Representations of Advisor Clause Samples

Representations of Advisor. (1) The Advisor is registered as an investment adviser under the Investment Advisers Act. (2) The Advisor has filed a notice of exemption pursuant to Rule 4.14 under the CEA with the CFTC and the National Futures Association. (3) The Advisor is a limited liability company organized and validly existing under the laws of the state of California with the power to own and possess its assets and carry on its business as it is now being conducted. (4) The execution, delivery and performance by the Advisor of this Agreement are within the Advisor’s powers and have been duly authorized by all necessary action on the part of its shareholders, and no action by or in respect of, or filing with, any governmental body, agency or official is required on the part of the Advisor for the execution, delivery and performance by the Advisor of this Agreement, and the execution, delivery and performance by the Advisor of this Agreement do not contravene or constitute a default under (i) any provision of applicable law, rule or regulation, (ii) the Advisor’s governing instruments, or (iii) any agreement, judgment, injunction, order, decree or other instrument binding upon the Advisor. (5) This Agreement is a valid and binding agreement of the Advisor. (6) The Form ADV of the Advisor previously provided to the Sub-Advisor is a true and complete copy of the form filed with the Securities and Exchange Commission and the information contained therein is accurate and complete in all material respects and does not omit to state any material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; (7) The Advisor acknowledges that it received a copy of the Sub-Advisor’s Form ADV at least 48 hours prior to the execution of this Agreement.

Representations of Advisor. Advisor hereby represents that it: a) is registered as an investment adviser under the Advisers Act and will continue to be so registered for so long as this Agreement remains in effect; b) is not prohibited by the 1940 Act or the Advisers Act from performing investment advisory services to the Fund; c) has met, and will continue to meet for so long as this Agreement remains in effect, any applicable federal or state requirements, or the applicable requirements of any regulatory or industry self regulatory agency, or the applicable licensing requirements for the use of any trademarks necessary to be met in order to perform investment advisory services for the Fund; and d) will immediately notify Sub-Advisor of the occurrence of any event that would disqualify Advisor from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act or otherwise.

Representations of Advisor. Advisor represents and warrants to Company as follows: (a) Advisor acknowledges that the Shares will initially be “restricted securities” (as such term is defined in Rule 144 promulgated under the Securities Act of 1933, as amended) (“Rule 144”) and that the certificates evidencing the Shares will include this legend: THE SHARES (OR OTHER SECURITIES) REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THE SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE. Advisor further acknowledges that the Shares cannot be sold unless registered with the United States Securities and Exchange Commission and qualified by appropriate state securities regulators, or unless Advisor obtains written consent from the Company and otherwise complies with an exemption from such registration and qualification (including, without limitation, compliance with Rule 144). (b) Advisor has adequate means of providing for current needs and contingencies, has no need for liquidity in the investment, and is able to bear the economic risk of an investment in the Shares offered by the Company of the size contemplated. Advisor represents that Advisor is able to bear the economic risk of the investment and at the present time can afford a complete loss of such investment. The Advisor has had a full opportunity to inspect the books and records of the Company and to make any and all inquiries of the Company’s officers and directors regarding the Company and its business as Advisor deems appropriate. (c) Advisor is an “Accredited Investor” as defined in Regulation D of the Securities Act of 1933 (the “Act”) and Advisor has sufficient knowledge and experience in financial and business matters that Advisor is capable of evaluating the merits and risks of an investment in the Shares offered by the Company and of making an informed investment decision with respect thereto and has the capacity to protect Advisor’s own interests in connection with Advisor’s proposed investment in the Shares. (d) Advisor is acquiring the Shares solely for Advisor’s own account as principal, for investment purposes only and not with a view to the resale or distribution thereof, in whole or in part, and no other person or entity has a direct or indirect beneficial interest in such Shares. (e) Advisor will not sell or otherwise transfer the Shares without registration under t...

Representations of Advisor. Advisor represents that it is a registered investment advisor under the Investment Advisors Act of 1940 as amended and, for employee benefit accounts, acknowledges that it is a fiduciary to the plan under Section 3 (38) of the Employee Retirement Income Security Act of 1974 (ERISA).

