Common use of Representations, Warranties, and Covenants of the Partnership and the General Partner Clause in Contracts

Representations, Warranties, and Covenants of the Partnership and the General Partner. (a) Representations of the General Partner and the Partnership. The Partnership and the General Partner represent and warrant to the Trading Advisor, as follows: (i) The Partnership has provided to the Trading Advisor, and filed with the SEC, the Registration Statement and has filed copies thereof with: (A) the CFTC under the CEAct; (B) the FINRA pursuant to its Conduct Rules; and (C) the NFA in accordance with NFA Compliance Rule 2-13; and prior to any such filings, the Partnership has provided the Trading Advisor with a reasonable opportunity to review and comment on such Registration Statement. The Partnership will not file any amendment to the Registration Statement or any amendment or supplement to the Prospectus unless the Trading Advisor has received reasonable prior notice of and a copy of such amendments or supplements and has not reasonably objected thereto in writing. The Partnership also has provided, or will provide, as applicable, the Trading Advisor with a copy of any and supplemental selling material, in any form, that refers to the Trading Advisor, together with a reasonable opportunity to review and comment thereon, in advance of its first use. The Partnership will not make any amendment or supplement to any such supplemental selling material unless the Trading Advisor has received reasonable prior notice of and a copy of such amendments or supplements and has not reasonably objected thereto in writing. (ii) The Partnership is a limited partnership duly organized pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the Delaware Revised Uniform Limited Partnership Act ("DRULPA") and is validly existing under the laws of the State of Delaware with full power and authority to engage in the trading of futures interests and to engage in its other contemplated activities as described in the Prospectus; the Partnership has received a certificate of authority to do business in the State of New York as provided by Article 8-A of the New York Revised Limited Partnership Act and is qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualification and where failure to be so qualified could materially adversely affect the Partnership's ability to perform its obligations hereunder. (iii) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and in good standing and qualified to do business as a foreign corporation under the laws of the State of New York and is qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the nature or conduct of its business requires such qualification and where the failure to be so qualified could materially adversely affect the General Partner's ability to perform its obligations hereunder. (iv) The Partnership and the General Partner have full partnership or corporate power and authority under applicable law to conduct their business and to perform their respective obligations under this Agreement. (v) The Registration Statement and Prospectus contain all statements and information required to be included therein by the CEAct. When the Registration Statement becomes effective under the Securities Act and at all times subsequent thereto up to and including the first monthly closing following the date on which the Partnership begins to receive trading advice from the Trading Advisor pursuant to this Agreement (the "Initial Closing") and each monthly closing thereafter, the Registration Statement and Prospectus will comply in all material respects with the requirements of the Securities Act, the rules and regulations promulgated thereunder (the "SEC Regulations"), the rules of FINRA and the rules of the NFA and the CEAct. The Registration Statement as of its effective date and as of the date of each monthly closing will not contain any misleading or 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 not misleading. The Prospectus as of its date of issue and at each monthly closing will not contain any misleading or untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading. The supplemental selling material, when read in conjunction with the Prospectus, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading. The supplemental selling material will comply with the CEAct and the regulations and rules of the NFA and FINRA. The representation and warranties in this clause (v) shall not, however, apply to any statement or omission in the Registration Statement, Prospectus or supplemental selling material relating to the Trading Advisor, or its Trading Advisor Principals or its trading programs or its performance information or made in reliance upon and in conformity with information furnished by the Trading Advisor. (vi) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any material adverse change in the condition, financial or otherwise, business or prospects of the General Partner or the Partnership, whether or not arising in the ordinary course of business. (vii) This Agreement has been duly and validly authorized, executed and delivered by the General Partner for itself and on behalf of the Partnership and constitutes a valid, binding and enforceable agreement of the Partnership and the General Partner in accordance with its terms. (viii) The execution and delivery of this Agreement, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein and in the Registration Statement and Prospectus will not violate, or constitute a breach of, or default under, the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, the Limited Partnership Agreement, or any agreement or instrument by which either the General Partner or the Partnership, as the case may be, is bound or any order, rule, law or regulation applicable to the General Partner or the Partnership of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership. (ix) The General Partner and each principal of the General Partner, as defined in Rule 3.1 under the CEAct, (each, a "General Partner Principal") have all federal and state governmental, regulatory and exchange approvals and licenses, and have effected all filings and registrations with federal and state governmental agencies and regulatory agencies required to conduct their business and to act as described in the Registration Statement and the Prospectus or required to perform their obligations under this Agreement (including, without limitation, registration as a commodity pool operator under the CEAct and membership in the NFA as a commodity pool operator) and will maintain all such required approvals, licenses, filings and registrations for the term of this Agreement. The General Partner's principals identified in the Prospectus are all of the General Partner Principals. (x) The Partnership is a "qualified eligible person" for the purposes of Rule 4.7 under the CEAct. The Partnership and the General Partner consent to the account being treated by the Trading Advisor as an exempt account under Rule 4.7 under the CEAct, and that accordingly, the Partnership and the General Partner will not receive a CFTC compliant commodity trading advisor disclosure document from the Trading Advisor. (xi) The General Partner and the Partnership agree to maintain in confidence any materials (a) belonging to or information about the Trading Advisor marked as confidential or considered confidential by the Trading Advisor and (b) as provided by the Trading Advisor to the General Partner and the Partnership ("Confidential Information"), including but not limited to, trading methods or models, statements received from brokers or any other records of trading results or positions (historical or current), or, which it concurrently, hereafter or previously obtains pursuant to or in connection with this Agreement, except as otherwise agreed with the Trading Advisor. Confidential Information shall not include any information provided by the Trading Advisor to any affiliate or any agent of the General Partner or the Partnership or any such affiliate's or agent's directors, officers, principals, shareholders, employees or agents and any misuse of Confidential Information in breach of this Section 11(a)(xi) and Section 11(a)(xii) hereof shall not include any misuse or breach by any affiliate or any agent of the General Partner or the Partnership or any such affiliate's or agent's directors, officers, principals, shareholders, employees or agents. The General Partner and the Partnership each agree that they will not use any Confidential Information for any purpose not in connection with this Agreement. The General Partner and the Partnership each acknowledge that the trading advisory services provided by the Trading Advisor involve the use of proprietary information, including but not limited to, trading methods or models, systems, algorithms, research, strategies, risk management techniques and procedures, and trading orders placed and trading fills received, trading results, and current and historical trading positions. The General Partner and Partnership each shall not copy, license, misuse, misappropriate or reverse engineer or otherwise appropriate or make use of in any manner any of the Confidential Information or proprietary information of the Trading Advisor, including trading results or current and historical trading positions, previously or currently used by the Trading Advisor in the conduct of its business. The General Partner and Partnership agree that they may not use any Confidential Information in the formulation or computation of any index aiming at being a replication of "commodity pool" returns they may create, sponsor or manage. The General Partner and Partnership may disseminate Confidential Information without the consent of the Trading Advisor, to the extent (a) required by law, legal process or regulation (including any of those applicable to the Partnership), or (b) requested by a governmental or regulatory authority, or (c) necessary to conduct the Partnership's business. (xii) The General Partner and the Partnership each acknowledge and agree that overall market sector positioning data relating to the trading executed by the Trading Advisor is the most specific level of trading, position and exposure transparency that the General Partner and/or the Partnership are permitted to disclose to investors or prospective investors, without the express prior written approval of the Trading Advisor. The Trading Advisor acknowledges and agrees that the General Partner and the Partnership may: (a) disclose to investors specific futures interests held by the Partnership on an aggregate basis without separately breaking out specific futures interests positions or groups of positions taken by the Trading Advisor on an individual basis; and (b) subject to Section 11(a)(xi) hereof, prepare and use any materials for internal meetings and presentations with the General Partner and its officers, directors and employees disclosing specific futures interests traded by the Trading Advisor or any other trading and performance information relating to the Trading Advisor. (xiii) The representations, warranties and covenants set forth in Section 11 (a) (xi) and(xii) hereof shall survive any termination of this Agreement.

