Representations, Warranties and Agreements of the Trust. The Trust represents warrants and agrees that: a. The Sub-Adviser has been duly appointed by the Board of Trustees of the Trust to provide investment services to the Sub-Advised Accounts as contemplated hereby. b. The Trust will deliver to the Sub-Adviser a true and complete copy of the Fund’s then current Prospectus and Statement of Additional Information and such other documents or instruments governing the investment of the Sub-Advised Accounts issued pursuant to Section 5(a) and such other information as is necessary for the Sub-Adviser to carry out its obligations under this Agreement, promptly upon request by the Sub-Adviser. c. The Trust is currently in compliance in all material respects and shall at all times continue to comply in all material respects with the requirements imposed upon the Trust by applicable law and regulations. d. Subject to any security which may be given by the Fund in favour of any of the clearing brokers, any counterparty or to the operator of any settlement system or clearing house, in each case in accordance with normal market practice: i. the Fund is solely and beneficially entitled to the Investments; and ii. the Fund will remain solely and beneficially entitled to the Investments at all times during the term of this Agreement and will not (other than in the circumstances set out above) dispose of, charge, or otherwise encumber the Investments without the prior written consent of the Sub-Adviser; e. in appointing the Sub-Adviser under this Agreement, the Trust is acting as principal and not on behalf of any other person as agent, trustee or in any other fiduciary or representative capacity and the Sub-Adviser shall treat only the Trust as its client even where the Trust has disclosed or identified an underlying client of the Trust to the Sub-Adviser, unless otherwise agreed in writing; f. the Trust has read and understood the Disclosure Document set out in Annex B hereof as amended from time to time (including the Risk Disclosure Statement contained therein), and will read amendments thereto when provided by the Sub-Adviser, and is aware of the risks inherent in the Investment Program (including, without limitation, the risks inherent in trading the financial instruments envisaged in the Investment Program) and the Investment Guidelines; g. the Trust is not entering into this Agreement as a consequence of any advice given to it by the Sub-Adviser; h. the Trust will maintain in place agreements with the clearing brokers of the Fund (and enter into or provide such ancillary documents) that are sufficient (including as to trading and credit limits) so as to enable the Sub-Adviser to: (1) apply the Investment Program in relation to the Sub-Advised Accounts in accordance with the Trading Level (as adjusted from time to time) and (2) provide any other services to the Trust contemplated under this Agreement. The Trust will promptly notify the Sub-Adviser if any such agreement or document is terminated or is amended so as to prevent the Sub-Adviser in any way from providing the services set out in this Agreement to the Trust; i. the Trust will act at all times in compliance with the terms of all broker agreements to which it is a party or which the Sub-Adviser enters into on the Fund’s behalf and which are disclosed to the Trust; j. the Trust has in place all regulatory approvals, license and/or exemptions as may be necessary in order for it enter into and perform its obligations under this Agreement; k. the Fund is not a “benefit plan investor” (as defined below) and the Trust agrees to notify the Sub-Adviser immediately if the Fund becomes a benefit plan investor. As used herein, “benefit plan investor” means (1) any “employee benefit plan” as defined in, and subject to the fiduciary responsibility provisions of, the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (2) any “plan” as defined in and subject to Section 4975 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), and (3) any entity deemed for any purpose of ERISA or Section 4975 of the Code to hold “plan assets” of any such employee benefit plan or plan due to investments made in such entity by already described benefit plan investors (as determined under Section 3(42) of ERISA) ; l. the Fund is an ‘eligible contract participant’ (as such term is defined in Section 1(a)(18) of the U.S. Commodity Exchange Act 1936), as amended; m. the Fund is a “qualified eligible person” as that term is defined in U.S. Commodity Futures Trading Commission (“CFTC”) Regulation 4.7 and consents to being treated as “exempt” for the purposes of CFTC Regulation 4.7; and The Trust agrees immediately to notify the Sub-Adviser and, where relevant, any competent authority if any of the statements above becomes incorrect.
