, ~~rule or regulation of any court or of any federal, state or other governmental or regulatory agency or body having jurisdiction over the Trust, a Fund or~~ the Managing Owner or agrees that it will not independently solicit any ~~of their properties; nor will any such actions result~~ client on the Correspondent Selling Agent’s customer lists, except as requested by the Correspondent Selling Agent in connection with soliciting investments in the ~~imposition of any lien, charge or encumbrance upon any~~ Trust. The Managing Owner further agrees with the Selling Agent and the Correspondent Selling Agent that the Managing Owner will use its best efforts to keep the identity of the ~~property~~ Correspondent Selling Agent, as well as the terms of this Agreement, confidential, except as otherwise required by law or ~~assets~~ otherwise made public by third parties without the negligence, misconduct or breach of the ~~Trust, a Fund or~~ terms hereof by the Managing Owner. (ip) The ~~offer and sale of Units have been duly authorized by all necessary action on the part of the Managing Owner and the Trust. The Units~~ Trust will not be required to be offered for sale pursuant to the Offering have been validly authorized and, when issued and delivered in accordance with this Agreement, will be validly issued, fully paid and nonassessable, and will constitute valid units of beneficial interest in the Trust which, when the Registration Statement becomes effective register as an investment company under the ~~1933 Act, will conform~~ Investment Company Act of 1940 in ~~all material respects~~ order to the description thereof contained in the Prospectus. The liability of each Limited Owner will be limited as set forth in the Prospectus and the Trust Agreement, and no Limited Owner will be subject to personal liability for the debts, obligations or liabilities of the Trust or the applicable Fund by reason of his being a Limited Owner other than conduct its operations as described in the ~~Prospectus and the Trust Agreement~~Memorandum. (j) No consent, approval, authorization, order, registration or qualification of or with any court or any federal, state or other governmental or regulatory agency or body is required for the issuance and sale of Units or the consummation of the transactions contemplated by this Agreement, except for the registration of Units under the 1933 Act, submission of the Prospectus to the SEC, NASD, NFA, the continued registration of the Managing Owner under the CE Act as a commodity pool operator and commodity trading advisor and membership by the Managing Owner in the NFA in such capacities, and such consents, approvals, authorizations, orders, registrations or qualifications as may be required by securities or state “blue sky” laws in connection with the offer and sale of Units. (k) There is no litigation, arbitration, claim, governmental or other proceeding or investigation pending, or, to the knowledge of the Managing Owner, threatened, with respect to the Managing Owner, the Trust or any Fund, or any of their operations, businesses, properties or assets, except as described in the Registration Statement or Prospectus or such as would not, if successful, have a material adverse effect upon the operations, businesses, properties or assets of the Managing Owner, the Trust or any Fund, as the case may be. None of the Managing Owner, the Trust or any Fund is in violation in any material respect of any law, rule, regulation, order, judgment or decree, except as described in the Registration Statement or Prospectus or as would not have a material adverse effect upon the operations, business, properties or assets of the Managing Owner, the Trust or any Fund. (l) The Managing Owner is not, nor, to the knowledge of the Managing Owner, is any other party, in violation or breach of, or in default with respect to, any material provision of any written contract, agreement, instrument, lease, license or legally binding understanding (“Contract”) which is material to the Managing Owner and which relates to the Trust or the Offering; and each such Contract is in full force and is the legal, valid, and binding obligation of the Managing Owner and/or the Trust and is enforceable as to the Managing Owner and/or the Trust in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally. The Managing Owner has no knowledge that any party to any such Contract has any current intention of canceling, not renewing or not performing with respect thereto. The Managing Owner enjoys peaceful and undisturbed possession under all leased property from which operations related to the Trust or the Offering are conducted. The Managing Owner is not in violation or breach of, or in default with respect to, any term of its certificate of formation or operating agreement. (m) When the Registration Statement becomes effective under the 1933 Act, each Contract required to be (i) described in the Registration Statement or the Prospectus