Appears in 1 contract

Samples: Management Agreement (Morgan Stanley Spectrum Technical Lp)

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Representations, Warranties, and Covenants of the Partnership and the General Partner. (a) Representations of the Partnership and the General Partner. The General Partner and the Partnership. The Partnership and the General Partner represent and warrant to the Trading Advisor, as follows: (i) The Partnership has provided to the Trading Advisor, and filed with the SEC, the Registration Statement and has filed copies thereof with: (Aa) the CFTC under the CEAct; (Bb) the FINRA NASD pursuant to its Conduct Rules; and (Cc) the NFA in accordance with NFA Compliance Rule 2-13; and prior to any such filings, the Partnership has provided the Trading Advisor with a reasonable opportunity to review and comment on such Registration Statement. The Partnership will not file any amendment to the Registration Statement or any amendment or supplement to the Prospectus unless the Trading Advisor has received reasonable prior notice of and a copy of such amendments or supplements and has not reasonably objected thereto in writing. The Partnership also has provided, or will provide, as applicable, the Trading Advisor with a copy of any and supplemental selling material, in any form, that refers to the Trading Advisor, together with a reasonable opportunity to review and comment thereon, in advance of its first use. The Partnership will not make any amendment or supplement to any such supplemental selling material unless the Trading Advisor has received reasonable prior notice of and a copy of such amendments or supplements and has not reasonably objected thereto in writing. (ii) The Partnership is a limited partnership duly organized pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the Delaware Revised Uniform Limited Partnership Act ("DRULPA") and is validly existing under the laws of the State of Delaware with full power and authority to engage in the trading of futures interests and to engage in its other contemplated activities as described in the Prospectus; the Partnership has received a certificate of authority to do business in the State of New York as provided by Article 8-A of the New York Revised Limited Partnership Act and is qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualification and where failure to be so qualified could materially adversely affect the Partnership's ’s ability to perform its obligations hereunder. (iii) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and in good standing and qualified to do business as a foreign corporation under the laws of the State of New York and is qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the nature or conduct of its business requires such qualification and where the failure to be so qualified could materially adversely affect the General Partner's ’s ability to perform its obligations hereunder. (iv) The Partnership and the General Partner have full partnership or corporate power and authority under applicable law to conduct their business and to perform their respective obligations under this Agreement. (v) The Registration Statement and Prospectus contain all statements and information required to be included therein by the CEAct. When the Registration Statement becomes effective under the Securities Act and at all times subsequent thereto up to and including the first monthly closing following the date on in which the Partnership begins to receive trading advice from the Trading Advisor pursuant to this Agreement (the "Initial Closing") and each monthly closing thereafter, the Registration Statement and Prospectus will comply in all material respects with the requirements of the Securities Act, the rules and regulations promulgated thereunder (the "SEC Regulations"), the rules of FINRA and the rules of the NFA and the CEAct. The Registration Statement as of its effective date and as of the date of each monthly closing will not contain any misleading or 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 not misleading. The Prospectus as of its date of issue and at each monthly closing will not contain any misleading or untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading. The supplemental selling material, when read in conjunction with the Prospectus, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading. The supplemental selling material will comply with the CEAct and the regulations and rules of the NFA and FINRANASD. The representation and warranties in this clause (v) shall not, however, apply to any statement or omission in the Registration Statement, Prospectus or supplemental selling material relating to the Trading Advisor, or its Trading Advisor Principals or its trading programs or its performance information or made in reliance upon and in conformity with information furnished by the Trading Advisor. (vi) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any material adverse change in the condition, financial or otherwise, business or prospects of the General Partner or the Partnership, whether or not arising in the ordinary course of business. (vii) This Agreement has been duly and validly authorized, executed and delivered by the General Partner for itself and on behalf of the Partnership and constitutes a valid, binding and enforceable agreement of the Partnership and the General Partner in accordance with its terms. (viii) The execution and delivery of this Agreement, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein and in the Registration Statement and Prospectus will not violate, or constitute a breach of, or default under, the General Partner's ’s certificate of incorporation or bylaws, the Certificate of Limited Partnership, the Limited Partnership Agreement, or any agreement or instrument by which either the General Partner or the Partnership, as the case may be, is bound or any order, rule, law or regulation applicable to the General Partner or the Partnership of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership. (ix) The General Partner and each principal of the General Partner, as defined in Rule 3.1 under the CEAct, (each, a "General Partner Principal") have all federal and state governmental, regulatory and exchange approvals approvals, registrations, and licenses, and have effected all filings and registrations with federal and state governmental agencies and regulatory agencies required to conduct their business and to act as described in the Registration Statement and the Prospectus or required to perform their obligations under this Agreement (including, without limitation, registration as a commodity pool operator under the CEAct and membership in the NFA as a commodity pool operator) and will maintain all such required approvals, licenses, filings and registrations for the term of this Agreement. The General Partner's ’s principals identified in the Prospectus Registration Statement are all of the General Partner Principals. (x) The Partnership is a "qualified eligible person" for the purposes of Rule 4.7 under the CEAct. The Partnership and the General Partner consent to the account being treated by the Trading Advisor as an exempt account under Rule 4.7 under the CEAct, and that accordingly, the Partnership and the General Partner will not receive a CFTC compliant commodity trading advisor disclosure document from the Trading Advisor. (xi) The General Partner and the Partnership agree to maintain in confidence any materials (a) belonging to or information about the Trading Advisor marked as confidential or considered confidential by the Trading Advisor and (b) as provided by the Trading Advisor to the General Partner and the Partnership ("Confidential Information"), including but not limited to, trading methods or models, statements received from brokers or any other records of trading results or positions (historical or current), or, which it concurrently, hereafter or previously obtains pursuant to or in connection with this Agreement, except as otherwise agreed with the Trading Advisor. Confidential Information shall not include any information provided by the Trading Advisor to any affiliate or any agent of the General Partner or the Partnership or any such affiliate's or agent's directors, officers, principals, shareholders, employees or agents and any misuse of Confidential Information in breach of this Section 11(a)(xi) and Section 11(a)(xii) hereof shall not include any misuse or breach by any affiliate or any agent of the General Partner or the Partnership or any such affiliate's or agent's directors, officers, principals, shareholders, employees or agents. The General Partner and the Partnership each agree that they will not use any Confidential Information for any purpose not in connection with this Agreement. The General Partner and the Partnership each acknowledge that the trading advisory services provided by the Trading Advisor involve the use of proprietary information, including but not limited to, trading methods or models, systems, algorithms, research, strategies, risk management techniques and procedures, and trading orders placed and trading fills received, trading results, and current and historical trading positions. The General Partner and Partnership each shall not copy, license, misuse, misappropriate or reverse engineer or otherwise appropriate or make use of in any manner any of the Confidential Information or proprietary information of the Trading Advisor, including trading results or current and historical trading positions, previously or currently used by the Trading Advisor in the conduct of its business. The General Partner and Partnership agree that they may not use any Confidential Information in the formulation or computation of any index aiming at being a replication of "commodity pool" returns they may create, sponsor or manage. The General Partner and Partnership may disseminate Confidential Information without the consent of the Trading Advisor, to the extent (a) required by law, legal process or regulation (including any of those applicable to the Partnership), or (b) requested by a governmental or regulatory authority, or (c) necessary to conduct the Partnership's business. (xii) The General Partner and the Partnership each acknowledge and agree that overall market sector positioning data relating to the trading executed by the Trading Advisor is the most specific level of trading, position and exposure transparency that the General Partner and/or the Partnership are permitted to disclose to investors or prospective investors, without the express prior written approval of the Trading Advisor. The Trading Advisor acknowledges and agrees that the General Partner and the Partnership may: (a) disclose to investors specific futures interests held by the Partnership on an aggregate basis without separately breaking out specific futures interests positions or groups of positions taken by the Trading Advisor on an individual basis; and (b) subject to Section 11(a)(xi) hereof, prepare and use any materials for internal meetings and presentations with the General Partner and its officers, directors and employees disclosing specific futures interests traded by the Trading Advisor or any other trading and performance information relating to the Trading Advisor. (xiii) The representations, warranties and covenants set forth in Section 11 (a) (xi) and(xii) hereof shall survive any termination of this Agreement.

Appears in 1 contract

Samples: Management Agreement (Morgan Stanley Charter WCM L.P.)