Representations of Advisor. (a) The Advisor represents and warrants to the Sub-Advisor that the Sub- Advisor has been duly appointed by the Board of Trustees of the Trust to provide investment services for the Allocated Portion of the Fund as contemplated hereby and that this Agreement has been duly authorized by the Board of Trustees of the Trust and, to the extent necessary, by the shareholders of the Fund, in each case, including in accordance with Section 15 of the Investment Company Act. (b) The Advisor represents and warrants to the Sub-Advisor that (i) the retention of the Advisor is authorized by the Advisor’s governing documents, (ii) the execution, delivery and performance of this Agreement does not violate any obligation by which the Advisor or its property is bound, whether arising by contract, operation of law or otherwise; and (iii) this Agreement has been duly authorized by appropriate action of the Advisor and when executed and delivered by the Advisor will be the legal, valid and binding obligation of the Advisor, enforceable against the Advisor in accordance with its terms hereof, subject, as to enforcement, to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or law). (c) The Advisor represents and wan-ants that the organization of the Fund and the conduct of the business of the Fund as contemplated by this Agreement, complies, and shall at all times comply, with the requirements imposed upon the Fund by applicable law.

Representations of Advisor. 5.1. Advisor is a Registered Investment Advisor under the laws of the Securities Exchange Commission (SEC) and other jurisdictions in which it may conduct business. 5.2. In performing the Fiduciary Services, Advisor is acting as a fiduciary of the Plan under the Employee Retirement Income Security Act (“ERISA”) for purposes of providing non-discretionary and/or discretionary investment advice. 5.3. Advisor will perform the Fiduciary Services as described above in accordance with the prudent man rule set forth in ERISA Section 404(a)(1)(B). 5.4. Advisor will perform the Non-Fiduciary Services as described above and shall not be liable for any liabilities and claims arising thereunder unless directly caused by Advisor’s intentional misconduct or gross negligence. Advisor shall not be relieved of any liability imposed by the Investment Advisors Act of 1940 or any applicable state laws that cannot be waived. Federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith and, therefore, nothing in this agreement shall in any way constitute a waiver or limitation of any rights that the Client may have under federal and state securities laws. 5.5. Advisor will disclose, to the extent required by ERISA Regulation Section 2550.408b-2(c), to Client any change to the information in this Agreement required to be disclosed by Advisor under ERISA Regulation Section 2550.408b-2(c)(1)(iv) as soon as practicable, but no later than sixty (60) days from the date on which Advisor is informed of the change (unless such disclosure is precluded due to extraordinary circumstances beyond Advisor’s control, in which case the information will be disclosed as soon as practicable). 5.6. In accordance with ERISA Regulation Section 2550.408b-2(c)(1)(iv)(A), Advisor will disclose within thirty

Representations of Advisor. ADVISOR hereby represents that his current principal place of employment has received disclosure as to the ADVISOR's acting as a Scientific Advisor to COUGAR and of the duties required of the ADVISOR under this Agreement, and that such employer consents fully to ADVISOR's execution of this Agreement and position of Scientific Advisor for COUGAR. ADVISOR further represents that there are no binding agreements to which he is a party or by which he is bound, forbidding or restricting his activities herein. In addition, the ADVISOR consents to the use of his name in various reports, brochures or other documents produced by or on behalf of or COUGAR. The ADVISOR understands and acknowledges that he has certain fiduciary and other obligations and responsibilities to COUGAR and its shareholders by virtue of his appointment to the BOARD and hereby agrees to use his best efforts to satisfy such obligations and responsibilities.

Representations of Advisor. The Advisor represents, warrants and agrees that: (a) The Advisory Agreement, which has been approved by the Board, permits the Advisor to delegate to the Sub-advisor the provision of investment services to the Fund as contemplated hereby; and (b) The Advisor is currently in compliance and shall at all times continue to comply with the requirements imposed upon the Advisor by applicable law and regulations.

Representations of Advisor i. Advisor represents that it is duly organized and in good standing under the laws of the State of Minnesota, it is registered as an investment adviser under the Investment Advisers Act of 1940 (the “Advisers Act”) and it maintains adequate procedures to monitor Advisor’s compliance with all applicable provisions of the Advisers Act. Advisor agrees that it shall promptly notify Principal of any change in its status as a registered investment adviser, or any other change in its business that might affect its ability to perform its duties and responsibilities under this Agreement. ii. Advisor represents that it has and will maintain all licenses, registrations, approvals and fidelity bonds required in order to perform its duties and obligations outlined in the Agreement. Specifically, Advisor shall obtain, at its own cost and expense, and keep in force and effect during the term of this Agreement, professional liability insurance and ERISA fidelity bond coverage that meets the requirements as set forth in Section 412(a) of ERISA covering breaches of fiduciary duty under ERISA, errors and omissions.