Appears in 3 contracts
Samples: Sub Advisory Agreement, Sub Advisory Agreement (Equinox Funds Trust), Sub Advisory Agreement (Equinox Funds Trust)
Representations, Warranties and Agreements of the Trust. The Trust represents represents, warrants and agrees that:
a. The Sub-Adviser has been duly appointed by the Board of Trustees of the Trust to provide investment services to the Sub-Advised Accounts Fund Account as contemplated hereby.
b. The Trust will deliver to the Sub-Adviser a true and complete copy of the Fund’s then current Prospectus and Statement of Additional Information as effective from time to time and such other documents or instruments governing the investment of the Sub-Advised Accounts issued pursuant to Section 5(a) Fund Account and such other information as is necessary for the Sub-Adviser to carry out its obligations under this Agreement, promptly upon request by the Sub-Adviser.
c. The Trust is currently in material compliance in all material respects and shall at all times continue to comply in all material respects with the requirements imposed upon the Trust by applicable law and regulations.
d. Subject to any security which may be given by the Fund in favour of any of the clearing brokers, any counterparty or to the operator of any settlement system or clearing house, in each case in accordance with normal market practice:
i. the The Fund is solely and beneficially entitled to a “qualified institutional buyer” (“QIB”) as defined in Rule 144A under the Investments; and
ii. the Fund will remain solely and beneficially entitled to the Investments at all times during the term Securities Act of this Agreement and will not (other than in the circumstances set out above) dispose of1933, chargeas amended, or otherwise encumber the Investments without the prior written consent of the Sub-Adviser;
e. in appointing the Sub-Adviser under this Agreement, the Trust is acting as principal and not on behalf of any other person as agent, trustee or in any other fiduciary or representative capacity and the Sub-Adviser shall treat only the Trust as its client even where the Trust has disclosed or identified an underlying client of the Trust to the Sub-Adviser, unless otherwise agreed in writing;
f. the Trust has read and understood the Disclosure Document set out in Annex B hereof as amended from time to time (including the Risk Disclosure Statement contained therein), and will read amendments thereto when provided by the Sub-Adviser, and is aware of the risks inherent in the Investment Program (including, without limitation, the risks inherent in trading the financial instruments envisaged in the Investment Program) and the Investment Guidelines;
g. the Trust is not entering into this Agreement as a consequence of any advice given to it by the Sub-Adviser;
h. the Trust will maintain in place agreements with the clearing brokers of the Fund (and enter into or provide such ancillary documents) that are sufficient (including as to trading and credit limits) so as to enable the Sub-Adviser to: (1) apply the Investment Program in relation to the Sub-Advised Accounts in accordance with the Trading Level (as adjusted from time to time) and (2) provide any other services to the Trust contemplated under this Agreement. The Trust will promptly notify the Sub-Adviser if any such agreement or document is terminated or is amended so as to prevent the Sub-Adviser in any way from providing the services set out in this Agreement to the Trust;
i. the Trust will act at all times in compliance with the terms of all broker agreements to which it is a party or which the Sub-Adviser enters into on the Fund’s behalf and which are disclosed to the Trust;
j. the Trust has in place all regulatory approvals, license and/or exemptions as may be necessary in order for it enter into and perform its obligations under this Agreement;
k. the Fund is not ceases to be a “benefit plan investor” (as defined below) and the Trust agrees to notify the Sub-Adviser immediately if the Fund becomes a benefit plan investor. As used herein, “benefit plan investor” means (1) any “employee benefit plan” as defined in, and subject to the fiduciary responsibility provisions of, the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (2) any “plan” as defined in and subject to Section 4975 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), and (3) any entity deemed for any purpose of ERISA or Section 4975 of the Code to hold “plan assets” of any such employee benefit plan or plan due to investments made in such entity by already described benefit plan investors (as determined under Section 3(42) of ERISA) ;QIB.