Representations, Warranties, and Covenants of the Partnership and the General Partner. (a) Representations of the Partnership and the General Partner. The General Partner and the Partnership. The Partnership and the General Partner represent and warrant to the Trading Advisor, as follows: (i) The Partnership has provided to the Trading Advisor, and filed with the SEC, the Registration Statement and has filed copies thereof with: (Aa) the CFTC under the CEAct; (Bb) the FINRA NASD pursuant to its Conduct Rules; and (Cc) the NFA in accordance with NFA Compliance Rule 2-13; and prior to any such filings, the Partnership has provided the Trading Advisor with a reasonable opportunity to review and comment on such Registration Statement. The Partnership will not file the Registration Statement or any amendment to the Registration Statement or the Prospectus or any amendment or supplement to the Prospectus unless the Trading Advisor has received reasonable prior notice of and a copy of such amendments or supplements and has not reasonably objected thereto in writing. The General Partner shall not amend the Limited Partnership also has provided, or will provide, as applicable, Agreement with respect to any provision affecting the Trading Advisor with a copy of any and supplemental selling material, in any form, that refers to the Trading Advisor, together with a reasonable opportunity to review and comment thereon, in advance of its first use. The Partnership will not make any amendment or supplement to any such supplemental selling material unless the Trading Advisor has received reasonable prior notice of and a copy of any such amendments or supplements amendment and has not reasonably objected thereto in writing. (ii) The Partnership is a limited partnership duly organized pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the Delaware Revised Uniform Limited Partnership Act ("DRULPA") and is validly existing under the laws of the State of Delaware with full power and authority to engage in the trading of futures interests and to engage in its other contemplated activities as described in the Prospectus; the Partnership has received a certificate of authority to do business in the State of New York as provided by Article 8-A of the New York Revised Limited Partnership Act and is qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualification and where failure to be so qualified could materially adversely affect the Partnership's ’s ability to perform its obligations hereunder. (iii) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and in good standing and qualified to do business as a foreign corporation under the laws of the State of New York and is qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the nature or conduct of its business requires such qualification and where the failure to be so qualified could materially adversely affect the General Partner's ’s ability to perform its obligations hereunder. (iv) The Partnership and the General Partner have full partnership or corporate power and authority under applicable law to conduct their business and to perform their respective obligations under this Agreement. (v) The Registration Statement and Prospectus contain all statements and information required to be included therein by the CEAct. When the Registration Statement becomes effective under the Securities Act and at all times subsequent thereto up to and including the first monthly closing following the date on in which the Partnership begins to receive trading advice from the Trading Advisor pursuant to this Agreement (the "Initial Closing") and each monthly closing thereafter, the Registration Statement and Prospectus will comply in all material respects with the requirements of the Securities Act, the rules and regulations promulgated thereunder (the "SEC Regulations"), the rules of FINRA and the rules of the NFA and the CEAct. The Registration Statement as of its effective date and as of the date of each monthly closing will not contain any misleading or 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 not misleading. The Prospectus as of its date of issue and at each monthly closing will not contain any misleading or untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading. The supplemental selling material, when read in conjunction with the Prospectus, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading. The supplemental selling material will comply with the CEAct and the regulations and rules of the NFA and FINRANASD. The representation and warranties in this clause (v) shall not, however, apply to any statement or omission in the Registration Statement, Prospectus or supplemental selling material relating to the Trading Advisor, or its Trading Advisor Principals or its trading programs or its performance information or made in reliance upon and in conformity with information furnished by the Trading Advisor. (vi) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any material adverse change in the condition, financial or otherwise, business or prospects of the General Partner or the Partnership, whether or not arising in the ordinary course of business. (vii) This Agreement has been duly and validly authorized, executed and delivered by the General Partner for itself and on behalf of the Partnership and constitutes a valid, binding and enforceable agreement of the Partnership and the General Partner in accordance with its terms. (viii) The execution and delivery of this Agreement, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein and in the Registration Statement and Prospectus will not violate, or constitute a breach of, or default under, the General Partner's ’s certificate of incorporation or bylaws, the Certificate of Limited Partnership, the Limited Partnership Agreement, or any agreement or instrument by which either the General Partner or the Partnership, as the