Representations of the Parties. The Sub-Adviser represents, warrants, and agrees as follows: (a) The Sub-Adviser (i) is duly formed and validly existing in accordance with the laws of the State of Delaware; (ii) 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; (iii) is not prohibited by the 1940 Act or the Advisers Act from performing the services contemplated by this Agreement; (iv) has met, and will seek to continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency, necessary to be met in order to perform the services contemplated by this Agreement; (v) has the capacity and authority to enter into this Agreement (vi) this Agreement has been duly authorized, executed and delivered on its behalf and is a valid and binding agreement enforceable in accordance with its terms;(vii) entry into this Agreement will not breach or cause to be breached any undertaking, agreement, contract, statute, rule or regulation to which it is a party or by which it is bound which would materially limit or affect the performance of its duties thereunder; and (viii) will promptly notify UBS Global AM of the occurrence of any event that would disqualify the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act or otherwise. (b) The Sub-Adviser has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act and will provide UBS Global AM and the Board with a copy of such code of ethics, together with evidence of its adoption. Within fifteen days of the end of the last calendar quarter of each year that this Agreement is in effect, a duly authorized officer of the Sub-Adviser shall certify to UBS Global AM that the Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous year and that there has been no material violation of the Sub-Adviser’s code of ethics or, if such a violation has occurred, that appropriate action was taken in response to such violation. Upon the written request of UBS Global AM, the Sub-Adviser shall permit UBS Global AM, its employees or its agents to examine the reports required to be made by the Sub-Adviser pursuant to Rule 17j-1 and all other records relevant to the Sub-Adviser’s code of ethics. (c) The Sub-Adviser has provided UBS Global AM with a copy of its Form ADV, as most recently filed with the Securities and Exchange Commission (“SEC”), and promptly will furnish a copy of all amendments to UBS Global AM at least annually. (d) The Sub-Adviser will notify UBS Global AM of any change of control of the Sub-Adviser, including any change of its general partners or 25% shareholders or 25% limited partners, as applicable, and any changes in the key personnel who are either the portfolio manager(s) of the Portfolio or senior management of the Sub-Adviser, in each case prior to or promptly after such change.
Appears in 2 contracts
Sources: Sub Advisory Agreement (Pace Select Advisors Trust), Sub Advisory Agreement (Ubs Pace Select Advisors Trust)
Representations of the Parties. The Sub-Adviser represents, warrants, Each party hereto hereby further represents and agrees as follows:
(a) The Sub-Adviser warrants to the other that: (i) is duly formed and validly existing in accordance with the laws of the State of Delaware; (ii) it is registered as an investment adviser under the Advisers Act and will continue is registered or licensed as an investment adviser under the laws of all jurisdictions in which its activities require it to be so registered for so long as or licensed; and (ii) it will use its reasonable best efforts to maintain each such registration or license in effect at all times during the term of this Agreement remains in effectAgreement; and (iii) it will promptly notify the other if it ceases to be so registered, if its registration is suspended for any reason, or if it is notified by any regulatory organization or court of competent jurisdiction that it should show cause why its registration should not prohibited by the 1940 Act be suspended or the Advisers Act from performing the services contemplated by this Agreementterminated; (iv) has met, and will seek to continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency, necessary to be met in order to perform the services contemplated by this Agreement; (v) has the capacity and authority it is duly authorized to enter into this Agreement and to perform its obligations hereunder; and (viv) this Agreement it has been duly authorized, executed and delivered on its behalf incorporated and is validly existing and in good standing as a valid and binding agreement enforceable in accordance with its terms;(vii) entry into this Agreement will not breach or cause to be breached any undertaking, agreement, contract, statute, rule or regulation to which it is a party or by which it is bound which would materially limit or affect corporation under the performance laws of its duties thereunder; and (viiistate of incorporation. The Sub-Adviser further represents that it has adopted a written Code of Ethics in compliance with Rule 17j-1(b) will promptly notify UBS Global AM of the occurrence ICA. The Sub-Adviser shall be subject to such Code of Ethics, and shall not be subject to any event that would disqualify other Code of Ethics, including the Investment Manager's Code of Ethics, unless specifically adopted by the Sub-Adviser. The Investment Manager further represents and warrants to the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(athat (i) of the 1940 Act or otherwise.
(b) The Sub-Adviser has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act and will provide UBS Global AM and the Board with a copy of such code of ethics, together with evidence of its adoption. Within fifteen days of the end of the last calendar quarter of each year that this Agreement is in effect, a duly authorized officer appointment of the Sub-Adviser shall certify by the Investment Manager has been duly authorized and (ii) it has acted and will continue to UBS Global AM act in connection with the transactions contemplated hereby, and the transactions contemplated hereby are, in conformity with the ICA, the Company's governing documents and other applicable law. The Investment Manager acknowledges and agrees that the Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous year and that there has been makes no material violation of the Sub-Adviser’s code of ethics orrepresentation or warranty, if such a violation has occurredexpress or implied, that appropriate action was taken in response to such violation. Upon the written request any level of UBS Global AM, the Sub-Adviser shall permit UBS Global AM, its employees performance or its agents to examine the reports required to investment results will be made achieved by the Sub-Adviser pursuant to Rule 17j-1 and all Fund or that the Fund will perform comparably with any standard or index, including other records relevant to the Sub-Adviser’s code of ethics.
(c) The Sub-Adviser has provided UBS Global AM with a copy of its Form ADV, as most recently filed with the Securities and Exchange Commission (“SEC”), and promptly will furnish a copy of all amendments to UBS Global AM at least annually.
(d) The Sub-Adviser will notify UBS Global AM of any change of control clients of the Sub-Adviser, including any change of its general partners whether public or 25% shareholders or 25% limited partners, as applicable, and any changes in the key personnel who are either the portfolio manager(s) of the Portfolio or senior management of the Sub-Adviser, in each case prior to or promptly after such changeprivate.
Appears in 2 contracts
Sources: Sub Advisory Agreement (American Skandia Advisor Funds Inc), Sub Advisory Agreement (American Skandia Advisor Funds Inc)
Representations of the Parties. The Sub-Adviser represents, warrants, warrants and agrees as follows:
(a) The Sub-Adviser (i) is duly formed and validly existing in accordance with the laws of the State of Delaware; (ii) 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; (iii) is not prohibited by the 1940 Act or the Advisers Act from performing the services contemplated by this Agreement; (iv) has met, and will seek to continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency, necessary to be met in order to perform the services contemplated by this Agreement; (v) has the capacity and authority to enter into this Agreement (vi) this Agreement has been duly authorized, executed and delivered on its behalf and is a valid and binding agreement enforceable in accordance with its terms;(viiterms; (vii) entry into this Agreement will not breach or cause to be breached any undertaking, agreement, contract, statute, rule or regulation to which it is a party or by which it is bound which would materially limit or affect the performance of its duties thereunder; and (viii) will promptly notify UBS Global AM of the occurrence of any event that would disqualify the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act or otherwise.
(b) The Sub-Adviser has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act and will provide UBS Global AM and the Board with a copy of such code of ethics, together with evidence of its adoption. Within fifteen days of the end of the last calendar quarter of each year that this Agreement is in effect, a duly authorized officer of the Sub-Adviser shall certify to UBS Global AM that the Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous year and that there has been no material violation of the Sub-Adviser’s 's code of ethics or, if such a violation has occurred, that appropriate action was taken in response to such violation. Upon the written request of UBS Global AM, the Sub-Adviser shall permit UBS Global AM, its employees or its agents to examine the reports required to be made by the Sub-Adviser pursuant to Rule 17j-1 and all other records relevant to the Sub-Adviser’s 's code of ethics.
(c) The Sub-Adviser has provided UBS Global AM with a copy of its Form ADV, as most recently filed with the Securities and Exchange Commission (“"SEC”"), and promptly will furnish a copy of all amendments to UBS Global AM at least annually.
(d) The Sub-Adviser will notify UBS Global AM of any change of control of the Sub-Adviser, including any change of its general partners or 25% shareholders or 25% limited partners, as applicable, and any changes in the key personnel who are either the portfolio manager(s) of the Portfolio or senior management of the Sub-Adviser, in each case prior to or promptly after such change.
Appears in 2 contracts
Sources: Sub Advisory Agreement (Ubs Pace Select Advisors Trust), Sub Advisory Agreement (Ubs Pace Select Advisors Trust)
Representations of the Parties. The Sub-Adviser represents, warrants, and agrees as follows:
(a) The Sub-Adviser (i) is duly formed and validly existing in accordance with the laws of the State of Delaware; (ii) 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; (iii) is not prohibited by the 1940 Act or the Advisers Act from performing the services contemplated by this Agreement; (iv) has met, and will seek to continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency, necessary to be met in order to perform the services contemplated by this Agreement; (v) has the capacity and authority to enter into this Agreement (vi) this Agreement has been duly authorized, executed and delivered on its behalf and is a valid and binding agreement enforceable in accordance with its terms;(vii) entry into this Agreement will not breach or cause to be breached any undertaking, agreement, contract, statute, rule or regulation to which it is a party or by which it is bound which would materially limit or affect the performance of its duties thereunder; and (viii) will promptly notify UBS Global AM of the occurrence of any event that would disqualify the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act or otherwise.
(b) The Sub-Adviser has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act and will provide UBS Global AM and the Board with a copy of such code of ethics, together with evidence of its adoption. Within fifteen days of the end of the last calendar quarter of each year that this Agreement is in effect, a duly authorized officer of the Sub-Adviser shall certify to UBS Global AM that the Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous year and that there has been no material violation of the Sub-Adviser’s 's code of ethics or, if such a violation has occurred, that appropriate action was taken in response to such violation. Upon the written request of UBS Global AM, the Sub-Adviser shall permit UBS Global AM, its employees or its agents to examine the reports required to be made by the Sub-Adviser pursuant to Rule 17j-1 and all other records relevant to the Sub-Adviser’s 's code of ethics.
(c) The Sub-Adviser has provided UBS Global AM with a copy of its Form ADV, as most recently filed with the Securities and Exchange Commission (“"SEC”"), and promptly will furnish a copy of all amendments to UBS Global AM at least annually.
(d) The Sub-Adviser will notify UBS Global AM of any change of control of the Sub-Adviser, including any change of its general partners or 25% shareholders or 25% limited partners, as applicable, and any changes in the key personnel who are either the portfolio manager(s) of the Portfolio or senior management of the Sub-Adviser, in each case prior to or promptly after such change.