will be properly described therein and (ii) filed as an exhibit to the Registration Statement will be filed with the SEC as an exhibit to the Registration Statement. (n) The financial statements of the Managing Owner and the Trust contained in the Registration Statement and the Prospectus have been examined by an independent registered public accounting firm, as required by the CE Act and the 1933 Act and the rules and regulations of the CFTC and the SEC, respectively, and when the Registration Statement becomes effective under the 1933 Act, fairly present in all material respects the financial condition and the results of operations thereof as of the dates and for the periods therein specified; and such financial statements have been prepared in accordance with generally accepted accounting principles in the United States consistently applied throughout the periods involved; and no other financial statements are required by Form S-1 to be included in the Registration Statement or the Prospectus. (o) Neither the Managing Owner, nor, to the knowledge of the Managing Owner, any manager, member, director, officer, agent, employee, or other person associated with or acting on behalf of the Managing Owner has, directly or indirectly, (i) used any corporate funds for unlawful contributions, gifts, entertainment, or other unlawful expenses relating to political activity; (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from funds of the Managing Owner; (iii) violated any provision of the Foreign Corrupt Practices Act of 1977, as amended or (iv) made any bribe, rebate, payoff, influence payment, kickback, or other unlawful payment. (p) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, and except as described in the Registration Statement or Prospectus, the Trust has not (i) issued any securities or incurred any liability or obligation, primary or contingent, for borrowed money; (ii) entered into any material transaction not in the ordinary course of business or (iii) declared or paid any dividend on its capital stock. (q) Except as may be set forth in the Registration Statement, Prospectus, this Agreement or any Additional Selling Agent Agreement, neither the Trust nor any Fund has incurred any liability for a fee, commission or other compensation on account of the employment of a broker or finder in connection with the transactions contemplated by this Agreement. (r) Except as contemplated by the Offering, the Placement Agent Agreement, this Agreement or any Additional Selling Agent Agreement or as may have been waived, no Person has any right of first refusal, preemptive right, right to any compensation, or other similar right or option, in connection with the Offering or this Agreement, or any of the transactions contemplated hereby or thereby. (s) Except as may be set forth in the Registration Statement or Prospectus or as may have been waived, no Person has the right to require registration of Units or other securities of the Company upon the filing or effectiveness of the Registration Statement.

Appears in 1 contract

Samples: Correspondent Selling Agent Agreement (World Monitor Trust III - Series J)

Representations and Warranties of the Managing Owner. The Managing Owner represents and warrants to the Selling Agent ~~that~~and the Trading Advisors as follows: (a) A registration statement on Form S-1 for the Trust and ~~the Funds, and~~ as a part thereof a combined prospectus for all ~~Funds~~ Series with respect to all of the Units being offered (which registration ~~statement~~ statement, together with all amendments thereto, at the ~~time~~ times and in the ~~form~~ forms declared effective by the ~~SEC is~~ Securities and Exchange Commission (the "SEC") shall be referred to herein as the “"Registration Statement,” ", and which prospectus in final form, together with all amendments and supplements thereto, is shall be referred to herein as the “"Prospectus”"), prepared in ~~accordance~~ full conformity with the applicable requirements of the Securities Act of 1933, as amended (the “"1933 Act”"), the CE Act, and the rules, regulations and instructions promulgated under the 1933 Act and the CE Act, respectively, ~~has~~ have been filed with the SEC, the National Association of Securities Dealers, Inc. (the “"NASD”") and the NFA pursuant to the 1933 ~~Act and~~ Act, the CE Act and the rules and regulations promulgated, respectively, thereunder, as well as the rules and regulations of the NASD and the NFA, in the form heretofore delivered to the ~~Placement~~ Selling Agent.; (b) ~~When~~ To the best of the Managing Owner's knowledge, no order preventing or suspending the effectiveness of the Registration Statement or use of the Prospectus or any previous prospectus with respect to the Units has been issued by the SEC, the CFTC, the NASD, the NFA or any other federal, state or other governmental agency or body. The Registration Statement contains all statements which are required to be made