case may be, is bound or any order, rule, law or regulation applicable to the General Partner or the Partnership of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership. (ix) The General Partner and each principal of the General Partner, as defined in Rule 3.1 under the CEAct, (each, a "General Partner Principal") have all federal and state governmental, regulatory and exchange approvals approvals, registrations, and licenses, and have effected all filings and registrations with federal and state governmental agencies and regulatory agencies required to conduct their business and to act as described in the Registration Statement and the Prospectus or required to perform their obligations under this Agreement (including, without limitation, registration as a commodity pool operator under the CEAct and membership in the NFA as a commodity pool operator) and will maintain all such required approvals, licenses, filings and registrations for the term of this Agreement. The General Partner's ’s principals identified in the Prospectus Registration Statement are all of the General Partner Principals. (x) The Partnership is a "qualified eligible person" for the purposes of Rule 4.7 under the CEAct. The Partnership and the General Partner consent fees payable to the account being treated by the Trading Advisor as an exempt account under Rule 4.7 under the CEAct, and that accordingly, the Partnership and the General Partner will not receive a CFTC compliant commodity trading advisor disclosure document from the Trading Advisor. (xi) The General Partner and the Partnership agree to maintain in confidence any materials (a) belonging to or information about the Trading Advisor marked as confidential or considered confidential by the Trading Advisor and (b) as provided by the Trading Advisor to the General Partner and the Partnership ("Confidential Information"), including but not limited to, trading methods or models, statements received from brokers or any other records of trading results or positions (historical or current), or, which it concurrently, hereafter or previously obtains pursuant to or in connection with this Agreement, except as otherwise agreed with the Trading Advisor. Confidential Information shall not include any information provided by the Trading Advisor to any affiliate or any agent of the General Partner or the Partnership or any such affiliate's or agent's directors, officers, principals, shareholders, employees or agents and any misuse of Confidential Information in breach of this Section 11(a)(xi) and Section 11(a)(xii) hereof shall not include any misuse or breach by any affiliate or any agent of the General Partner or the Partnership or any such affiliate's or agent's directors, officers, principals, shareholders, employees or agents. The General Partner and the Partnership each agree that they will not use any Confidential Information for any purpose not in connection with this Agreement. The General Partner and the Partnership each acknowledge that the trading advisory services provided by the Trading Advisor involve the use of proprietary information, including but not limited to, trading methods or models, systems, algorithms, research, strategies, risk management techniques and procedures, and trading orders placed and trading fills received, trading results, and current and historical trading positions. The General Partner and Partnership each shall not copy, license, misuse, misappropriate or reverse engineer or otherwise appropriate or make use of in any manner any of the Confidential Information or proprietary information of the Trading Advisor, including trading results or current and historical trading positions, previously or currently used by the Trading Advisor in the conduct of its business. The General Partner and Partnership agree that they may not use any Confidential Information in the formulation or computation of any index aiming at being a replication of "commodity pool" returns they may create, sponsor or manage. The General Partner and Partnership may disseminate Confidential Information without the consent of the Trading Advisor, to the extent (a) required by law, legal process or regulation (including any of those applicable to the Partnership), or (b) requested by a governmental or regulatory authority, or (c) necessary to conduct the Partnership's business. (xii) The General Partner and the Partnership each acknowledge and agree that overall market sector positioning data relating to the trading executed by the Trading Advisor is the most specific level of trading, position and exposure transparency that the General Partner and/or the Partnership are permitted to disclose to investors or prospective investors, without the express prior written approval of the Trading Advisor. The Trading Advisor acknowledges and agrees that the General Partner and the Partnership may: (a) disclose to investors specific futures interests held by the Partnership on an aggregate basis without separately breaking out specific futures interests positions or groups of positions taken by the Trading Advisor on an individual basis; and (b) subject to Section 11(a)(xi) hereof, prepare and use any materials for internal meetings and presentations with the General Partner and its officers, directors and employees disclosing specific futures interests traded by the Trading Advisor or any other trading and performance information relating to the Trading Advisor. (xiii) The representations, warranties and covenants set forth in Section 11 (a6 hereof are in accordance with and in compliance with Section IV. C. of the Guidelines for Registration of Commodity Pool Programs, as adopted in revised form by the North American Securities Administrators Association, Inc. in September 1993, as set forth in Section 7(e) (xi) and(xii) hereof shall survive any termination of this the Limited Partnership Agreement.