(e) UBS Global AM and the Sub-Adviser agree that neither of them nor any of their affiliates, will in any way refer directly or indirectly to their relationship with one another or any of their respective affiliates in offering, marketing or other promotional materials without the express written consent of the other, which consent will be promptly provided and not unreasonably withheld.
(f) UBS Global AM represents and warrants that (i) the Trust is a trust duly formed and validly existing under the laws of the State of Delaware; (ii) UBS Global AM has the capacity and authority to enter into this Agreement; (iii) UBS Global AM 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; (iv) it will promptly notify Sub-Adviser of the occurrence of any event that would disqualify UBS Global AM from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act; (v) this Agreement has been duly authorized, executed and delivered on behalf of UBS Global AM and is a valid and binding agreement enforceable in accordance with its terms; and (vi) entry into this Agreement will not breach or cause to be breached any undertaking, agreement, contract, statute, rule or regulation to which UBS Global AM is a party or by which it is bound which would materially limit or affect the performance of its duties thereunder.
Appears in 1 contract
Sources: Sub Advisory Agreement (Pace Select Advisors Trust)
Representations of the Parties. The Sub-Adviser represents, warrants, (a) Each of the Junior Noteholders and agrees the Portfolio Manager represents and warrants as followsto itself to the other parties hereto as of the date of this Agreement and each Draw Date that:
(a) The Sub-Adviser (i) it is duly formed and organized, validly existing and in accordance with good standing under the laws of the State of Delaware; jurisdiction in which it is organized;
(ii) is registered as an investment adviser under the Advisers Act it has full power and will continue authority and has taken all action necessary to be so registered for so long as execute and deliver this Agreement remains in effect; and to fulfill its obligations hereunder and to consummate the transactions hereby;
(iii) is the making and performance by it of this Agreement does not prohibited by the 1940 Act or the Advisers Act from performing the services contemplated by this Agreement; (iv) has met, and will seek to continue to meet for so long as this Agreement remains in effectnot violate any law or regulation of the jurisdiction under which it exists, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency, necessary to be met in order to perform the services contemplated by this Agreement; (v) has the capacity and authority to enter into this Agreement (vi) this Agreement has been duly authorized, executed and delivered on its behalf and is a valid and binding agreement enforceable in accordance with its terms;(vii) entry into this Agreement will not breach or cause to be breached any undertaking, agreement, contract, statute, rule law or regulation applicable to it, any other agreement to which it is a party or by which it is bound or to which would materially limit or affect the performance any of its duties thereunderassets is subject, or any provisions of its charter or by-laws;
(iv) this Agreement has been duly executed and delivered by it and, when duly executed by each other party hereto, constitutes the legal, valid and binding obligation, enforceable against it in accordance with its terms (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws of general applicability affecting the enforcement of creditors’ rights generally and by a court’s discretion in relation to equitable remedies);
(v) all approvals, authorizations and other actions by, or filings with, any governmental authority necessary for, the validity or enforceability of its obligations under this Agreement have been obtained; and and
(viiivi) will promptly notify UBS Global AM of the occurrence of it is not, nor shall it be deemed to be, a fiduciary of, or otherwise have a trust relationship with, any event that would disqualify the Sub-Adviser from serving other party in connection with this Agreement or any transaction contemplated herein and, except as an investment adviser of an investment company pursuant expressly set forth herein, shall have no obligation, duty or responsibility to Section 9(a) of the 1940 Act or otherwisesuch other party.
(b) The Sub-Adviser has adopted Each of the Junior Noteholders and the Senior Commitment Party represents and warrants as of the date of this Agreement and (for so long as it holds Junior Notes or the Senior Note, as applicable) as of each Draw Date, and the initial Senior Noteholder represents and warrants as of the date of this Agreement and any transferee of a written code Senior Note or a Junior Note represents and warrants as of ethics complying the transfer date and as of each Draw Date, in each case to the Issuer, to each Credit Suisse Party and to the Portfolio Manager that:
(i) it is (x) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) that is also a “qualified purchaser” for purposes of the Investment Company Act, and it is acquiring the Notes for its own account or (y) in the case of the Junior Notes, a person that is not a “U.S. person” as defined in Regulation S under the Securities Act, and is acquiring the Junior Notes in an offshore transaction (as defined in Regulation S) in reliance on the exemption from Securities Act registration provided by Regulation S;
(ii) it understands that: (A) subject to the terms of this Agreement, proceeds from the issuance of the Notes will be invested in Collateral Debt Obligations; (B) if the Warehouse Collateral is liquidated as a result of a Liquidation Event, such liquidation may take place under market conditions that are not advantageous to the Issuer, and as a result of any such liquidation, the Noteholders may suffer a loss, which loss could equal its entire investment in the applicable Notes; (C) all payments to the Junior Noteholders are subordinate to payments to the Senior Noteholder pursuant to the Priority of Payments and (D) all payments to it and any payments upon redemption of the Notes are payable only in accordance with the requirements Priority of Rule 17j-1 under Payments to the 1940 Act extent the Issuer has sufficient Available Funds.
(iii) it has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Collateral Debt Obligations and is able to bear the economic risk of such investment;
(iv) it understands that an investment in the Collateral Debt Obligations involves certain risks, including the risk that the CLO Transaction will provide UBS Global AM not be completed and the Board risk of loss of all or a substantial part of its investment; and it has had access to such financial and other information concerning the Issuer, the Portfolio Manager, the Collateral Debt Obligations and the credit markets as it deemed necessary or appropriate in order to make an informed decision with respect to its entering into this Agreement;
(v) it has made its own independent investigation in connection with its decision to purchase Notes and is not relying on any advice, counsel or representations (whether written or oral) of the Issuer, any Credit Suisse Party (in the case of the Junior Noteholders), any Portfolio Manager Party (in the case of the Junior Noteholders, the Senior Commitment Party and initial Senior Noteholder) or any other person in connection therewith;
(vi) it is not a member of the public in the Cayman Islands;
(vii) it is not purchasing the Notes with a copy of such code of ethicsview to the resale, together with evidence of its adoption. Within fifteen days of the end of the last calendar quarter of each year that this Agreement is distribution or other disposition thereof in effect, a duly authorized officer of the Sub-Adviser shall certify to UBS Global AM that the Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous year and that there has been no material violation of the SubSecurities Act.
(viii) (A) it is not, and is not acting on behalf of, a Benefit Plan Investor and (B) if it is a governmental, church, non-AdviserU.S. plan or other plan, (x) it is not and, for so long as it holds such Notes or interest therein will not be, subject to Similar Law and (y) its acquisition, holding and disposition of such Notes will not constitute or result in a non-exempt violation of any Other Plan Law;
(ix) in the case of the Senior Commitment Party and the initial Senior Noteholder, it understands that the Senior Note(s) are not transferable except to a transferee that makes all of the representations and warranties contained in a Transfer Certificate or following receipt by the Issuer of an opinion of nationally recognized counsel acceptable to the Issuer to the effect that, following such transfer, the Senior Note(s) will continue to be exempt from the registration requirements of the Securities Act and that neither the Issuer nor the pool of assets owned by the Issuer will be required to register as an investment company under the Investment Company Act;
(x) it understands that the Issuer’s code sole source of ethics funds for payment of all amounts due under the Note and this Agreement shall be the Warehouse Collateral, and, upon application of the proceeds of the Warehouse Collateral in accordance with the terms and under the circumstances described in this Agreement (including the Priority of Payments), no recourse shall be had against the Issuer for any amounts still outstanding by the Issuer and all obligations of, and any claims against, the Issuer arising from the Note and this Agreement or any transactions contemplated hereby shall be extinguished and shall not thereafter revive;
(xi) it understands it may not, prior to the date that is one year (or, if longer, the then applicable preference period) plus one day after termination of this Agreement or, in the event that CLO Securities are issued in respect of the CLO Transaction, the payment in full of all such CLO Securities institute against, or join any other individual or entity in instituting against the Issuer, any bankruptcy, reorganization, arrangement, winding-up, insolvency, moratorium or liquidation proceedings, or other proceedings under Cayman Islands bankruptcy laws, United States federal or state bankruptcy laws, or any similar laws;
(xii) in the case of the Junior Noteholders, it understands that the Junior Notes may not be transferred unless (x) such transfer is solely in respect of the Outstanding Junior Note Amount of a Junior Note, (y) such transfer is to (I) an affiliate (it being understood that for purposes of this clause (I) the term “affiliate” shall include all funds and accounts managed by NewStar Financial, Inc. or any of its affiliates) or (II) a Junior Noteholder identified as such in the Note Register as of the Effective Date or one of its affiliates and (z) the transferee makes all of the representations and warranties contained in a Transfer Certificate;
(xiii) in the case of the Junior Noteholders, upon becoming a holder of a Note and thereafter as required by law or as requested by the Issuer, it will provide the Issuer with a properly completed and signed Internal Revenue Service Form W-9 (or applicable successor form) in the case of a person that is a United States Person or the appropriate Internal Revenue Service Form W-8 (or applicable successor form) in the case of a person that is not a United States Person, in each case establishing that it is entitled to receive payments on the Notes free from any U.S. federal withholding tax;
(xiv) in the case of the Junior Noteholders, each holder of a Note that is not a United States Person will make, or by acquiring this Note or an interest in this Note will be deemed to make, a representation to the effect that (i) either (a) it is not a bank (or an entity affiliated with a bank) extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of section 881(c)(3)(A) of the Code), (b) it is a person that is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States, or (c) it has provided an Internal Revenue Service Form W-8ECI representing that all payments received or to be received by it from the Issuer are effectively connected with the conduct of a trade or business in the United States, and (ii) it is not purchasing this Note or an interest in this Note in order to reduce its U.S. federal income tax liability pursuant to a tax avoidance plan; and
(xv) in the case of the Junior Noteholders, it will (i) provide the Issuer (and any of its agents), with any correct, complete and accurate information that may be required for the Issuer to comply with FATCA and will take any other actions that the Issuer (or any of its agents) deems necessary to comply with FATCA and (ii) update any such information provided in clause (i) promptly upon learning that any such information previously provided has become obsolete or incorrect or is otherwise required. In the event the holder fails to provide such information, take such actions or update such information, (a) the Issuer (and any agent acting on its behalf) is authorized to withhold amounts otherwise distributable to the holder as compensation for any cost, loss or liability suffered as a result of such failure and (b) the Issuer (and any agent acting on its behalf) will have the right to compel the holder to sells its Notes or, if such holder does not sell its Notes within 10 Business Days after notice from the Issuer (or any agent acting on its behalf), to sell such Notes at a violation has occurredpublic or private sale called and conducted in any manner permitted by law, that appropriate action was taken in response and to remit the net proceeds of such violation. Upon the written request of UBS Global AM, the Sub-Adviser shall permit UBS Global AM, its employees or its agents to examine the reports required to be made sale (taking into account any taxes incurred by the Sub-Adviser pursuant to Rule 17j-1 and all other records relevant Issuer in connection with such sale) to the Sub-Adviser’s code of ethicsholder as payment in full for such Notes.