therein, conforms in all material respects to the requirements of the 1933 Act and the CE Act and the rules and regulations of the SEC and the CFTC, respectively, thereunder, and does 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; and, when the Registration Statement becomes effective under the 1933 ~~Act~~Act and at all times subsequent thereto up to and including the Initial Closing Time for each Series, and thereafter up to and including each subsequent closing date during the Continuous Offering Period, as such terms are hereinafter defined, the Registration Statement and the Prospectus will contain all material statements and information required to be included therein by the 1933 Act and the CE Act and the rules and regulations, respectively, thereunder, as well as the rules and regulations of the NASD and the NFA, and will conform in all material respects to the requirements of the 1933 ~~Act and~~ Act, the CE Act and the rules and regulations, respectively, thereunder, as well as the rules and regulations of the NASD and the NFA, and will not ~~contain~~ include any 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; provided, however, that no this representation and warranty is shall not apply to any statements or omissions made in reliance upon and in conformity with ~~respect to~~ information furnished in writing to the Trust or the Managing Owner by the ~~Placement~~ Selling Agent, the Trustee, any commodity broker who has contracted to provide commodity brokerage services to the Trust (each, a "Commodity Broker") or their respective agents or by or on behalf of any Trading Advisor or any other commodity trading advisor (an "Other Advisor") engaged by the Managing Owner on behalf of the Trust for use therein, all without prejudice to any defense that the Selling Agent ~~or by any Additional Selling Agent (as defined in~~ may have based upon its "due diligence" investigation under the ~~Placement Agent Agreement).~~1933 Act; (c) To The certificate of trust (the ~~knowledge~~ "Certificate of Trust") pursuant to which the Trust has been formed and the Amended and Restated Declaration of Trust and Trust Agreement of the ~~Managing Owner, no order~~ Trust (~~a “Stop Order”~~the "Trust Agreement") ~~(i) preventing or suspending~~ provide for the ~~effectiveness~~ subscription for and sale of the ~~Registration Statement or use~~ Units of the ~~Prospectus or any amendment or supplement thereto, (ii) refusing~~ Trust; all action required to ~~permit~~ be taken by the ~~effectiveness~~ Managing Owner and the Trust as a condition to the sale of the ~~Registration Statement~~Units to qualified subscribers therefor has been, or ~~(iii) suspending~~ prior to the ~~registration or qualification~~ Initial Closing Time for each Series will have been, taken; and, upon payment of ~~any Units, has been issued by~~ the ~~SEC~~consideration therefor specified in all accepted Subscription Agreements and Powers of Attorney, the ~~CFTC,~~ Units of each Series will constitute valid units of beneficial interest in such Series of the ~~NASD,~~ Trust as to which the ~~NFA,~~ subscribers thereto will have the ~~“blue sky” or securities authority~~ same limitation on personal liability as stockholders in a private corporation for profit organized under the laws of ~~any state, or any other federal, state or other governmental agency or body, nor has any~~ the State of Delaware and will be Unitholders of such ~~authorities instituted or, to the knowledge~~ Series of the ~~Managing Owner, threatened~~ Trust entitled to ~~institute, any proceedings with respect to a Stop Order~~all the applicable benefits under the Trust Agreement and the Delaware Act. (d) The Trust ~~was~~ is a statutory trust duly ~~formed~~ organized pursuant to the Delaware Act and is validly existing ~~as a statutory trust~~ and in good standing under the ~~Trust Act,~~ laws of the State of Delaware with full power and ~~authority~~authority to engage in the business to be conducted by it, as described in the Prospectus. The Trust is in good standing and ~~all~~ qualified to do business in each jurisdiction in which such qualification is necessary ~~authorizations, approvals~~ in order to protect the limited liability of Unitholders and ~~orders~~ in which the nature or conduct of its business as described in the Registration Statement requires such qualification and ~~from all federal, state and other governmental or regulatory officials and bodies,~~ the failure to ~~carry out~~ be so qualified would materially adversely affect its ability to perform its obligations under this ~~Agreement~~Agreement and the Advisory Agreement (as defined below). (e) The Managing Owner is, and will continue to be so long as it is the managing owner of the Trust, a corporation duly organized, validly existing and in good standing under the laws of the State of Connecticut and is in good standing and qualified to do business in each jurisdiction in which the nature