Representations of the Fund. The Trust, on behalf of the Fund, represents and warrants that:
(i) the Trust is a business trust established pursuant to the laws of the Commonwealth of Massachusetts;
(ii) the Trust is duly registered as an investment company under the Investment Company Act and the Fund is a duly constituted series portfolio thereof;
(iii) the execution, delivery and performance of this Agreement are within the Trust’s powers, have been and remain duly authorized by all necessary action (including without limitation all necessary approvals and other actions required under the Investment Company Act) and will not violate or constitute a default under any applicable law or regulation or of any decree, order, judgment, agreement or instrument binding on the Trust or the Fund;
(iv) no consent (including, but not limited to, exchange control consents) of any applicable governmental authority or body is necessary, except for such consents as have been obtained and are in full force and effect, and all conditions of which have been duly complied with;
(v) this Agreement constitutes a legal, valid and binding obligation enforceable against the Trust and the Fund in accordance with its terms; and
(vi) the Fund is exempt from registration under the Commodity Exchange Act pursuant to Rule 4.5 of the Commodity Futures Trading Commission (“CFTC”), and the Fund is in compliance with the requirements of CFTC Rule 4.5.
Representations of the Fund. The Fund represents and warrants, which representations and warranties shall be deemed to be continuing throughout the term of this Agreement, that:
(1) the Board has authorized the issuance of an unlimited number of Shares under the terms of its Declaration of Trust, however, only a fraction thereof will have been registered for sale to the public under the Securities Act as of the Agreement Effective Date, pursuant to the Registration Statement effective as of such date, (2) no Shares will be offered to the public until the Registration Statement under the Securities Act and the 1940 Act has been declared or becomes effective, and (3) the Shares are validly authorized and, when issued in accordance with the Registration Statement, will be fully paid and nonassessable.
B. It shall cause the Advisor, prime broker, custodian, legal counsel, independent accountants, and other service providers and agents, past or present, to cooperate with Distributor and to provide it with such information, documents, and advice relating to the Fund as appropriate or requested by Distributor, in order to enable Distributor to perform its duties and obligations under this Agreement.
C. To the knowledge of the Fund, the Fund’s Declaration of Trust, Bylaws, Registration Statement and any advertising materials and sales literature prepared by the Fund or its agent are true and accurate and will remain true and accurate at all times during the term of this Agreement in conformance with Applicable Law.
D. Any officer of the Fund shall be considered an individual who is authorized to provide Distributor with instructions and requests on behalf of the Fund (an “Authorized Person”) (unless such authority is limited in a writing from the Fund and received by Distributor) and has the authority to appoint additional Authorized Persons, to limit or revoke the authority of any previously designated Authorized Person, and to certify to Distributor the names of the Authorized Persons from time to time.
E. The Fund owns, possesses, licenses or has other rights to use all patents, patent applications, trademarks and service marks, trademark and service mark registrations, trade names, copyrights, licenses, inventions, trade secrets, technology, know-how and other intellectual property (collectively, “Intellectual Property”) necessary for or used in the conduct of the Fund’s business and for the offer, issuance, distributions and sale of the Shares in accordance with the terms of the Registra...
Representations of the Fund. The Fund represents to the Transfer Agent that all outstanding Shares are validly issued, fully paid and non-assessable. When Shares are hereafter issued in accordance with the terms of the Fund's Articles of Incorporation and its Prospectus, such Shares shall be validly issued, fully paid and non-assessable.
Representations of the Fund. The Fund represents and warrants, which representations and warranties shall be deemed to be continuing throughout the term of this Agreement, that:
(A) It shall cause its investment adviser(s) and sub-advisers, prime broker, custodian, legal counsel, independent accountants, and other service providers and agents, past or present, for the Fund to cooperate with Xxxxxxx and to provide it with such information, data, documents, and advice relating to the Fund as appropriate or requested by Xxxxxxx, in order to enable Xxxxxxx to perform its duties and obligations under this Agreement. To the extent the Fund or the investment adviser(s) or any other service provider to the Fund is/are unable to supply Ultimus with all of the information necessary for Xxxxxxx to perform the Services, Xxxxxxx will not be able to fully perform the Services and will not be responsible for such failure.
(B) The Fund’s organizational documents, registration statement and prospectus are true and accurate and will remain true and accurate at all times during the term of this Agreement in conformance with applicable federal and state securities laws.
(C) Each of the employees of Xxxxxxx that serves or has served at any time as an officer of the Fund, including the CCO, President, Treasurer, Secretary and the AML Compliance Officer, shall be covered by the Fund’s Directors & Officers/Errors & Omissions insurance policy (the “Policy”) and shall be subject to the provisions of the Fund’s formation document and Bylaws regarding indemnification of its officers. The Fund shall provide Ultimus with proof of current coverage, including a copy of the Policy, and shall notify Xxxxxxx immediately should the Policy be canceled or terminated.