(c) The Sub-Adviser has provided UBS Global AM with a copy of Each Junior Noteholder represents and warrants to each Credit Suisse Party, and CS (in its Form ADVcapacities as Senior Commitment Party and initial Senior Noteholder) represents and warrants to each Junior Noteholder, as most recently filed of the date of this Agreement and as of each Draw Date that:
(i) no Credit Suisse Party has given the Junior Noteholders, and no Junior Noteholder has given CS (directly or indirectly through any other person) any assurance, guarantee or representation whatsoever as to the expected or projected success, profitability, return, performance, result, effect, consequence or benefit (including legal, regulatory, tax, financial, accounting or otherwise) of the Junior Notes;
(ii) it acknowledges that, other than as expressly set forth herein, it has no rights or recourse with respect to the Collateral Debt Obligations or against any Credit Suisse Party, any Junior Noteholder or the Issuer;
(iii) sales of Collateral Debt Obligations may result in Trading Losses that may reduce the amount payable on the Junior Notes under the Priority of Payments;
(iv) none of the Credit Suisse Parties has a fiduciary, advisory or agency relationship with the Securities Junior Noteholders or their affiliates in respect of any of the transactions contemplated by this Agreement, irrespective of whether any Credit Suisse Party has advised or is advising the Junior Noteholders (or their affiliates) on other matters and Exchange Commission it waives, to the fullest extent permitted by law, any claims it may have against the Credit Suisse Parties for breach of fiduciary duty or alleged breach of fiduciary duty in respect of any of the transactions contemplated by this Agreement and agrees that the Credit Suisse Parties shall have no liability (“SEC”whether direct or indirect) to the Junior Noteholders (or their affiliates) in respect of any such fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Junior Noteholders (or their affiliates), including directors, partners, equity holders, employees or creditors of the Junior Noteholders (or their affiliates);
(v) it has been advised that the Credit Suisse Parties are engaged in a broad range of transactions which may involve interests that differ from those of the Junior Noteholders (or their affiliates) and promptly will furnish a copy agrees that the Credit Suisse Parties have no obligation to disclose such interests and transactions to the Junior Noteholders (or their affiliates) by virtue of all amendments any fiduciary, advisory or agency relationship or otherwise;
(vi) the Senior Commitment Party may, in its sole discretion, decline to UBS Global AM at least annually.approve financing any Collateral Debt Obligations selected by the Portfolio Manager, and act in the interest of the Senior Commitment Party in exercising its rights and remedies under this Agreement; and
(vii) the Credit Suisse Parties are full service securities firms engaged in securities trading and brokerage activities, as well as the provision of investment banking and structuring services. In the ordinary course of their business, the Credit Suisse Parties may from time to time effect transactions for their own accounts or for the accounts of customers, and underwrite, act as placement agent for or hold positions in, securities or options on securities of the Portfolio Manager, its affiliates and obligors of the Collateral Debt Obligations, may act as selling institution with respect to participations that are Collateral Debt Obligations and may sell certain Collateral Debt Obligations to the Issuer and may buy certain Collateral Debt Obligations from the Issuer;
(d) The Sub-Adviser will notify UBS Global AM of any change of control Each of the Sub-Adviser, including any change Junior Noteholders represents and warrants as of its general partners or 25% shareholders or 25% limited partners, the date of this Agreement and (for so long as applicable, it holds Junior Notes) as of each Draw Date and any changes in the key personnel who are either the portfolio manager(s) transferee of a Junior Note represents and warrants as of the Portfolio or senior management transfer date and as of the Sub-Advisereach Draw Date, in each case prior to the Portfolio Manager that:
(i) it acknowledges that the Credit Suisse Parties and the Portfolio Manager have not given it any investment advice, credit information or promptly after opinion on whether such change.Junior Noteholder’s interest in the transactions hereunder are prudent;
(ii) it acknowledges that (A) the Credit Suisse Parties or the Portfolio Manager may have, and later may come into possession of, information with respect to the Collateral Debt Obligations, any obligor or any of its affiliates that is not known to such Junior Noteholder and that may be material to a decision to dispose of the Collateral Debt Obligations (“Junior Noteholder Excluded Information”), (B) a Collateral Debt Obligation may be disposed of hereunder notwithstanding such Junior Noteholder’s lack of knowledge of the Junior Noteholder Excluded Information and (C) none of the Credit Suisse Parties, nor the Portfolio Manager nor any of their respective affiliates shall have any liability to such Junior Noteholder, and such Junior Noteholder waives and releases any claims that it might have against the Credit Suisse Parties, the Portfolio Manager or any of their respective Affiliates, whether under applicable securities laws or otherwise, with respect to the nondisclosure of the Junior Noteholder Excluded Information in connection with the transactions contemplated hereby; provided, however, th
Appears in 1 contract
Representations of the Parties. The Sub-Adviser represents, warrants, and agrees as follows:
Each party to this Agreement hereby acknowledges that (a) The Sub-Adviser (i) is duly formed and validly existing in accordance with the laws of the State of Delaware; (ii) it is registered as an investment adviser advisor under the Investment Advisers Act of 1940, it will use its reasonable best efforts to maintain such registration, and it will continue promptly notify the other if it ceases to be so registered registered, if its registration is suspended for so long as this Agreement remains in effectany reason, or if it is notified by any regulatory organization or court of competent jurisdiction that it should show cause why its registration should not be suspended or terminated; (iiib) it has been duly incorporated and is not prohibited by validly existing and in good standing as a corporation under the 1940 Act or laws of its state of incorporation; (c) it has all requisite corporate power and authority under the Advisers Act from performing the services contemplated by laws of its state of incorporation and federal securities laws to execute, deliver and to perform its obligations under this Agreement; (ivd) has metall necessary corporate proceedings have been duly taken by it to authorize the execution, delivery and will seek to continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements performance of any regulatory or industry self-regulatory agency, necessary to be met in order to perform the services contemplated by this Agreement; and (ve) has the capacity and authority to enter into this Agreement (vi) this Agreement has shares of the Trust have been duly authorized, executed and delivered on its behalf and is a valid and binding agreement enforceable in accordance with its terms;(vii) entry into this Agreement will not breach or cause to be breached any undertaking, agreement, contract, statute, rule or regulation to which it is a party or by which it is bound which would materially limit or affect the performance of its duties thereunder; and (viii) will promptly notify UBS Global AM of the occurrence of any event that would disqualify the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act or otherwise.
(b) The Sub-Adviser has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act and will provide UBS Global AM and the Board with a copy of such code of ethics, together with evidence of its adoption. Within fifteen days of the end of the last calendar quarter of each year that this Agreement is in effect, a duly authorized officer of the Sub-Adviser shall certify to UBS Global AM that the Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous year and that there has been no material violation of the Sub-Adviser’s code of ethics or, if such a violation has occurred, that appropriate action was taken in response to such violation. Upon the written request of UBS Global AM, the Sub-Adviser shall permit UBS Global AM, its employees or its agents to examine the reports required to be made by the Sub-Adviser pursuant to Rule 17j-1 and all other records relevant to the Sub-Adviser’s code of ethics.
(c) The Sub-Adviser has provided UBS Global AM with a copy of its Form ADV, as most recently filed registered with the Securities and Exchange Commission (“SEC”), and promptly will furnish a copy of all amendments to UBS Global AM at least annually.
(d) the extent required by applicable law. The Sub-Adviser Advisor further represents that it has adopted a written Code of Ethics in compliance with Rule 17j-1(b) of the ICA. The Sub-Advisor shall be subject to such Code of Ethics and shall not be subject to any other Code of Ethics, including the Investment Manager's Code of Ethics, unless specifically adopted by the Sub-Advisor. The Investment Manager acknowledges and agrees that the Sub-Advisor makes no representation or warranty, express or implied, that any level of performance or investment results will notify UBS Global AM of be achieved by the Portfolio or that the Portfolio will perform comparably with any change of control standard or index, including other clients of the Sub-AdviserAdvisor, including any change of its general partners whether public or 25% shareholders or 25% limited partners, as applicable, and any changes in the key personnel who are either the portfolio manager(s) of the Portfolio or senior management of the Sub-Adviser, in each case prior to or promptly after such changeprivate.
Appears in 1 contract
Representations of the Parties. The Sub-Adviser represents, warrants, Each party hereto hereby further represents and agrees as follows:
(a) The Sub-Adviser warrants to the other that: (i) is duly formed and validly existing in accordance with the laws of the State of Delaware; (ii) it is registered as an investment adviser under the Advisers Act and will continue is registered or licensed as an investment adviser under the laws of all jurisdictions in which its activities require it to be so registered for so long as or licensed; and (ii) it will use its reasonable best efforts to maintain each such registration or license in effect at all times during the term of this Agreement remains in effectAgreement; and (iii) it will promptly notify the other if it ceases to be so registered, if its registration is suspended for any reason, or if it is notified by any regulatory organization or court of competent jurisdiction that it should show cause why its registration should not prohibited by the 1940 Act be suspended or the Advisers Act from performing the services contemplated by this Agreementterminated; and (iv) has met, and will seek to continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency, necessary to be met in order to perform the services contemplated by this Agreement; (v) has the capacity and authority it is duly authorized to enter into this Agreement (vi) this Agreement has been duly authorized, executed and delivered on to perform its behalf obligations hereunder. The Investment Manager further represents and is a valid and binding agreement enforceable in accordance with its terms;(vii) entry into this Agreement will not breach or cause warrants to be breached any undertaking, agreement, contract, statute, rule or regulation to which it is a party or by which it is bound which would materially limit or affect the performance of its duties thereunder; and (viii) will promptly notify UBS Global AM of the occurrence of any event that would disqualify the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(athat (i) of the 1940 Act or otherwise.