or conduct of its ~~certificate of~~ business as described in the Registration Statement and Prospectus requires such qualification and the failure to be so qualified would materially adversely affect the Trust's or the Managing Owner's ability to perform its obligations hereunder. (f) The Trust and the Managing Owner each have full trust (and corporate power and authority, as the ~~“Trust Certificate”) and~~ case may be, under applicable law to perform its respective obligations under the Trust Agreement, the escrow agreement described in the Prospectus relating to the offering of the Units (the "Escrow Agreement"), the Advisory Agreements by and among each Trading Advisor, the trading vehicles described in the Prospectus and the Managing Owner (the "Advisory Agreements") (references in this Agreement to the Advisory Agreements intend, in respect of each Trading Advisor, to refer only to the Advisory Agreement to which such Trading Advisor is a party) and this Agreement, and to ~~own its properties and~~ conduct its business as described in the Registration Statement and Prospectus. (eg) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there will not have been any adverse change in the condition (financial or otherwise), business or prospects of the Managing Owner or the Trust, whether or not arising in the ordinary course of business. (h) Each of the Trust Agreement, the Escrow Agreement, the Advisory Agreements and this Agreement has been duly and validly authorized, executed and delivered by the Managing Owner on behalf of the Trust or a Series (including in its capacity as a member of a trading vehicle described in the Prospectus) and by the Managing Owner, and each constitutes a valid, binding and enforceable agreement of the Trust or such Series and the Managing Owner in accordance with its terms. (i) The execution and delivery of the Trust Agreement, the Escrow Agreement, the Advisory Agreements and this Agreement, the incurrence of the obligations set forth therein and herein and the consummation of the transactions contemplated herein, herein and in the Prospectus: (i) will not constitute a breach of, or default under, any instrument or agreement by which the Managing Owner, the Trust or any Series, as the case may be, or any of their property or assets is bound, or any statute, order, rule or regulation applicable to the Managing Owner, the Trust or any Series, as the case may be, of any court or any governmental body or administrative agency having jurisdiction over the Managing Owner, the Trust or any Series, as the case may be; (ii) will not result in the creation or imposition of any lien, charge or encumbrance on any property or assets of the Managing Owner, the Trust or any Series; (iii) will not give any party a right to terminate its obligations or result in the acceleration of any obligations under any material instrument or agreement by which the Managing Owner, the Trust or any Series, as the case may be, or any of their respective property or assets is bound; and (iv) will not result in any material liability (other than such as may be contemplated hereby and under the Agreements enumerated in this subparagraph) on the part of either the Managing Owner, the Trust or any Series. (j) Except as otherwise disclosed in the Registration Statement or the Prospectus, there is not pending nor, to the best of the Managing Owner's knowledge, threatened any action, suit or proceeding before or by any court or other governmental body to which the Managing Owner or the Trust is a party, or to which any of the assets of the Managing Owner or the Trust is subject, which might reasonably be expected to result in any material adverse change in the condition (financial or otherwise), business or prospects of the Managing Owner or the Trust or which is required to be disclosed in the Registration Statement or Prospectus pursuant to the CE Act, the 1933 Act, the CFTC Regulations or the SEC Regulations. The Managing Owner has not received any notice of an investigation or warning letter from the NFA or CFTC regarding non-compliance by the Managing Owner with the CE Act or the regulations thereunder. (k) All authorizations, consents or orders of any court, or of any federal, state or other governmental or regulatory agency or body required for the authorization, issuance, offer and sale of the Units have been obtained. No stop order relating to the Registration Statement has been issued by any federal or state securities commission, and no proceedings therefor are pending or, to the best knowledge of the Managing Owner, threatened. (l) The Managing Owner and each of its principals and employees have, and will continue to have ~~for~~ so long as it is the ~~Managing Owner~~managing owner of the Trust, all federal and state governmental, regulatory, self-regulatory and commodity exchange approvals and licenses, and the Managing Owner (either by on behalf of itself or ~~through~~ its principals and