l. the Fund is an ‘eligible contract participant’ (as such term is defined in Section 1(a)(18) of the U.S. Commodity Exchange Act 1936), as amended;
m. the e. The Fund is a “qualified eligible person” (“QEP”) as that term is defined in U.S. Commodity Futures Trading Commission Rule 4.7 (“CFTCCFTC Rule 4.7”) Regulation 4.7 ), and consents to being treated as “exempt” for the purposes of CFTC Regulation 4.7; and The Trust agrees immediately to will promptly notify the Sub-Adviser andif the Fund ceases to be a QEP, where relevantand hereby consents for the Fund to be treated as an “exempt account” under CFTC Rule 4.7.
f. The Fund Account’s assets are free from all liens and charges, any competent authority if any and the Trust undertakes that no liens or charges will arise from the acts or omissions of the statements above becomes incorrectTrust which may prevent the Sub-Adviser from giving a first priority lien or charge on the assets solely in connection with the Sub-Adviser’s authority to direct the deposit of margin or collateral to the extent necessary to meet the obligations of the Fund with respect to any investments made for the Fund Account.
Appears in 2 contracts
Samples: Sub Advisory Agreement (Wilmington Funds), Sub Advisory Agreement (MTB Group of Funds)
Representations, Warranties and Agreements of the Trust. The Trust represents represents, warrants and agrees that:
a. The Sub-Adviser has been duly appointed by the Board of Trustees of the Trust to provide investment services to the Sub-Advised Accounts Fund Account as contemplated hereby.
b. The Trust will deliver to the Sub-Adviser a true and complete copy of the Fund’s then current Prospectus and Statement of Additional Information as effective from time to time, and such other documents or instruments governing the investment of the Sub-Advised Accounts issued pursuant to Section 5(a) Fund Account and such other information as is necessary for the Sub-Adviser to carry out its obligations under this Agreement, promptly upon request by the Sub-Adviser.
c. The Trust is currently in material compliance in all material respects and shall at all times continue to so comply in all material respects with the requirements imposed upon the Trust by applicable law and regulations.
d. Subject to any security which may be given by The Trust is an investment company registered under the Fund in favour Investment Company Act of any 1940 and not formed for the specific purpose of the clearing brokers, any counterparty or to the operator of any settlement system or clearing house, in each case in accordance with normal market practice:
i. the Fund is solely and beneficially entitled to the Investments; and
ii. the Fund will remain solely and beneficially entitled to the Investments at all times during the term of entering into this Agreement and will not (other than in the circumstances set out above) dispose of, charge, or otherwise encumber the Investments without the prior written consent of with the Sub-Adviser;
e. The Trust satisfies the “portfolio requirement” as defined in appointing CFTC Regulation 4.7(a)(1)(v) and is therefore a “qualified eligible person,” as defined in CFTC Regulation 4.7(a)(3) who has evaluated the risks of investing in the types of trading program contemplated in the Investment Guidelines.
g. The Trust has received a copy of the Sub-Adviser’s Form ADV Part 2 and Privacy Notice, which has been delivered by the Sub-Adviser to the Trust prior to the execution of this Agreement.
h. The Trust is duly organized, validly existing, and in good standing as a statutory trust under the laws of the State of Delaware, and is qualified to do business in each jurisdiction in which failure to be so qualified would reasonably be expected to have a material adverse effect upon it.
i. The execution, delivery and performance by the Trust of this Agreement are within the Trust’s powers and have been duly authorized by all necessary action, and no action by or in respect of, or filing with, any governmental body, agency or official is required on the part of the Trust for the execution, delivery and performance of this Agreement, and the execution, delivery and performance of this Agreement by the Trust does not contravene or constitute a default under (i) any provision of applicable law, rule or regulation applicable to the Trust, (ii) the Trust’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instruments binding upon the Trust. Any individuals whose signatures are affixed to this Agreement on behalf of the Trust have full authority and power to execute this Agreement on behalf of the Trust.