(b) The Sub-Adviser has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act and will provide UBS Global AM and the Board with a copy of such code of ethics, together with evidence of its adoption. Within fifteen days of the end of the last calendar quarter of each year that this Agreement is in effect, a duly authorized officer appointment of the Sub-Adviser shall certify by the Investment Manager has been duly authorized and (ii) it has acted and will continue to UBS Global AM act in connection with the transactions contemplated hereby, and the transactions contemplated hereby are, in conformity with the ICA, the Trust's governing documents and other applicable law. Sub-Adviser represents that it has the right to use the name and ▇▇▇▇ "Kinetics." The Investment Manager agrees and acknowledges that Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous year such right and that there has been no material violation any and all use of any designation comprised in whole or in part of Kinetics ("Kinetics ▇▇▇▇(s)") under this Agreement, except as otherwise provided herein, shall inure to the benefit of Sub-Adviser’s code . Upon termination of ethics orthis Agreement for any reason, if such a violation has occurredthe Investment Manager shall cease, and shall use its best efforts to cause the Trust to cease, all use of any Kinetics ▇▇▇▇(s) as soon as reasonably practicable, provided however, that appropriate action was taken in response the Trust and the Investment Manager are permitted to such violationuse the Kinetics ▇▇▇▇(s) as long as required by law, rule or regulation and to the extent necessary to refer to or illustrate the historical performance of the Portfolio. Upon the written request of UBS Global AM, the Sub-Adviser shall permit UBS Global AMacknowledges and agrees that it will not use any designation comprised in whole or in part of the names "American Skandia Trust" or "American Skandia Investment Services, Incorporated" on its employees own behalf, or its agents in relation to examine the reports required to be made by the any investment company for which Sub-Adviser pursuant to Rule 17j-1 or its successors and all other records relevant to any subsidiary or affiliate thereof acts as investment adviser, without the Sub-Adviser’s code express written permission of ethics.
(c) The the Trust and the Investment Manager, respectively, except that Sub-Adviser has provided UBS Global AM with may state that it acts as a copy of its Form ADV, as most recently filed with sub-adviser to the Securities Trust and Exchange Commission (“SEC”), and promptly will furnish a copy of all amendments to UBS Global AM at least annuallythe Investment Manager.
(d) The Sub-Adviser will notify UBS Global AM of any change of control of the Sub-Adviser, including any change of its general partners or 25% shareholders or 25% limited partners, as applicable, and any changes in the key personnel who are either the portfolio manager(s) of the Portfolio or senior management of the Sub-Adviser, in each case prior to or promptly after such change.
Appears in 1 contract
Representations of the Parties. The Sub-Adviser represents, warrants, and agrees as follows1. APN represents to the End User that:
(a) The Sub-Adviser (i) is duly formed and validly existing in accordance with the laws of the State of Delaware; entitled to execute this Agreement;
(ii) is registered as an investment adviser under the Advisers Act and will continue entitled to be so registered for so long as this Agreement remains in effect; all relevant proprietary copyrights to APN Apps;
(iii) is not prohibited by the 1940 Act or the Advisers Act from performing the services contemplated by this Agreement; entitled to all relevant derivative copyrights to APN Apps;
(iv) has met, is entitled to execute and to allow others to execute relevant derivative copyrights to APN Apps;
(v) use of APN Apps by the End User will not infringe third party’s intellectual property rights and will seek not
2. The End User represents to continue APN that:
(i) has full legal capacity and authority to meet for so long as execute this Agreement remains in effectAgreement;
(ii) has all means (e.g. proper IT Infrastructure, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency, necessary to be met in order qualified staff etc.) required to perform all duties indicated in this ▇▇▇▇;
(iii) conducts business activity through a form of business organization recognized by law of country, where such business organization is registered;
(iv) the services contemplated by this Agreement; country where business organization of the End User is registered is situated inside the Territory;
(v) has obtained and maintains all permissions, decisions, consents and/or licenses, necessary to execute and perform this Agreement and End User’s obligations resulting hereof;
(vi) execution and/or performance of this Agreement will not interfere or infringe or cause a breach any of End User’s binding obligations, whether resulting from an agreement or binding provisions of law;
(vii) will use APN Apps for the capacity purposes permitted hereunder;
(viii) the use of APN Apps and authority performance of this Agreement will comply with binding provisions of law;
(ix) the use of APN Apps will not infringe APN’s or third party’s rights, in particular intellectual property rights, including derivative copyrights to APN Apps;
(x) has become familiarized and accepts without any reservation this ▇▇▇▇ and APN Promise Anti- Corruption Policy;
(xi) has become familiarized with APN Apps covered by the Order (prior to submitting the Order), their purpose, functions and functionalities and accepts them without any reservation, as consistent with End User’s intended purpose of their use;
(xii) APN Apps indicated in the Order comply with End User’s needs.
3. If this Agreement is executed by an individual on behalf of the End User being any form of legal entity, such an individual warrants and represents to APN, that is duly authorized to enter into this Agreement on behalf of the End User. If the above-mentioned statement turns out to be false, misleading or invalid, such an individual shall be fully responsible to APN for all obligations (viincluding payment obligation) resulting form this Agreement has been duly authorized, executed and delivered on its behalf and is a valid and binding agreement enforceable in accordance with its terms;(vii) entry into this Agreement will not breach or cause to be breached any undertaking, agreement, contract, statute, rule or regulation to which it is a party or by which it is bound which would materially limit or affect and/or the performance of its duties thereunder; and (viii) will promptly notify UBS Global AM of the occurrence of any event that would disqualify the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act or otherwiseOrder.
(b) The Sub-Adviser has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act and will provide UBS Global AM and the Board with a copy of such code of ethics, together with evidence of its adoption. Within fifteen days of the end of the last calendar quarter of each year that this Agreement is in effect, a duly authorized officer of the Sub-Adviser shall certify to UBS Global AM that the Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous year and that there has been no material violation of the Sub-Adviser’s code of ethics or, if such a violation has occurred, that appropriate action was taken in response to such violation. Upon the written request of UBS Global AM, the Sub-Adviser shall permit UBS Global AM, its employees or its agents to examine the reports required to be made by the Sub-Adviser pursuant to Rule 17j-1 and all other records relevant to the Sub-Adviser’s code of ethics.
(c) The Sub-Adviser has provided UBS Global AM with a copy of its Form ADV, as most recently filed with the Securities and Exchange Commission (“SEC”), and promptly will furnish a copy of all amendments to UBS Global AM at least annually.
(d) The Sub-Adviser will notify UBS Global AM of any change of control of the Sub-Adviser, including any change of its general partners or 25% shareholders or 25% limited partners, as applicable, and any changes in the key personnel who are either the portfolio manager(s) of the Portfolio or senior management of the Sub-Adviser, in each case prior to or promptly after such change.
Appears in 1 contract
Sources: Software License Agreement
Representations of the Parties. The Sub-Adviser represents, warrants, 3.1 Each Party (on its own account and agrees as followson behalf of each successor) declares and warrants to the other Party (for its own benefit and that of its successors) that:
(a) The Sub-Adviser (i) is duly formed it has been lawfully incorporated and validly existing operates in accordance with the laws of relevant legislation and the State of Delaware; (ii) is law at its 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; (iii) is not prohibited by the 1940 Act or the Advisers Act from performing the services contemplated by this Agreement; (iv) has met, and will seek to continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency, necessary to be met in order to perform the services contemplated by this Agreement; (v) has the capacity and authority to enter into this Agreement (vi) this Agreement has been duly authorized, executed and delivered on its behalf and is a valid and binding agreement enforceable in accordance with its terms;(vii) entry into this Agreement will not breach or cause to be breached any undertaking, agreement, contract, statute, rule or regulation to which it is a party or by which it is bound which would materially limit or affect the performance of its duties thereunder; and (viii) will promptly notify UBS Global AM of the occurrence of any event that would disqualify the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act or otherwise.offices;
(b) The Sub-Adviser it has adopted a written code of ethics complying with full power and has obtained all necessary corporate or other approvals in order to:
(i) conclude this TLS Agreement and any agreement or document relating to it;
(ii) fulfil the requirements of Rule 17j-1 obligations assumed under the 1940 Act and will provide UBS Global AM and the Board with a copy of such code of ethics, together with evidence of its adoption. Within fifteen days of the end of the last calendar quarter of each year that this Agreement is in effect, a duly authorized officer of the Sub-Adviser shall certify to UBS Global AM that the Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous year and that there has been no material violation of the Sub-Adviser’s code of ethics or, if such a violation has occurred, that appropriate action was taken in response to such violation. Upon the written request of UBS Global AM, the Sub-Adviser shall permit UBS Global AM, its employees or its agents to examine the reports required to be made by the Sub-Adviser pursuant to Rule 17j-1 and all other records relevant to the Sub-Adviser’s code of ethicsTLS Agreement.
(c) The Sub-Adviser has provided UBS Global AM with a copy conclusion and implementation of this TLS Agreement does not infringe any provision of law governing its operation, any provision of its Form ADVArticles of Association, as most recently filed with any court order or decision related to it, nor the Securities and Exchange Commission (“SEC”), and promptly will furnish a copy terms of all amendments to UBS Global AM at least annually.any contract bound by it; and
(d) the obligations assumed under the TLS Agreement are lawful, valid, effective and binding obligations of said Party, enforceable and executable against it in accordance with their terms.
3.2 The Sub-Adviser TLS User declares and warrants to the Operator that:
(a) it has or will notify UBS Global AM have at any critical time the full and irrevocable right to receive the quantity of any change of control LNG requested via the TLS Timeslot Application from the LNG TL Facility;
(b) it holds all permits and approvals required by the applicable legislation in accordance with the Regulations and Manuals for loading LNG Trucks at the LNG TL Facility and shall renew and maintain them in effect while the TLS Agreement is in effect;
(c) it shall comply in all material respects with each legislation that is in force which governs the provision of the SubTL-AdviserService, including in particular that which relates to the safety of the facilities, equipment and staff involved with its provision, as well as the environmental protection; and
(d) unless if otherwise notified in writing and in good time to the Operator, any change person representing the TLS User in its transactions with the Operator in the context hereof, including members of its general partners staff who from time to time acquire access to the Information System on its behalf and the LNG Truck drivers used to receive the service, shall have received special authorization by it to enter into any transaction or 25% shareholders or 25% limited partners, as applicable, and any changes act specified in the key personnel who are either the portfolio manager(s) context of the Portfolio TLS Agreement or senior management in accordance with the Network Code and the applicable legislation, without restriction as to the level of the Sub-Adviser, in each case prior to or promptly after such changefinancial obligations assumed.