Appears in 1 contract

Samples: Management Agreement (Morgan Stanley Charter Aspect L.P.)

Representations, Warranties, and Covenants of the Partnership and the General Partner. (a) Representations of the General Partner and the Partnership. The Partnership and the General Partner represent jointly and severally represent, warrant and certify to the Trading AdvisorInvestment Partnership and WNC that, with respect to the Partnership, as followsof the date hereof: (i) The Partnership has provided to the Trading Advisor, and filed with the SEC, the Registration Statement and has filed copies thereof with: (A) the CFTC under the CEAct; (B) the FINRA pursuant to its Conduct Rules; and (C) the NFA in accordance with NFA Compliance Rule 2-13; and prior to any such filings, the Partnership has provided the Trading Advisor with a reasonable opportunity to review and comment on such Registration Statement. The Partnership will not file any amendment to the Registration Statement or any amendment or supplement to the Prospectus unless the Trading Advisor has received reasonable prior notice of and a copy of such amendments or supplements and has not reasonably objected thereto in writing. The Partnership also has provided, or will provide, as applicable, the Trading Advisor with a copy of any and supplemental selling material, in any form, that refers to the Trading Advisor, together with a reasonable opportunity to review and comment thereon, in advance of its first use. The Partnership will not make any amendment or supplement to any such supplemental selling material unless the Trading Advisor has received reasonable prior notice of and a copy of such amendments or supplements and has not reasonably objected thereto in writing. (ii) 1.1 The Partnership is duly organized and in good standing as a limited partnership duly organized pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the Delaware Revised Uniform Limited Partnership Act ("DRULPA") and is validly existing under the laws of the State state of Delaware its formation with full power and authority to engage in own its apartment complex (the trading of futures interests "Apartment Complex") and to engage in conduct its other contemplated activities as described in the Prospectusbusiness; the Partnership has received a certificate of authority to do business in the State of New York as provided by Article 8-A of the New York Revised Limited Partnership Act and is qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualification and where failure to be so qualified could materially adversely affect the Partnership's ability to perform its obligations hereunder. (iii) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and in good standing and qualified to do business as a foreign corporation under the laws of the State of New York and is qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the nature or conduct of its business requires such qualification and where the failure to be so qualified could materially adversely affect the General Partner's ability to perform its obligations hereunder. (iv) The Partnership and the General Partner have full partnership or corporate the power and authority under applicable law to conduct their business enter into and to perform their respective obligations under this Certification and Agreement. (v) The Registration Statement ; the execution and Prospectus contain all statements delivery of this Certification and information required to be included therein Agreement by the CEAct. When Partnership and the Registration Statement becomes effective General Partner have been duly and validly authorized by all necessary action; the execution and delivery of this Certification and Agreement, the fulfillment of its terms and consummation of the transactions contemplated hereunder do not and will not conflict with or result in a violation, breach or termination of or constitute a default under (or would not result in such a conflict, violation, breach, termination or default with the Securities Act and at all times subsequent thereto up to and including the first monthly closing following the date on giving of notice or passage of time or both) any other agreement, indenture or instrument by which the Partnership begins or any General Partner is bound or any law, regulation, judgment, decree or order applicable to receive trading advice from the Trading Advisor pursuant to Partnership or any General Partner or any of their respective properties; this Certification and Agreement (constitutes the "Initial Closing") valid and each monthly closing thereafter, the Registration Statement and Prospectus will comply in all material respects with the requirements binding agreement of the Securities Act, the rules and regulations promulgated thereunder (the "SEC Regulations"), the rules of FINRA Partnership and the rules General Partner, enforceable against each of them in accordance with its terms. 1.2 The General Partner has delivered to the NFA Investment Partnership, WNC or their affiliates all documents and information which would be material to a prudent investor in deciding whether to invest in the CEActPartnership. The Registration Statement as of its effective date All factual information provided to the Investment Partnership, WNC or their affiliates either in writing or orally, did not, at the time given, and as of does not, on the date of each monthly closing will not hereof, contain any misleading or 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 not misleading. The Prospectus as of its date of issue and at each monthly closing will not contain any misleading or untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which such statements were they are made, not misleading. The supplemental selling material, when read in conjunction with the Prospectus, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light . 1.3 Each of the circumstances under which such statements were made, not misleading. The supplemental selling material will comply with representations and warranties contained in the CEAct Partnership Agreement is true and the regulations and rules correct as of the NFA and FINRA. The representation and warranties in this clause (v) shall not, however, apply to any statement or omission in the Registration Statement, Prospectus or supplemental selling material relating to the Trading Advisor, or its Trading Advisor Principals or its trading programs or its performance information or made in reliance upon and in conformity with information furnished by the Trading Advisordate hereof. (vi) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any material adverse change in the condition, financial or otherwise, business or prospects 1.4 Each of the General Partner or the Partnership, whether or not arising in the ordinary course of business. (vii) This Agreement has been duly covenants and validly authorized, executed and delivered by the General Partner for itself and on behalf of the Partnership and constitutes a valid, binding and enforceable agreement agreements of the Partnership and the General Partner contained in accordance with its termsthe Partnership Agreement has been duly performed to the extent that performance of any covenant or agreement is required on or prior to the date hereof. (viii) The execution and delivery of this Agreement, the incurrence 1.5 All conditions to admission of the obligations set forth herein and Investment Partnership as the consummation investment limited partner of the transactions contemplated herein and Partnership contained in the Registration Statement Partnership Agreement have been satisfied. 