employees) has effected all filings and registrations with federal and state governmental, regulatory or self-regulatory agencies required to conduct its business and to act as described in the Registration Statement and Prospectus or required to perform its or their obligations as described under the Trust Agreement (including, without limitation, registration as a commodity pool operator under the Commodity Act and membership in the NFA as a “commodity pool operator” and as a “commodity trading adviser”), except in each case as would not be reasonably likely to have a Material Adverse Effect on the Managing Owner, the Trust or any Fund. (f) The Managing Owner is a limited liability company duly formed, validly existing, and in good standing under the laws of Delaware, with full power and authority, and all necessary consents, authorizations, approvals, orders, licenses, certificates, and permits of and from, and declarations and filings with, all federal, state, local, and other governmental authorities and all courts and other tribunals, to own, lease, license, and use its properties and assets and to carry on its business, in all material respects, in the manner described in the Prospectus. The Managing Owner is duly qualified to do business and is in good standing in each jurisdiction in which its ownership, leasing, licensing, or use of property and assets or the conduct of its business makes such qualification necessary or advisable, except where the failure to be so qualified would not have a material adverse effect on any of the operations, business, properties or assets of the Managing Owner. (g) Each of the Managing Owner and the Trust has all requisite power and authority to execute, deliver, and perform its respective obligations under this Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Managing Owner and the Trust and constitutes a valid and binding agreement of each of the foregoing, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally. (h) The Managing Owner, the Trust and each Fund has the power and authority to enter into the contractual obligations and agreements referred to in the Prospectus (it being understood and agreed that this representation does not cover the Placement Agent Agreement, this Agreement or any other Additional Selling Agent Agreements). None of (x) the offer and sale of the Units, (y) the execution and delivery of this Agreement or (z) compliance by the Managing Owner or the Trust with the provisions of this Agreement, will conflict with, or result in a breach of any of the terms or provisions of, or result in a default under, (i) any order of the SEC, the NASD, the CFTC or the NFA; (ii) the Trust Certificate, the Trust Agreement or the limited liability company agreement of the Managing Owner; (iii) any indenture, mortgage, deed of trust, loan agreement, other evidence of indebtedness or other agreement or instrument to which the Trust, a Fund or the Managing Owner is a party or by which their properties or assets are bound, except in the case of this clause (iii) of an agreement or instrument that would not have a material adverse effect on any of the operations, business, properties or assets of any of the foregoing; or (iv) to their knowledge, any applicable statute or any order, rule or regulation of any court or of any federal, state or other governmental or regulatory agency or body having jurisdiction over the Trust, a Fund or the Managing Owner or any of their properties; nor will any such actions result in the imposition of any lien, charge or encumbrance upon any of the property or assets of the Trust, a Fund or the Managing Owner. (i) The offer and sale of Units have been duly authorized by all necessary action on the part of the Managing Owner and the Trust. The Units to be offered for sale pursuant to the Offering have been validly authorized and, when issued and delivered in accordance with this Agreement, will be validly issued, fully paid and nonassessable, and will constitute valid units of beneficial interest in the Trust which, when the Registration Statement becomes effective under the 1933 Act, will conform in all material respects to the description thereof contained in the Prospectus. The liability of each Limited Owner will be limited as set forth in the Prospectus and the Trust Agreement, and no Limited Owner will be subject to personal liability for the debts, obligations or liabilities of the Trust or the applicable Fund by reason of his being a Limited Owner other than as described in the Prospectus and the Trust Agreement. (j) No consent, approval, authorization, order, registration or qualification of or with any court or any federal, state or other governmental or regulatory agency or body is required for the issuance and sale of Units or the consummation of the transactions contemplated by this Agreement, except for the registration of Units under the 1933 Act, submission of the Prospectus to the SEC, NASD, NFA, the continued