Appears in 1 contract
Sources: Framework Agreement
Representations of the Parties. The Sub-Adviser represents, warrants, Each party hereto hereby further represents and agrees as follows:
(a) The Sub-Adviser warrants to the other that: (i) is duly formed and validly existing in accordance with the laws of the State of Delaware; (ii) it is registered as an investment adviser under the Advisers Act and will continue is registered or licensed as an investment adviser under the laws of all jurisdictions in which its activities require it to be so registered for so long as or licensed; and (ii) it will use its reasonable best efforts to maintain each such registration or license in effect at all times during the term of this Agreement remains in effectAgreement; and (iii) it will promptly notify the other if it ceases to be so registered, if its registration is suspended for any reason, or if it is notified by any regulatory organization or court of competent jurisdiction that it should show cause why its registration should not prohibited by the 1940 Act be suspended or the Advisers Act from performing the services contemplated by this Agreementterminated; and (iv) has met, and will seek to continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency, necessary to be met in order to perform the services contemplated by this Agreement; (v) has the capacity and authority it is duly authorized to enter into this Agreement (viand to perform its obligations hereunder. The Sub-Adviser further represents that it has adopted a written Code of Ethics in compliance with Rule 17j-1(b) this Agreement has been duly authorized, executed and delivered on its behalf and is a valid and binding agreement enforceable in accordance with its terms;(vii) entry into this Agreement will not breach or cause to be breached any undertaking, agreement, contract, statute, rule or regulation to which it is a party or by which it is bound which would materially limit or affect the performance of its duties thereunder; and (viii) will promptly notify UBS Global AM of the occurrence ICA. The Sub-Adviser shall be subject to such Code of Ethics and shall not be subject to any event that would disqualify other Code of Ethics, including the Investment Manager's Code of Ethics, unless specifically adopted by the Sub-Adviser. The Investment Manager further represents and warrants to the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(athat (i) of the 1940 Act or otherwise.
(b) The Sub-Adviser has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act and will provide UBS Global AM and the Board with a copy of such code of ethics, together with evidence of its adoption. Within fifteen days of the end of the last calendar quarter of each year that this Agreement is in effect, a duly authorized officer appointment of the Sub-Adviser shall certify by the Investment Manager has been duly authorized and (ii) it has acted and will continue to UBS Global AM act in connection with the transactions contemplated hereby, and the transactions contemplated hereby are, in conformity with the ICA, the Trust's governing documents and other applicable law. Sub-Adviser represents that it has the right to use the name and ▇▇▇▇ "▇▇▇▇▇▇▇." The Investment Manager agrees and acknowledges that Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous year such right and that there has been no material violation any and all use of any designation comprised in whole or in part of ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇ ▇▇▇▇(s)") under this Agreement, except as otherwise provided herein, shall inure to the benefit of Sub-Adviser’s code . Upon termination of ethics orthis Agreement for any reason, if such a violation has occurredthe Investment Manager shall cease, and shall use its best efforts to cause the Trust to cease, all use of any ▇▇▇▇▇▇▇ ▇▇▇▇(s) as soon as reasonably practicable, provided however, that appropriate action was taken in response the Trust and the Investment Manager are permitted to such violationuse the ▇▇▇▇▇▇▇ ▇▇▇▇(s) as long as required by law, rule or regulation and to the extent necessary to refer to or illustrate the historical performance of the Portfolio. Upon the written request of UBS Global AM, the Sub-Adviser shall permit UBS Global AMacknowledges and agrees that it will not use any designation comprised in whole or in part of the names "American Skandia Trust" or "American Skandia Investment Services, Incorporated" on its employees own behalf, or its agents in relation to examine the reports required to be made by the any investment company for which Sub-Adviser pursuant to Rule 17j-1 or its successors and all other records relevant to any subsidiary or affiliate thereof acts as investment adviser, without the Sub-Adviser’s code express written permission of ethics.
(c) The the Trust and the Investment Manager, respectively, except that Sub-Adviser has provided UBS Global AM with may state that it acts as a copy of its Form ADV, as most recently filed with sub-adviser to the Securities Trust and Exchange Commission (“SEC”), and promptly will furnish a copy of all amendments to UBS Global AM at least annuallythe Investment Manager.
(d) The Sub-Adviser will notify UBS Global AM of any change of control of the Sub-Adviser, including any change of its general partners or 25% shareholders or 25% limited partners, as applicable, and any changes in the key personnel who are either the portfolio manager(s) of the Portfolio or senior management of the Sub-Adviser, in each case prior to or promptly after such change.
Appears in 1 contract
Representations of the Parties. The Sub-Adviser (a) Executive hereby represents, warrants, covenants and agrees as follows:
(a) The Sub-Adviser (i) is duly formed and validly existing in accordance with the laws of the State of Delaware; (ii) 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; (iii) is not prohibited by the 1940 Act or the Advisers Act from performing the services contemplated by this Agreement; (iv) has met, and will seek to continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency, necessary to be met in order to perform the services contemplated by this Agreement; (v) Executive has the capacity and authority right to enter into this Agreement (vi) Agreement, that he is not a party to any agreement or understanding, oral or written, which would prohibit performance of his obligations under this Agreement has been duly authorizedAgreement, executed and delivered on its behalf and is a valid and binding agreement enforceable in accordance with its terms;(vii) entry into this Agreement that he will not breach or cause to be breached any undertaking, agreement, contract, statute, rule or regulation to which it is a party or by which it is bound which would materially limit or affect use in the performance of its duties thereunder; his obligations hereunder any proprietary information of any other party which he is legally prohibited from using.
(ii) Executive is acquiring the Shares being issued to him pursuant to this Agreement for his own account and (viii) will promptly notify UBS Global AM not with a view to or for sale or distribution thereof. Executive understands that the Shares are restricted securities and he understands the meaning of the occurrence term “restricted securities.” Executive further represents that he is an accredited investor within the meaning of Rule 501 of the Securities and Exchange Commission under the Securities Act of 1933, as amended, that he understands the meaning of the term “accredited investor,” and that he was not solicited by publication of any event that would disqualify advertisement in connection with the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) receipt of the 1940 Act or otherwiseShares and that he has consulted tax counsel as needed regarding the Shares.
(iii) Executive will not transfer any Shares except in compliance with all applicable federal and state securities laws and regulations, and, in such connection, the Company may request an opinion of counsel reasonably acceptable to the Company as to the availability of any exemption.
(b) The Sub-Adviser Executive further represents that, during the past five years:
(i) No petition has adopted been filed under the federal bankruptcy laws or any state insolvency law by or against, or a written code receiver, fiscal agent or similar officer has been appointed by a court for his business or property, or any partnership in which he was a general partner at or within two years before the time of ethics complying such filing, or any corporation or business association of which he was an executive officer at or within two years before the time of such filing;
(ii) Executive has not been convicted in a criminal proceeding and is not the subject of a pending criminal proceeding (excluding traffic violations and other minor offenses);
(iii) Executive has not been the subject of any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining himfrom, or otherwise limiting, the following activities:
(A) Acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission, or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with such activity;
(B) Engaging in any type of business practice; or
(C) Engaging in any activity in connection with the requirements purchase or sale of Rule 17j-1 under any security or commodity or in connection with any violation of federal or state securities laws or federal commodities laws;
(iv) Executive has not been the 1940 Act and will provide UBS Global AM subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any federal or state authority barring, suspending or otherwise limiting, for more than 60 days, his right to engage in any activity described in Section 4(b)(iii)(A) of this Agreement, or to be associated with persons engaged in any such activity;
(v) Executive has not been found by a court of competent jurisdiction in a civil action or by the SEC to have violated any federal or state securities law, and the Board with a copy of judgment in such code of ethics, together with evidence of its adoption. Within fifteen days of the end of the last calendar quarter of each year that this Agreement is in effect, a duly authorized officer of the Sub-Adviser shall certify to UBS Global AM that the Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous year and that there has been no material violation of the Sub-Adviser’s code of ethics or, if such a violation has occurred, that appropriate civil action was taken in response to such violation. Upon the written request of UBS Global AM, the Sub-Adviser shall permit UBS Global AM, its employees or its agents to examine the reports required to be made finding by the Sub-Adviser pursuant SEC has not been subsequently reversed, suspended, or vacated; and
(vi) Executive has not been found by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to Rule 17j-1 have violated any Federal commodities law, and all other records relevant to the Sub-Adviser’s code of ethicsjudgment in such civil action or finding by the Commodity Futures Trading Commission has not been subsequently reversed, suspended or vacated.
(c) The Sub-Adviser Company represents, warrants and agrees that it has provided UBS Global AM with a copy of full power and authority to execute and deliver this Agreement and perform its Form ADV, as most recently filed with the Securities and Exchange Commission (“SEC”), and promptly will furnish a copy of all amendments to UBS Global AM at least annuallyobligations hereunder.
(d) The Sub-Adviser will notify UBS Global AM of any change of control of the Sub-Adviser, including any change of its general partners or 25% shareholders or 25% limited partners, as applicable, and any changes in the key personnel who are either the portfolio manager(s) of the Portfolio or senior management of the Sub-Adviser, in each case prior to or promptly after such change.
Appears in 1 contract
Sources: Employment Agreement (Cleantech Solutions International, Inc.,)
Representations of the Parties. The Sub-Adviser Parties hereby make the following representations and warranties, which shall be repeated continuously until the later of the termination of this Agreement or the repayment in full of all amounts owed to State Street under any Securities Loan under this Agreement or any Collateral Documents:
9.1 Each Party hereto represents and warrants that (a) it has the power and authority to execute and deliver this Agreement and to enter into the Securities Loans contemplated hereby and to perform its obligations expressly set forth or contemplated hereunder, (b) it has taken all necessary action to authorize such execution, delivery and performance and (c) this Agreement constitutes a legal, valid, and binding obligation enforceable against such party.
9.2 State Street represents and warrants (a) that it is a trust company duly organized and validly existing under the laws of The Commonwealth of Massachusetts and (b) that it has, or will have at the time of delivery, the authority to deliver the Borrowed Securities subject to the terms and conditions hereof.
9.3 The Borrower represents and warrants that (a) it is an entity duly organized and validly existing under the laws of the state of its organization, (b) it is in compliance in all material respects with all laws, regulations and supervisory directives applicable to the Borrower, (c) it has, or will have at the time of delivery or identification or designation of any Securities Loan Collateral, the right to grant a security interest therein in accordance with the terms and conditions hereof, (d) it has the right to grant a security interest in the Custodial Collateral in accordance with the terms and conditions hereof and (e) it is borrowing the Borrowed Securities hereunder solely for the purposes of making delivery of such Borrowed Securities to cover short sales entered into by the Borrower.