j. This Agreement is enforceable against the Trust in accordance with its terms, subject as to enforcement to bankruptcy, insolvency, reorganization, arrangement, moratorium, and other similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
k. There are no material pending or, to knowledge, threatened, or contemplated actions, suits, proceedings, or investigations before or by any court, governmental, administrative, or self-regulatory body, board of trade, exchange, or arbitration panel to which it or any of its affiliates, is a party or to which it or any of its affiliates or assets are subject, nor has it or any of its affiliates received any notice of an investigation, inquiry, or dispute by any court, governmental, administrative, or self-regulatory body, board of trade, exchange, or arbitration panel regarding any of their respective activities which might reasonably be expected to result in a material adverse change in the Trust’s financial or business prospects, or which might reasonably be expected to materially impair the Trust’s ability to discharge its obligations under this Agreement or the Investment Advisory Contract with the Adviser.
l. If, at any time during the term of this Agreement, the Trust is acting as principal discovers any fact or omission, or any event or change of circumstances has occurred, which would make any of its representations and not on behalf of any other person as agent, trustee warranties in this Agreement inaccurate or incomplete in any other fiduciary or representative capacity and material respect, it will provide prompt written notification to the Sub-Adviser shall treat only the Trust as its client even where the Trust has disclosed of such fact, omission, event, or identified an underlying client change of the Trust to the Sub-Adviser, unless otherwise agreed in writing;
f. the Trust has read and understood the Disclosure Document set out in Annex B hereof as amended from time to time (including the Risk Disclosure Statement contained therein)circumstance, and will read amendments thereto when provided by the Sub-Adviser, and is aware of the risks inherent in the Investment Program (including, without limitation, the risks inherent in trading the financial instruments envisaged in the Investment Program) and the Investment Guidelines;
g. the Trust is not entering into this Agreement as a consequence of any advice given to it by the Sub-Adviser;
h. the Trust will maintain in place agreements with the clearing brokers of the Fund (and enter into or provide such ancillary documents) that are sufficient (including as to trading and credit limits) so as to enable the Sub-Adviser to: (1) apply the Investment Program in relation to the Sub-Advised Accounts in accordance with the Trading Level (as adjusted from time to time) and (2) provide any other services to the Trust contemplated under this Agreementfacts related thereto. The Trust Adviser agrees that it will promptly notify the Sub-Adviser if any such agreement or document is terminated or is amended so as provide prompt notice to prevent the Sub-Adviser in any way from providing the services set out event that: (i) the Adviser makes an assignment for the benefit of creditors, files a voluntary petition in this Agreement bankruptcy, or is otherwise adjudged bankrupt or insolvent by a court of competent jurisdiction; or (ii) a material event occurs that could reasonably be expected to adversely impact the Trust;
i. the Trust will act at all times in compliance with the terms of all broker agreements Adviser’s ability to which it is a party or which the Sub-Adviser enters into on the Fund’s behalf and which are disclosed to the Trust;
j. the Trust has in place all regulatory approvals, license and/or exemptions as may be necessary in order for it enter into and perform its obligations under this Agreement;
k. the Fund is not a “benefit plan investor” (as defined below) and the Trust agrees to notify the Sub-Adviser immediately if the Fund becomes a benefit plan investor. As used herein, “benefit plan investor” means (1) any “employee benefit plan” as defined in, and subject to the fiduciary responsibility provisions of, the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (2) any “plan” as defined in and subject to Section 4975 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), and (3) any entity deemed for any purpose of ERISA or Section 4975 of the Code to hold “plan assets” of any such employee benefit plan or plan due to investments made in such entity by already described benefit plan investors (as determined under Section 3(42) of ERISA) ;
l. the Fund is an ‘eligible contract participant’ (as such term is defined in Section 1(a)(18) of the U.S. Commodity Exchange Act 1936), as amended;
m. the Fund is a “qualified eligible person” as that term is defined in U.S. Commodity Futures Trading Commission (“CFTC”) Regulation 4.7 and consents to being treated as “exempt” for the purposes of CFTC Regulation 4.7; and The Trust agrees immediately to notify the Sub-Adviser and, where relevant, any competent authority if any of the statements above becomes incorrect.
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