1.6 No default has occurred and Prospectus will not violate, is continuing under the Partnership Agreement or constitute a breach of, or default under, any of the General Partner's certificate of incorporation or bylaws, Project Documents (as such term is defined in the Certificate of Limited Partnership, the Limited Partnership Agreement, or any agreement or instrument by which either the General Partner or the Partnership, as the case may be, is bound or any order, rule, law or regulation applicable to the General Partner or the Partnership of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the General Partner or ) for the Partnership. (ix) 1.7 The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable. 1.8 The General Partner and each principal of agrees to take all actions necessary to claim the General PartnerProjected Tax Credit, as defined in Rule 3.1 under the CEAct, (each, a "General Partner Principal") have all federal and state governmental, regulatory and exchange approvals and licenses, and have effected all filings and registrations with federal and state governmental agencies and regulatory agencies required to conduct their business and to act as described in the Registration Statement and the Prospectus or required to perform their obligations under this Agreement (including, without limitation, registration as a commodity pool operator under the CEAct and membership filing of Form(s) 8609 with the Internal Revenue Service. 1.9 No person or entity other than the Partnership holds any equity interest in the NFA as a commodity pool operator) and will maintain all such required approvals, licenses, filings and registrations for the term of this Agreement. The General Partner's principals identified in the Prospectus are all of the General Partner PrincipalsApartment Complex. (x) 1.10 The Partnership is a "qualified eligible person" for has the purposes of Rule 4.7 under the CEAct. The Partnership sole responsibility to pay all maintenance and the General Partner consent operating costs, including all taxes levied and all insurance costs, attributable to the account being treated by the Trading Advisor as an exempt account under Rule 4.7 under the CEAct, and that accordingly, the Partnership and the General Partner will not receive a CFTC compliant commodity trading advisor disclosure document from the Trading AdvisorApartment Complex. (xi) 1.11 The General Partner and the Partnership agree to maintain in confidence any materials (a) belonging to or information about the Trading Advisor marked as confidential or considered confidential by the Trading Advisor and (b) as provided by the Trading Advisor to the General Partner and the Partnership ("Confidential Information"), including but not limited to, trading methods or models, statements received from brokers or any other records of trading results or positions (historical or current), or, which it concurrently, hereafter or previously obtains pursuant to or in connection with this AgreementPartnership, except as otherwise agreed with the Trading Advisor. Confidential Information shall not include any information provided by the Trading Advisor to any affiliate or any agent of the General Partner or the Partnership or any such affiliate's or agent's directors, officers, principals, shareholders, employees or agents and any misuse of Confidential Information in breach of this Section 11(a)(xi) and Section 11(a)(xii) hereof shall not include any misuse or breach by any affiliate or any agent of the General Partner or the Partnership or any such affiliate's or agent's directors, officers, principals, shareholders, employees or agents. The General Partner and the Partnership each agree that they will not use any Confidential Information for any purpose not in connection with this Agreement. The General Partner and the Partnership each acknowledge that the trading advisory services provided by the Trading Advisor involve the use of proprietary information, including but not limited to, trading methods or models, systems, algorithms, research, strategies, risk management techniques and procedures, and trading orders placed and trading fills received, trading results, and current and historical trading positions. The General Partner and Partnership each shall not copy, license, misuse, misappropriate or reverse engineer or otherwise appropriate or make use of in any manner any of the Confidential Information or proprietary information of the Trading Advisor, including trading results or current and historical trading positions, previously or currently used by the Trading Advisor in the conduct of its business. The General Partner and Partnership agree that they may not use any Confidential Information in the formulation or computation of any index aiming at being a replication of "commodity pool" returns they may create, sponsor or manage. The General Partner and Partnership may disseminate Confidential Information without the consent of the Trading Advisor, to the extent (a) required it is protected by lawinsurance and excluding any risk borne by lenders, legal process bears the sole risk of loss if the Apartment Complex is destroyed or regulation (including any of those applicable to condemned or there is a diminution in the Partnership), or (b) requested by a governmental or regulatory authority, or (c) necessary to conduct the Partnership's business. (xii) The General Partner and the Partnership each acknowledge and agree that overall market sector positioning data relating to the trading executed by the Trading Advisor is the most specific level of trading, position and exposure transparency that the General Partner and/or the Partnership are permitted to disclose to investors or prospective investors, without the express prior written approval value of the Trading Advisor. The Trading Advisor acknowledges and agrees that the General Partner and the Partnership may: (a) disclose to investors specific futures interests held by the Partnership on an aggregate basis without separately breaking out specific futures interests positions or groups of positions taken by the Trading Advisor on an individual basis; and (b) subject to Section 11(a)(xi) hereof, prepare and use any materials for internal meetings and presentations with the General Partner and its officers, directors and employees disclosing specific futures interests traded by the Trading Advisor or any other trading and performance information relating to the Trading AdvisorApartment Complex. (xiii) The representations, warranties and covenants set forth in Section 11 (a) (xi) and(xii) hereof shall survive any termination of this Agreement.