9.4 Each Party hereto represents, warrantswarrants and covenants that the execution, delivery and performance by it of this Agreement and each Securities Loan hereunder will at all times comply with all Applicable Law.
9.5 The Borrower further represents and warrants that the Borrower has not relied on State Street or any of its Affiliates for investment, financial, legal or other advice with respect to the Securities Loans and the Borrower is making its independent judgment or is relying upon External Managers or third party advisers with respect to the Securities Loans, and neither State Street nor any of its Affiliates are acting as a fiduciary, advisor or agent for the Borrower with respect to any of the Securities Loans.
9.6 Each Party hereto represents and warrants that it has made its own determination as to the tax treatment of any transfers made with respect to this Agreement and any dividends, distributions, remuneration or other payments received or paid hereunder. If the Borrowed Securities consist of shares or other units of ownership of real property companies, trusts or other investment entities, the Borrower acknowledges that the tax treatment of any transfers of such Borrowed Securities and manufactured and other payments with respect to such Borrowed Securities may be materially and adversely different than transfers and payments with respect to loans of ordinary equity shares and the Borrower agrees that State Street shall be entitled to reimbursement for any costs or expenses suffered by State Street with respect to Securities Loans involving such Borrowed Securities.
9.7 The Borrower represents that any financial statements provided to State Street pursuant to Section 10.1 hereof are accurate and complete as follows:of the date of such report. Each request by the Borrower for a Securities Loan shall constitute a representation and warranty at such time that, as of the date of such request for a Securities Loan, the Borrower is in compliance with all Applicable Law and satisfies any regulatory capital requirements applicable to such entity.
9.8 The Borrower also makes the following additional representations and warranties and each request for a Securities Loan shall constitute a renewal of these representations and warranties at and as of the date of such request.
(a) The Sub-Adviser (i) is duly formed This Agreement and validly existing in accordance the Collateral Documents do not conflict with the laws of the State of Delaware; (ii) 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; (iii) is not prohibited by the 1940 Act any agreement or the Advisers Act from performing the services contemplated by this Agreement; (iv) has met, and will seek to continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency, necessary to be met in order to perform the services contemplated by this Agreement; (v) has the capacity and authority to enter into this Agreement (vi) this Agreement has been duly authorized, executed and delivered on its behalf and is a valid and binding agreement enforceable in accordance with its terms;(vii) entry into this Agreement will not breach or cause to be breached any undertaking, agreement, contract, statute, rule or regulation to which it is a party or obligation by which it the Borrower is bound which would materially limit or affect the performance of its duties thereunder; and (viii) will promptly notify UBS Global AM of the occurrence of any event that would disqualify the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act or otherwisebound.
(b) The Sub-Adviser has adopted a written code of ethics complying with There is no lawsuit, judicial or administrative proceeding, tax claim or other dispute pending or threatened against the requirements of Rule 17j-1 under the 1940 Act and will provide UBS Global AM and the Board with a copy of such code of ethics, together with evidence of its adoption. Within fifteen days of the end of the last calendar quarter of each year that this Agreement is in effect, a duly authorized officer of the Sub-Adviser shall certify to UBS Global AM that the Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous year and that there has been no material violation of the Sub-Adviser’s code of ethics orBorrower which, if such a violation has occurreddecided adversely against the Borrower, that appropriate action was taken would impair its ability to repay the Securities Loan Obligations, except as have been disclosed in response writing to such violation. Upon the written request of UBS Global AM, the Sub-Adviser shall permit UBS Global AM, its employees or its agents to examine the reports required to be made by the Sub-Adviser pursuant to Rule 17j-1 and all other records relevant to the Sub-Adviser’s code of ethicsState Street.
(c) The Sub-Adviser has provided UBS Global AM with a copy of its Form ADVBorrower is not in default on any material obligation for borrowed money, except as most recently filed with the Securities and Exchange Commission (“SEC”), and promptly will furnish a copy of all amendments have been disclosed in writing to UBS Global AM at least annuallyState Street.
(d) The Sub-Adviser will notify UBS Global AM There is no event which is an Event of Default under this Agreement.
(e) No approval, consent, exemption, authorization or other action by, or notice to or filing with, any change governmental authority or any other Third Party is necessary or required in connection with (i) the execution, delivery or performance by, or enforcement against, the Borrower of control this Agreement or any Collateral Document, (ii) the grant by the Borrower of the Sub-AdviserLiens granted by it pursuant to this Agreement and the Collateral Documents, (iii) the perfection or maintenance of the Liens created under this Agreement and the Collateral Documents, including any change the first priority nature thereof to the extent applicable or (iv) the exercise by State Street of its general partners rights under this Agreement and the Collateral Documents or 25% shareholders the remedies in respect of the Securities Loan Collateral or 25% limited partnersthe Custodial Collateral, as applicable, pursuant to this Agreement or the Collateral Documents.
9.9 The Borrower is the legal and beneficial owner of the Securities Loan Collateral, free and clear of any changes liens, claims, encumbrances and transfer restrictions, except as created by this Agreement or the Custodian Contract. Upon delivery of the Securities Loan Collateral in accordance with Section 4.1 or the identification and designation of any Custodial Collateral as Securities Loan Collateral, State Street will have, as security for the Securities Loan Obligations, a perfected first priority security interest in the key personnel who Securities Loan Collateral.
9.10 The Borrower represents and warrants that, with respect to each Securities Loan, the Borrower has made or will make an independent determination that the terms of such Securities Loan, including but not limited to the compensation to be agreed upon pursuant to Section 8.1 or otherwise payable with respect to each Securities Loan, are either fair and reasonable and acceptable to the portfolio manager(s) of the Portfolio or senior management of the Sub-AdviserBorrower, in each case prior to or promptly after such change.notwithstanding that more favorable terms may be available from a Third
Appears in 1 contract
Sources: Securities Lending and Services Agreement (Alliancebernstein Cap Fund, Inc.)
Representations of the Parties. The Sub-Adviser (a) Executive hereby represents, warrants, covenants and agrees as follows:
(a) The Sub-Adviser (i) is duly formed and validly existing in accordance with the laws of the State of Delaware; (ii) 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; (iii) is not prohibited by the 1940 Act or the Advisers Act from performing the services contemplated by this Agreement; (iv) has met, and will seek to continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency, necessary to be met in order to perform the services contemplated by this Agreement; (v) Executive has the capacity and authority right to enter into this Agreement (vi) Agreement, that he is not a party to any agreement or understanding, oral or written, which would prohibit performance of his obligations under this Agreement has been duly authorizedAgreement, executed and delivered on its behalf and is a valid and binding agreement enforceable in accordance with its terms;(vii) entry into this Agreement that he will not breach or cause to be breached any undertaking, agreement, contract, statute, rule or regulation to which it is a party or by which it is bound which would materially limit or affect use in the performance of its duties thereunder; his obligations hereunder any proprietary information of any other party which he is legally prohibited from using.
(ii) Executive is acquiring the Shares being issued to him pursuant to this Agreement for his own account and (viii) will promptly notify UBS Global AM not with a view to or for sale ordistribution thereof. Executive understands that the Shares are restricted securities and he understands the meaning of the occurrence term “restricted securities.” Executive further represents that he is an accredited investor within the meaning of Rule 501 of the Securities and Exchange Commission under the Securities Act of 1933, as amended, that he understands the meaning of the term “accredited investor,” and that he was not solicited by publication of any event that would disqualify advertisement in connection with the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) receipt of the 1940 Shares and that he has consulted tax counsel as needed regarding the Shares.Executive did not acquire the Shares as a result of, and will not engage in, any “directed selling efforts” (as defined in Regulation S under the Securities Act of 1933, as amended) in the United States in respect of the Shares, which would include any activities undertaken for the purpose of, or otherwisethat could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of the Shares; provided, however, that Executive may sell or otherwise dispose of the Shares pursuant any applicable securities laws or under an exemption from the registration requirements of said Securities Act.
(iii) Executive will not transfer any Shares except in compliance with all applicable federal and state securities laws and regulations, and, in such connection, the Company may request an opinion of counsel reasonably acceptable to the Company as to the availability of any exemption.
(b) The Sub-Adviser Executive further represents that, during the past five years:
(i) No petition has adopted been filed under the federal bankruptcy laws or any state insolvency law by or against, or a written code receiver, fiscal agent or similar officer has been appointed by a court for his business or property, or any partnership in which he was a general partner at or within two years before the time of ethics complying such filing, or any corporation or business association of which he was an executive officer at or within two years before the time of such filing;
(ii) Executive has not been convicted in a criminal proceeding and is not the subject of a pending criminal proceeding (excluding traffic violations and other minor offenses);
(iii) Executive has not been the subject of any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining himfrom, or otherwise limiting, the following activities:
(A) Acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission, or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with such activity;
(B) Engaging in any type of business practice; or
(C) Engaging in any activity in connection with the requirements purchase or sale of Rule 17j-1 under any security or commodity or in connection with any violation of federal or state securities laws or federal commodities laws;
(iv) Executive has not been the 1940 Act and will provide UBS Global AM subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any federal or state authority barring, suspending or otherwise limiting, for more than 60 days, his right to engage in any activity described in Section 4(b)(iii)(A) of this Agreement, or to be associated with persons engaged in any such activity;
(v) Executive has not been found by a court of competent jurisdiction in a civil action or by the SEC to have violated any federal or state securities law, and the Board with a copy of judgment in such code of ethics, together with evidence of its adoption. Within fifteen days of the end of the last calendar quarter of each year that this Agreement is in effect, a duly authorized officer of the Sub-Adviser shall certify to UBS Global AM that the Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous year and that there has been no material violation of the Sub-Adviser’s code of ethics or, if such a violation has occurred, that appropriate civil action was taken in response to such violation. Upon the written request of UBS Global AM, the Sub-Adviser shall permit UBS Global AM, its employees or its agents to examine the reports required to be made finding by the Sub-Adviser pursuant SEC has not been subsequently reversed, suspended, or vacated; and
(vi) Executive has not been found by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to Rule 17j-1 have violated any Federal commodities law, and all other records relevant to the Sub-Adviser’s code of ethicsjudgment in such civil action or finding by the Commodity Futures Trading Commission has not been subsequently reversed, suspended or vacated.