registration of the Managing Owner under the CE Act as a commodity pool operator and commodity trading advisor under the CE Act, (ii) membership in the NFA as a "commodity pool operator" and ~~membership by~~ "commodity trading advisor," and (iii) as a "transfer agent" with the Securities and Exchange Commission, and this Agreement and the performance of such obligations will not contravene or result in a breach of any provision of the Managing Owner's certificate of incorporation, by-laws or any agreement, instrument, order, law or regulation binding upon it or any of its employees or principals. The principals of the Managing Owner identified in the ~~NFA in such capacities, and such consents, approvals, authorizations, orders, registrations or qualifications as may be required by securities or state “blue sky” laws in connection with~~ Registration Statement are all of the ~~offer and sale of Units. (k) There is no litigation, arbitration, claim, governmental or other proceeding or investigation pending, or, to the knowledge~~ principals of the Managing Owner, ~~threatened~~as "principals" is defined by the CFTC regulations. Such principals are duly registered as such on the Managing Owner's commodity pool operator Form 7-R registration, except that the registration of Lawrence S. Block, Esq. as a principal of the Managing Owner ix xxxxxxx. (m) The Trust does not require any federal or state governmental, regulatory, self-regulatory or commodity exchange approvals or licenses, and the Trust need not effect any filings or registrations with any federal or state governmental agencies in order to conduct its business and to act as contemplated by the Registration Statement and Prospectus and to issue and sell the Units (other than filings under the 1933 Act, the CE Act and state securities laws relating solely to the offering of the Units). (n) The Managing Owner has the financial resources necessary to meet its obligations to the Selling Agent hereunder. (o) All of the information regarding the actual performance of the accounts of the Managing Owner and the Managing Owner's principals set forth in the Prospectus is complete and accurate in all material respects and, except as disclosed in the Prospectus, is in accordance and compliance with the disclosure requirements under the CE Act and the CFTC Regulations as well as of the NFA. (p) The Managing Owner acknowledges that the Selling Agent's customer and Correspondent lists constitute proprietary data belonging to the Selling Agent, and the Managing Owner agrees that it will not disseminate any confidential information regarding any of the foregoing, except as required by law. The Managing Owner agrees that (i) it will not, directly or indirectly, solicit a client introduced to the Managing Owner or the Trust by the Selling Agent or any of its Correspondents which client does not have a verifiable preexisting relationship with the Managing Owner (a "Protected Client") to establish a managed account with the Managing Owner or to invest in another fund managed by the Managing Owner unless such solicitation is conducted through the Selling Agent or as otherwise agreed to by the Selling Agent and (ii) if any Protected Client approaches the Managing Owner, the Managing Owner will not accept the account or investment without the Selling Agent's approval. In the event of a breach of the agreements of the Managing Owner in this Section 1(p), the Managing Owner agrees to compensate the Selling Agent with respect to that Protected Client in an amount equal to the amount of ongoing compensation to be paid by the Trust to the Selling Agent with respect to such a Protected Client. Such payments are deemed to be a reasonable estimate of the damage to the Selling Agent and shall be the Selling Agent's exclusive remedy for such breach. (q) The accountants who certified the Statement of Financial Position of the Managing Owner and the Statement of Financial Condition of the Trust included in the Registration Statement are, with respect to the Managing ~~Owner~~Owner and the Trust, independent public accountants as required by the ~~Trust or any Fund, or any of their operations, businesses, properties or assets, except as described in~~ 1933 Act and the ~~Registration Statement or Prospectus or such as would not, if successful, have a material adverse effect upon~~ SEC Regulations. These statements fairly present the ~~operations, businesses, properties or assets~~ financial position and financial condition of the Managing ~~Owner,~~ Owner and the ~~Trust or any Fund~~Trust, as the case may be~~. None~~ , as of the ~~Managing Owner, the Trust or any Fund is in violation in any material respect~~ date of any law, rule, regulation, order, judgment or decree, except as described in the Registration Statement or Prospectus or as would not have a material adverse effect upon the operations, business, properties or assets of the Managing Owner, the Trust or any Fund. (l) The Managing