Appears in 1 contract

Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 7)

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Representations, Warranties, and Covenants of the Partnership and the General Partner. (a) Representations of the Partnership and the General Partner. The General Partner and the Partnership. The Partnership and the General Partner represent and warrant to the Trading Advisor, as follows: (i) The Partnership has provided to the Trading Advisor, and filed with the SEC, the Registration Statement and has filed copies thereof with: (Aa) the CFTC under the CEAct; (Bb) the FINRA NASD pursuant to its Conduct Rules; and (Cc) the NFA in accordance with NFA Compliance Rule 2-13; and prior to any such filings, the Partnership has provided the Trading Advisor with a reasonable opportunity to review and comment on such Registration Statement. The Partnership will not file any amendment to the Registration Statement or any amendment or supplement to the Prospectus unless the Trading Advisor has received reasonable prior notice of and a copy of such amendments or supplements and has not reasonably objected thereto in writing. The Partnership also has provided, or will provide, as applicable, the Trading Advisor with a copy of any and supplemental selling material, in any form, that refers to the Trading Advisor, together with a reasonable opportunity to review and comment thereon, in advance of its first use. The Partnership will not make any amendment or supplement to any such supplemental selling material unless the Trading Advisor has received reasonable prior notice of and a copy of such amendments or supplements and has not reasonably objected thereto in writing. (ii) The Partnership is a limited partnership duly organized pursuant to the Certificate of Limited Partnership, the Limited Partnership Agreement and the Delaware Revised Uniform Limited Partnership Act ("DRULPA") and is validly existing under the laws of the State of Delaware with full power and authority to engage in the trading of futures interests and to engage in its other contemplated activities as described in the Prospectus; the Partnership has received a certificate of authority to do business in the State of New York as provided by Article 8-A of the New York Revised Limited Partnership Act and is qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualification and where failure to be so qualified could materially adversely affect the Partnership's ability to perform its obligations hereunder. (iii) The General Partner is duly organized and validly existing and in good standing as a corporation under the laws of the State of Delaware and in good standing and qualified to do business as a foreign corporation under the laws of the State of New York and is qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which the nature or conduct of its business requires such qualification and where the failure to be so qualified could materially adversely affect the General Partner's ability to perform its obligations hereunder. (iv) The Partnership and the General Partner have full partnership or corporate power and authority under applicable law to conduct their business and to perform their respective obligations under this Agreement. (v) The Registration Statement and Prospectus contain all statements and information required to be included therein by the CEAct. When the Registration Statement becomes effective under the Securities Act and at all times subsequent thereto up to and including the first monthly closing following the date on in which the Partnership begins to receive trading advice from the Trading Advisor pursuant to this Agreement (the "Initial Closing") and each monthly closing thereafter, the Registration Statement and Prospectus will comply in all material respects with the requirements of the Securities Act, the rules and regulations promulgated thereunder (the "SEC Regulations"), the rules of FINRA and the rules of the NFA and the CEAct. The Registration Statement as of its effective date and as of the date of each monthly closing will not contain any misleading or 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 not misleading. The Prospectus as of its date of issue and at each monthly closing will not contain any misleading or untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading. The supplemental selling material, when read in conjunction with the Prospectus, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which such statements were made, not misleading. The supplemental selling material will comply with the CEAct and the regulations and rules of the NFA and FINRANASD. The representation and warranties in this clause (v) shall not, however, apply to any statement or omission in the Registration Statement, Prospectus or supplemental selling material relating to the Trading Advisor, or its Trading Advisor Principals or its trading programs or its performance information or made in reliance upon and in conformity with information furnished by the Trading Advisor. (vi) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any material adverse change in the condition, financial or otherwise, business or prospects of the General Partner or the Partnership, whether or not arising in the ordinary course of business. (vii) This Agreement has been duly and validly authorized, executed and delivered by the General Partner for itself and on behalf of the Partnership and constitutes a valid, binding and enforceable agreement of the Partnership and the General Partner in accordance with its terms. (viii) The execution and delivery of this Agreement, the incurrence of the obligations set forth herein and the consummation of the transactions contemplated herein and in the Registration Statement and Prospectus will not violate, or constitute a breach of, or default under, the General Partner's certificate of incorporation or bylaws, the Certificate of Limited Partnership, the Limited Partnership Agreement, or any agreement or instrument by which either the General Partner or the Partnership, as the case may be, is bound or any order, rule, law or regulation applicable to the General Partner or the Partnership of any court or any governmental body or administrative agency or panel or self-regulatory organization having jurisdiction over the General Partner or the Partnership. (ix) The General Partner and each principal of the General Partner, as defined in Rule 3.1 under the CEAct, (each, a "General Partner Principal") have all federal and state governmental, regulatory and exchange approvals