(c) The Sub-Adviser Company represents, warrants and agrees that it has provided UBS Global AM with a copy of full power and authority to execute and deliver this Agreement and perform its Form ADV, as most recently filed with the Securities and Exchange Commission (“SEC”), and promptly will furnish a copy of all amendments to UBS Global AM at least annuallyobligations hereunder.
(d) The Sub-Adviser will notify UBS Global AM of any change of control of the Sub-Adviser, including any change of its general partners or 25% shareholders or 25% limited partners, as applicable, and any changes in the key personnel who are either the portfolio manager(s) of the Portfolio or senior management of the Sub-Adviser, in each case prior to or promptly after such change.
Appears in 1 contract
Representations of the Parties. The Sub-Adviser represents, warrants, and agrees as follows:
Each party to this Agreement hereby acknowledges that (a) The Sub-Adviser (i) is duly formed and validly existing in accordance with the laws of the State of Delaware; (ii) it is registered as an ------------------------------ investment adviser advisor under the Advisers Act Act, that it will use its reasonable best efforts to maintain such registration, and that it will continue promptly notify the other if it ceases to be so registered registered, if its registration is suspended for so long as this Agreement remains in effectany reason, or if it is notified by any regulatory organization or court of competent jurisdiction that it should show cause why its registration should not be suspended or terminated; (iiib) it has been duly incorporated and is not prohibited by validly existing and in good standing as a corporation under the 1940 Act or laws of its state of incorporation; (c) it has all requisite corporate power and authority under the Advisers Act from performing the services contemplated by laws of its state of incorporation and federal securities laws to execute, deliver and to perform its obligations under this Agreement; (ivd) has metall necessary corporate proceedings have been duly taken by it to authorize the execution, delivery and will seek to continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements performance of any regulatory or industry self-regulatory agency, necessary to be met in order to perform the services contemplated by this Agreement; and (ve) has the capacity and authority to enter into this Agreement (vi) this Agreement has shares of the Trust have been duly authorized, executed and delivered on its behalf and is a valid and binding agreement enforceable in accordance with its terms;(vii) entry into this Agreement will not breach or cause to be breached any undertaking, agreement, contract, statute, rule or regulation to which it is a party or by which it is bound which would materially limit or affect the performance of its duties thereunder; and (viii) will promptly notify UBS Global AM of the occurrence of any event that would disqualify the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act or otherwise.
(b) The Sub-Adviser has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act and will provide UBS Global AM and the Board with a copy of such code of ethics, together with evidence of its adoption. Within fifteen days of the end of the last calendar quarter of each year that this Agreement is in effect, a duly authorized officer of the Sub-Adviser shall certify to UBS Global AM that the Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous year and that there has been no material violation of the Sub-Adviser’s code of ethics or, if such a violation has occurred, that appropriate action was taken in response to such violation. Upon the written request of UBS Global AM, the Sub-Adviser shall permit UBS Global AM, its employees or its agents to examine the reports required to be made by the Sub-Adviser pursuant to Rule 17j-1 and all other records relevant to the Sub-Adviser’s code of ethics.
(c) The Sub-Adviser has provided UBS Global AM with a copy of its Form ADV, as most recently filed registered with the Securities and Exchange Commission (“SEC”), and promptly will furnish a copy of all amendments to UBS Global AM at least annually.
(d) the extent required by applicable law. The Sub-Adviser Advisor further represents that it has adopted a written Code of Ethics in compliance with Rule 17j-1(b) of the ICA. The Sub-Advisor shall be subject to such Code of Ethics and shall not be subject to any other Code of Ethics, including the Investment Manager's Code of Ethics, unless specifically adopted by the Sub-Advisor. The Investment Manager acknowledges and agrees that the Sub-Advisor makes no representation or warranty, express or implied, that any level of performance or investment results will notify UBS Global AM of be achieved by the Portfolio or that the Portfolio will perform comparably with any change of control standard or index, including other clients of the Sub-AdviserAdvisor, including any change of its general partners whether public or 25% shareholders or 25% limited partners, as applicable, and any changes in the key personnel who are either the portfolio manager(s) of the Portfolio or senior management of the Sub-Adviser, in each case prior to or promptly after such changeprivate.
Appears in 1 contract
Representations of the Parties. The Sub-Adviser represents, warrants, Each party hereto hereby further represents and agrees as follows:
(a) The Sub-Adviser warrants to the other that: (i) is duly formed and validly existing in accordance with the laws of the State of Delaware; (ii) it is registered as an investment adviser under the Advisers Act and will continue is registered or licensed as an investment adviser under the laws of all jurisdictions in which its activities require it to be so registered for so long as or licensed; and (ii) it will use its reasonable best efforts to maintain each such registration or license in effect at all times during the term of this Agreement remains in effectAgreement; and (iii) it will promptly notify the other if it ceases to be so registered, if its registration is suspended for any reason, or if it is notified by any regulatory organization or court of competent jurisdiction that it should show cause why its registration should not prohibited by the 1940 Act be suspended or the Advisers Act from performing the services contemplated by this Agreementterminated; and (iv) has met, and will seek to continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency, necessary to be met in order to perform the services contemplated by this Agreement; (v) has the capacity and authority it is duly authorized to enter into this Agreement (viand to perform its obligations hereunder. The Sub-Adviser further represents that it has adopted a written Code of Ethics in compliance with Rule 17j-1(c) this Agreement has been duly authorizedof the ICA, executed and delivered on its behalf and is a valid and binding agreement enforceable which shall be subject to approval by the Trustees in accordance with its terms;(vii) entry into this Agreement will the requirements of such rule. The Sub-Adviser shall be subject to such Code of Ethics and shall not breach or cause be subject to be breached any undertakingother Code of Ethics, agreementincluding the Investment Manager's Code of Ethics, contract, statute, rule or regulation unless specifically adopted by the Sub-Adviser. The Investment Manager further represents and warrants to which it is a party or by which it is bound which would materially limit or affect the performance of its duties thereunder; and (viii) will promptly notify UBS Global AM of the occurrence of any event that would disqualify the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(athat (i) of the 1940 Act or otherwise.
(b) The Sub-Adviser has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act and will provide UBS Global AM and the Board with a copy of such code of ethics, together with evidence of its adoption. Within fifteen days of the end of the last calendar quarter of each year that this Agreement is in effect, a duly authorized officer appointment of the Sub-Adviser shall certify by the Investment Manager has been duly authorized and (ii) it has acted and will continue to UBS Global AM act in connection with the transactions contemplated hereby, and the transactions contemplated hereby are, in conformity with the ICA, the Trust's governing documents and other applicable law. The Investment Manager acknowledges and agrees that the Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous year and that there has been makes no material violation of the Sub-Adviser’s code of ethics orrepresentation or warranty, if such a violation has occurredexpress or implied, that appropriate action was taken in response to such violation. Upon the written request any level of UBS Global AM, the Sub-Adviser shall permit UBS Global AM, its employees performance or its agents to examine the reports required to investment results will be made achieved by the Sub-Adviser pursuant to Rule 17j-1 and all Portfolio or that the Portfolio will perform comparably with any standard or index, including other records relevant to the Sub-Adviser’s code of ethics.
(c) The Sub-Adviser has provided UBS Global AM with a copy of its Form ADV, as most recently filed with the Securities and Exchange Commission (“SEC”), and promptly will furnish a copy of all amendments to UBS Global AM at least annually.
(d) The Sub-Adviser will notify UBS Global AM of any change of control clients of the Sub-Adviser, including any change of its general partners whether public or 25% shareholders or 25% limited partners, as applicable, and any changes in the key personnel who are either the portfolio manager(s) of the Portfolio or senior management of the Sub-Adviser, in each case prior to or promptly after such changeprivate.
Appears in 1 contract
Representations of the Parties. The Sub-Adviser representsParties hereby make the following representations and warranties, warrants, and agrees as followswhich shall be repeated continuously until the later of the termination of this Agreement or the repayment in full of all amounts owed to State Street under any Securities Loan or any Cash Loan under this Agreement or any Collateral Documents:
9.1 Each Party hereto represents and warrants that (a) The Sub-Adviser it has the power and authority to execute and deliver this Agreement and to enter into the Securities Loans and Cash Loans contemplated hereby and to perform its obligations expressly set forth hereunder, (ib) it has taken all necessary action to authorize such execution, delivery and performance and (c) this Agreement constitutes a legal, valid, and binding obligation enforceable against such party.
9.2 State Street represents and warrants (a) that it is a trust company duly formed organized and validly existing under the laws of The Commonwealth of Massachusetts and (b) that it has, or will have at the time of delivery, the authority to deliver the Borrowed Securities subject to the terms and conditions hereof.
9.3 The Borrower represents and warrants that (a) it is an entity duly organized and validly existing under the laws of the state of its organization, (b) it is in material compliance with all laws, regulations and supervisory directives applicable to the Borrower, (c) it has, or will have at the time of delivery or identification or designation of any Securities Loan Collateral or Cash Loan Collateral, the right to grant a security interest therein in accordance with the laws of the State of Delaware; terms and conditions hereof, (iid) 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; (iii) is not prohibited by the 1940 Act or the Advisers Act from performing the services contemplated by this Agreement; (iv) has met, and will seek to continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency, necessary to be met in order to perform the services contemplated by this Agreement; (v) it has the capacity and authority right to enter into this Agreement (vi) this Agreement has been duly authorized, executed and delivered on its behalf and is grant a valid and binding agreement enforceable security interest in the Custodial Collateral in accordance with its terms;(viithe terms and conditions hereof and (e) entry it is borrowing the Borrowed Securities hereunder solely for the purposes of making delivery of such Borrowed Securities to cover short sales entered into by the Borrower.
9.4 Each Party hereto represents, warrants and covenants that the execution, delivery and performance by it of this Agreement and each Securities Loan and Cash Loan hereunder will at all times comply with all Applicable Law.
9.5 The Borrower further represents and warrants that the Borrower has not breach relied on State Street or cause to be breached any undertaking, agreement, contract, statute, rule or regulation to which it is a party or by which it is bound which would materially limit or affect the performance of its duties thereunder; Affiliates for investment, financial, legal or other advice with respect to the Securities Loans and (viii) will promptly notify UBS Global AM Cash Loans and the Borrower is making its independent judgment or is relying upon External Managers or third party advisers with respect to the Securities Loans and, Cash Loans and neither State Street nor any of its Affiliates are acting as a fiduciary, advisor or agent for the Borrower with respect to any of the occurrence Securities Loans and Cash Loans .