Owner is not, nor, to the knowledge of the Managing Owner, is any other party, in violation or breach of, or in default with respect to, any material provision of any written contract, agreement, instrument, lease, license or legally binding understanding (“Contract”) which is material to the Managing Owner and which relates to the Trust or the Offering; and each such Contract is in full force and is the legal, valid, and binding obligation of the Managing Owner and/or the Trust and is enforceable as to the Managing Owner and/or the Trust in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generallyStatements. The ~~Managing Owner has no knowledge that any party to any such Contract has any current intention~~ audited Statement of canceling, not renewing or not performing with respect thereto. The Managing Owner enjoys peaceful and undisturbed possession under all leased property from which operations related to the Trust or the Offering are conducted. The Managing Owner is not in violation or breach of, or in default with respect to, any term of its certificate of formation or operating agreement. (m) When the Registration Statement becomes effective under the 1933 Act, each Contract required to be (i) described in the Registration Statement or the Prospectus will be properly described therein and (ii) filed as an exhibit to the Registration Statement will be filed with the SEC as an exhibit to the Registration Statement. (n) The financial statements Financial Position of the Managing Owner and Statement of Financial Condition of the Trust ~~contained~~ are presented in ~~the Registration Statement~~ accordance, and the ~~Prospectus have been examined by an independent registered public accounting firm, as required by the CE Act and the 1933 Act and the rules and regulations~~ unaudited Statements of the CFTC and the SEC, respectively, and when the Registration Statement becomes effective under the 1933 Act, fairly present in all material respects the financial condition and the results of operations thereof as of the dates and for the periods therein specified; and such financial statements have been prepared in accordance with generally accepted accounting principles in the United States consistently applied throughout the periods involved; and no other financial statements are required by Form S-1 to be included in the Registration Statement or the Prospectus. (o) Neither the Managing Owner, nor, to the knowledge of the Managing Owner, any manager, member, director, officer, agent, employee, or other person associated with or acting on behalf Financial Position of the Managing Owner ~~has~~substantially in accordance, ~~directly or indirectly,~~ with Generally Accepted Accounting Principles (i) used any corporate funds for unlawful contributions, gifts, entertainment, or other unlawful expenses relating to political activity; (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns from funds of the Managing Owner; (iii) violated any provision of the Foreign Corrupt Practices Act of 1977, as ~~amended or (iv) made any bribe, rebate, payoff, influence payment, kickback, or other unlawful payment. (p) Subsequent to the respective dates as of which information is given~~ currently in effect in the Registration Statement and the Prospectus, and except as described in the Registration Statement or Prospectus, the Trust has not (i) issued any securities or incurred any liability or obligation, primary or contingent, for borrowed money; (ii) entered into any material transaction not in the ordinary course of business or (iii) declared or paid any dividend on its capital stock. (q) Except as may be set forth in the Registration Statement, Prospectus, this Agreement or any Additional Selling Agent Agreement, neither the Trust nor any Fund has incurred any liability for a fee, commission or other compensation on account of the employment of a broker or finder in connection with the transactions contemplated by this AgreementUnited States). (r) ~~Except~~ The Trust will not be required to register as ~~contemplated by~~ an investment company under the ~~Offering, the Placement Agent Agreement, this Agreement or any Additional Selling Agent Agreement or~~ Investment Company Act of 1940 in order to conduct its operations as may have been waived, no Person has any right of first refusal, preemptive right, right to any compensation, or other similar right or option, in connection with the Offering or this Agreement, or any of the transactions contemplated hereby or thereby. (s) Except as may be set forth described in the Registration Statement or Prospectus or as may have been waived, no Person has the right to require registration of Units or other securities of the Company upon the filing or effectiveness of the Registration StatementProspectus.

Appears in 1 contract

Samples: Selling Agreement (World Monitor Trust III)

Common use of Representations and Warranties of the Managing Owner Clause in Contracts