(D) Any officer of the Fund shall be considered an individual who is authorized to provide Xxxxxxx with instructions and requests on behalf of the Fund (an “Authorized Person”) (unless such authority is limited in a writing from the Fund and received by Xxxxxxx) and has the authority to appoint additional Authorized Persons, to limit or revoke the authority of any previously designated Authorized Person, and to certify to Ultimus the names of the Authorized Persons from time to time.
Representations of the Fund. The Fund represents to the Transfer Agent that Shares will be issued in accordance with the terms of the Articles of Incorporation and the Prospectus and that such Shares shall be validly issued, fully paid, and non-assessable by the Fund. In the event that the Directors shall declare a distribution payable in Shares, the Fund shall deliver to the Transfer Agent written notice of such declaration signed on behalf of the Fund by an Officer of the Fund, upon which the Transfer Agent shall be entitled to rely for all purposes, certifying (i) the number of Shares involved, (ii) that all appropriate action has been taken, and (iii) that any amendment to the Articles of Incorporation which may be required has been filed and is effective. Such notice shall be accompanied by an opinion of counsel for the Fund relating to the legal adequacy and effect of the transaction. This provision shall not apply to Shares to be issued in the normal course of reinvestment of any distributions or dividends in accordance with the Fund's Prospectus.
Representations of the Fund. The Fund represents and warrants to the Agent that:
A. The Fund is an open-end diversified investment company under the Investment Company Act of 1940;
B. The Fund is a corporation or business organized, existing, and in good standing under the laws of Maryland;
C. The Fund is empowered under applicable laws and by its Corporate Charter and bylaws to enter into and perform this Agreement;
D. All necessary proceedings required by the Corporate Charter have been taken to authorize it to enter into and perform this Agreement;
E. The Fund will comply with all applicable requirements of the Securities and Exchange Acts of 1933 and 1934, as amended, the Investment Company Act of 1940, as amended, and any laws, rules and regulations of governmental authorities having jurisdiction; and
F. A registration statement under the Securities Act of 1933 is currently effective and will remain effective, and appropriate state securities law filings have been made and will continue to be made, with respect to all shares of the Fund being offered for sale.
Representations of the Fund. The Fund represents and warrants to the Custodian that:
(a) it has the power and authority to enter into and perform its obligations under this Agreement, and it has duly authorized and executed this Agreement so as to constitute its valid and binding obligation;
(b) it is in material compliance with all applicable laws and regulations, including but not limited to the 1940 Act and rules and regulations thereunder; and
(c) in giving any instructions which purport to be “Proper Instructions” under this Agreement, the Fund will act in accordance with the provisions of its certificate of incorporation and bylaws and any applicable laws and regulations.
Representations of the Fund. The Fund certifies to Ultimus that: (1) as of the close of business on the Effective Date, the Fund has authorized unlimited shares, and (2) this Agreement has been duly authorized by the Fund and, when executed and delivered by the Fund, will constitute a legal, valid and binding obligation of the Fund, enforceable against the Fund in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting the rights and remedies of creditors and secured parties.
Representations of the Fund. The Fund represents and warrants to USBFS, which representations and warranties shall be deemed to be continuing throughout the term of this Agreement, that:
A. The Fund is an open-end investment company under the 1940 Act;
B. The Fund is a corporation organized, existing, and in good standing under the laws of the State of Maryland;
C. The Fund is empowered under applicable laws and by its Articles of Incorporation and Bylaws to enter into and perform this Agreement;
D. The Fund will comply with all applicable requirements of the Securities Act of 1933, as amended, the Exchange Act, the 1940 Act, and any laws, rules and regulations of governmental authorities having jurisdiction;
E. The Fund is conducting its business in compliance in all material respects with all applicable laws and regulations, both state and federal, and has obtained all regulatory approvals necessary to carry on its business as now conducted; there is no statute, rule, regulation, order or judgment binding on it and no provision of its charter, bylaws or any contract binding it or affecting its property which would prohibit its execution or performance of this Agreement;
F. A registration statement under the 1940 Act and the Securities Act of 1933, as amended, is made effective and will remain effective, and appropriate state securities law filings have been made and will continue to be made, with respect to all shares of the Fund being offered for sale; and
G. This Agreement has been duly authorized, executed and delivered by the Fund in accordance with all requisite action and constitutes a valid and legally binding obligation of the Fund, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting the rights and remedies of creditors and secured parties.
Representations of the Fund. The Fund represents to the Transfer Agent that Shares will be issued in accordance with the terms of the Declaration of Trust and the Prospectus and that such Shares shall be validly issued, fully paid, and non-assessable by the Fund. In the event that the Trustees shall declare a distribution payable in Shares, the Fund shall deliver to the Transfer Agent written notice of such declaration signed on behalf of the Fund by an Officer of the Fund, upon which the Transfer Agent shall be entitled to rely for all purposes, certifying (i) the number of Shares involved, (ii) that all appropriate action has been taken, and (iii) that any amendment to the Declaration of Trust which may be required has been filed and is effective. Such notice shall be accompanied by an opinion of counsel for the Fund relating to the legal adequacy and effect of the transaction. This provision shall not apply to Shares to be issued in the normal course of reinvestment of any distributions or dividends in accordance with the Fund’s Prospectus.