approvals, registrations, and licenses, and have effected all filings and registrations with federal and state governmental agencies and regulatory agencies required to conduct their business and to act as described in the Registration Statement and the Prospectus or required to perform their obligations under this Agreement (including, without limitation, registration as a commodity pool operator under the CEAct and membership in the NFA as a commodity pool operator) and will maintain all such required approvals, licenses, filings and registrations for the term of this Agreement. The General Partner's principals identified in the Prospectus Registration Statement are all of the General Partner Principals. (x) The Partnership is a "qualified eligible person" for the purposes of Rule 4.7 under the CEAct. The Partnership and the General Partner consent to the account being treated by the Trading Advisor as an exempt account under Rule 4.7 under the CEAct, and that accordingly, the Partnership and the General Partner will not receive a CFTC compliant commodity trading advisor disclosure document from the Trading Advisor. (xi) The General Partner and the Partnership agree to maintain in confidence any materials (a) belonging to or information about the Trading Advisor marked as confidential or considered confidential by the Trading Advisor and (b) as provided by the Trading Advisor to Covenants of the General Partner and the Partnership. The General Partner for itself and the Partnership covenants and agrees that: ("Confidential Information"), including but not limited to, trading methods or models, statements received from brokers or any other records of trading results or positions (historical or current), or, which it concurrently, hereafter or previously obtains pursuant i) The General Partner shall use its best efforts to or in connection with this Agreement, except as otherwise agreed with the Trading Advisor. Confidential Information shall not include any information provided by the Trading Advisor to any affiliate or any agent of maintain all registrations and memberships necessary for the General Partner or its principals to continue to act as described herein and in the Partnership or any such affiliateProspectus and to all times comply in all material respects with all applicable laws, rules, and regulations, to the extent that the failure to so comply would have a materially adverse effect on the General Partner's or agent's directors, officers, principals, shareholders, employees or agents ability to act as described herein and any misuse of Confidential Information in breach of this Section 11(a)(xithe Prospectus. (ii) and Section 11(a)(xii) hereof The General Partner shall not include any misuse or breach by any affiliate or any agent of inform the Trading Advisor immediately as soon as the General Partner or any of its principals becomes the Partnership subject of any investigation, claim, or proceeding of any regulatory authority having jurisdiction over such affiliate's person or agent's directorsbecomes a named party to any litigation materially affecting the condition, officersfinancial or otherwise, principals, shareholders, employees business or agentsprospects of the General Partner. The General Partner and the Partnership each agree that they will not use any Confidential Information for any purpose not in connection with this Agreement. The General Partner and the Partnership each acknowledge that the trading advisory services provided by shall also inform the Trading Advisor involve immediately if the use of proprietary information, including but not limited to, trading methods or models, systems, algorithms, research, strategies, risk management techniques and procedures, and trading orders placed and trading fills received, trading results, and current and historical trading positions. The General Partner and Partnership each shall not copy, license, misuse, misappropriate or reverse engineer or otherwise appropriate or make use of in any manner any of its officers become aware of any breach of this Agreement by the Confidential Information or proprietary information of the Trading Advisor, including trading results or current and historical trading positions, previously or currently used by General Partner. (iii) The Partnership will furnish to the Trading Advisor in the conduct of its business. The General Partner and Partnership agree that they may not use any Confidential Information in the formulation or computation of any index aiming at being a replication of "commodity pool" returns they may create, sponsor or manage. The General Partner and Partnership may disseminate Confidential Information without the consent copies of the Trading AdvisorRegistration Statement, to the extent (a) required by lawProspectus, legal process or regulation (including any of those applicable to the Partnership)and all amendments and supplements thereto, or (b) requested by a governmental or regulatory authority, or (c) necessary to conduct the Partnership's businessin each case as soon as available. (xiiiv) The General Partner and shall change the name of the Partnership each acknowledge and agree that overall market sector positioning data relating so as to exclude the trading executed by name of the Trading Advisor is the most specific level of trading, position and exposure transparency that the General Partner and/or the Partnership are permitted to disclose to investors or prospective investors, without the express prior written approval of if the Trading Advisor. The Advisor ceases to be the sole Trading Advisor acknowledges and agrees that for the Partnership, unless otherwise agreed to by the General Partner and the Partnership may: (a) disclose to investors specific futures interests held by the Partnership on an aggregate basis without separately breaking out specific futures interests positions or groups of positions taken by the Trading Advisor on an individual basis; and (b) subject to Section 11(a)(xi) hereof, prepare and use any materials for internal meetings and presentations with the General Partner and its officers, directors and employees disclosing specific futures interests traded by the Trading Advisor or any other trading and performance information relating to the Trading Advisor. (xiii) The representations, warranties and covenants set forth in Section 11 (a) (xi) and(xii) hereof shall survive any termination of this Agreement.

Appears in 1 contract

Samples: Management Agreement (Morgan Stanley Charter WCM L.P.)

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