9.6 Each Party hereto represents and warrants that it has made its own determination as to the tax treatment of any event transfers made with respect to this Agreement and any dividends, distributions, remuneration or other payments received or paid hereunder. If the Borrowed Securities consist of shares or other units of ownership of real property companies, trusts or other investment entities, the Borrower acknowledges that would disqualify the Sub-Adviser from serving as an investment adviser tax treatment of an investment company any transfers of such Borrowed Securities and manufactured and other payments with respect to such Borrowed Securities may be materially and adversely different than transfers and payments with respect to loans of ordinary equity shares and the Borrower agrees that State Street shall be entitled to reimbursement for any costs or expenses suffered by State Street with respect to Securities Loans involving such Borrowed Securities.
9.7 The Borrower represents that any financial statements provided to State Street pursuant to Section 9(a) 10.1 hereof provide a fair representation of the 1940 Act or otherwise.
(b) The Sub-Adviser has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act and will provide UBS Global AM and the Board with a copy of such code of ethics, together with evidence of its adoption. Within fifteen days financial condition of the end of the last calendar quarter of each year that this Agreement is in effect, a duly authorized officer of the Sub-Adviser shall certify to UBS Global AM that the Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous year Borrower and that there has been no material violation adverse change in the financial condition of the Sub-Adviser’s code Borrower since the date of ethics such financial statements that has not been disclosed in writing to State Street. Each request by the Borrower for a Securities Loan or Cash Loan shall constitute a representation and warranty at such time that (a) there has been no material adverse change in the financial condition of the Borrower that has not been disclosed in writing to State Street since the date of the most recent statement furnished to State Street pursuant to Section 10.1 and (b) as of the date of such request for a Securities Loan or Cash Loan, the Borrower is in compliance with all Applicable Law and satisfies any regulatory capital requirements applicable to such entity.
9.8 The Borrower also makes the following additional representations and warranties and each request for a Securities Loan or a Cash Loan shall constitute a renewal of these representations and warranties at and as of the date of such request.
(a) This Agreement and the Collateral Documents do not conflict with any agreement or other obligation by which the Borrower is bound.
(b) There is no lawsuit, judicial or administrative proceeding, tax claim or other dispute pending or, if such a violation has occurred, that appropriate action was taken in response to such violation. Upon the written request of UBS Global AM, the Sub-Adviser shall permit UBS Global AM, its employees or its agents to examine the reports required to be made by the Sub-Adviser pursuant to Rule 17j-1 and all other records relevant to the Sub-Adviserbest of the Borrower’s code information and belief, threatened against the Borrower which, if decided adversely against the Borrower, would materially impair the financial condition of ethicsthe Borrower or impair its ability to repay the Securities Loan Obligations or Cash Loan Obligations, except as have been disclosed in writing to State Street.
(c) The Sub-Adviser has provided UBS Global AM with a copy of its Form ADVBorrower is not in default on any material obligation for borrowed money, any purchase money obligation or any other material lease, commitment, contract, instrument or obligation, except as most recently filed with the Securities and Exchange Commission (“SEC”), and promptly will furnish a copy of all amendments have been disclosed in writing to UBS Global AM at least annuallyState Street.
(d) The Sub-Adviser will notify UBS Global AM There is currently no event which is, or with notice or lapse of time or both would be, an Event of Default under this Agreement.
(e) No approval, consent, exemption, authorization or other action by, or notice to or filing with, any change governmental authority or any other Third Party is necessary or required in connection with (i) the execution, delivery or performance by, or enforcement against, the Borrower of control this Agreement or any Collateral Document, (ii) the grant by the Borrower of the Sub-AdviserLiens granted by it pursuant to this Agreement and the Collateral Documents, (iii) the perfection or maintenance of the Liens created under this Agreement and the Collateral Documents, including any change the first priority nature thereof to the extent applicable or (iv) the exercise by State Street of its general partners rights under this Agreement and the Collateral Documents or 25% shareholders the remedies in respect of the Securities Loan Collateral, the Cash Loan Collateral or 25% limited partnersthe Custodial Collateral, as applicable, pursuant to this Agreement or the Collateral Documents.
9.9 The Borrower is the legal and beneficial owner of the Securities Loan Collateral and Cash Loan Collateral, free and clear of any liens, claims, encumbrances and transfer restrictions, except for the Liens arising under the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Documents which shall be terminated in accordance with Section 10.5. Upon delivery of the Securities Loan Collateral in accordance with Section 4.1 or the identification and designation of any Custodial Collateral as Securities Loan Collateral or Cash Loan Collateral, as applicable, State Street will have, as security for the Securities Loan Obligations or Cash Loan Obligations, as applicable, a perfected first priority security interest in the Securities Loan Collateral or the Cash Loan Collateral, as applicable.
9.10 The Borrower represents and warrants that, with respect to each Securities Loan, the Borrower has made or will make an independent determination that the terms of such Securities Loan, including but not limited to the compensation to be agreed upon pursuant to Section 8.1 or otherwise payable with respect to each Securities Loan, are fair and reasonable and acceptable to the Borrower, notwithstanding that more favorable terms may be available from a Third Party for borrowing Equivalent Securities. The Borrower further represents, warrants, acknowledges and agrees that with respect to any Securities Loans made by State Street to the Borrower hereunder, such Securities Loans are not subject to the Securities Lending Agreement and, notwithstanding any provisions of the Securities Lending Agreement to the contrary, State Street shall have no obligation, responsibility or liability to share with the Borrower any of the net income generated by the investment of Securities Loan Collateral in the form of cash delivered to State Street with respect to a Securities Loan, except for such amount as may be agreed upon in accordance with Section 8.1 hereof, or to pay or fund the agreed-upon fees, rebates or other amounts owed to State Street by the Borrower with respect to such Securities Loans.
9.11 The Borrower acknowledges and agrees that State Street in its capacity as the Lending Agent under the Securities Lending Agreement may loan securities of the Borrower to State Street or its Affiliates and that State Street may also make Securities Loans and Cash Loans to the Borrower pursuant to this Agreement (collectively, the “State Street Principal Transactions”). The Borrower agrees and acknowledges that (a) it consents to all such State Street Principal Transactions and waives any conflicts of interest arising out of such State Street Principal Transactions and any changes requirement by State Street or its Affiliates to account to the Borrower for any profits, earnings or other compensation earned by any of them with respect to any of the State Street Principal Transactions, (b) the State Street Principal Transactions will not constitute a breach of any trust or any fiduciary or other duty owed by State Street or its Affiliates to the Borrower and (c) the Borrower has entered into the Securities Lending Agreement and into this Agreement as a result of the desire by the Borrower to increase the opportunity for the Borrower to lend securities and to borrow cash and securities on fair and reasonable terms.
9.12 The Borrower acknowledges that it has made an independent decision to appoint State Street as its agent and to permit State Street to enter into transactions on behalf of the Borrower, including at times with State Street or its Affiliates acting as principal counterparties, pursuant to Section 3.9, Section 4.6 and Section 5.4 of this Agreement in order to obtain the key personnel who are benefit of the services provided hereunder by State Street and the benefit of such transactions without such services and transactions being considered a breach of any fiduciary or other duty to the Borrower by State Street or any of its Affiliates.
9.13 The Borrower represents and warrants that either (a) it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan subject to Section 4975 of the portfolio manager(sCode or (iii) otherwise deemed to be “plan assets” subject to Title I of ERISA or Section 4975 of the Code or (b) the entry into, maintenance and performance of this Agreement and the transactions contemplated thereby do not and will not constitute a non-exempt prohibited transaction within the meaning of Section 406 of ERISA or Section 4975 of the Code by reason of the availability of Section 408(b)(17) of the Portfolio ERISA, Department of Labor Prohibited Transaction Exemption 84-14, Prohibited Transaction Exemption 96-23, Prohibited Transaction Exemption 91-38 or senior management of the Sub-Adviseranother statutory, in each case prior to class or promptly after such changeindividual exemption.
Appears in 1 contract
Sources: Securities Lending and Services Agreement (Glenmede Fund Inc)
Representations of the Parties. A. The Sub-Adviser represents, warrants, and agrees as follows:
(a) i. The Sub-Adviser Adviser:
(i) is duly formed and validly existing in accordance with the laws of the State of Delaware; (iia) 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; (iiib) is not prohibited by the 1940 Act or the Advisers Act from performing the services contemplated by this Agreement; (ivc) has metexcept for matters that would not reasonably be expected to have a material adverse effect on the Sub-Adviser’s ability to comply with and perform its obligations under this Agreement, meets, and will seek to continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agencyorganization, necessary to be met in order to perform the services contemplated by this Agreement; (vd) has the capacity and authority to enter into and perform the services contemplated by this Agreement (vi) this Agreement has been duly authorized, executed and delivered on its behalf and is a valid and binding agreement enforceable in accordance with its terms;(vii) entry into this Agreement will not breach or cause to be breached any undertaking, agreement, contract, statute, rule or regulation to which it is a party or by which it is bound which would materially limit or affect the performance of its duties thereunderAgreement; and (viiie) will promptly notify UBS Global AM the Adviser of the occurrence of any event that would disqualify the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act or otherwise. The Sub-Adviser has provided the information about itself set forth in the Registration Statement and has reviewed the description of its operations, duties and responsibilities as set forth therein (the “Sub-Adviser Information”) and acknowledges that the Sub-Adviser Information is true and correct in all material respects, contains no material misstatement of fact and does not omit any material fact necessary to make the statements therein not misleading. The Sub-Adviser further agrees to inform the Adviser and the Trust’s Administrator promptly if the Sub-Adviser Information ceases to be true and correct in any material respect, contains a material misstatement of fact or omits any material fact necessary to make the statements therein not misleading.
(b) ii. The Sub-Adviser has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act and and, if it has not already done so, will provide UBS Global AM the Adviser and the Board Trust with a copy of such code of ethics. On at least an annual basis, together with evidence of its adoption. Within fifteen days of the end of the last calendar quarter of each year that this Agreement is in effect, a duly authorized officer of the Sub-Adviser shall certify will comply with the reporting requirements of Rule 17j-1, which may include upon the Adviser’s request (a) certifying to UBS Global AM the Adviser that the Sub-Adviser has and its Access Persons have complied in all material respects with the requirements Sub-Adviser’s Code of Rule 17j-1 during Ethics with respect to the previous year Allocated Assets and that there has been no (b) identifying any material violation violations of the Sub-Adviser’s code Code of ethics orEthics which have occurred with respect to the Allocated Assets. In the event the Sub-Adviser has identified to the Adviser a material violation that has occurred with respect to the Allocated Assets, if the Sub-Adviser agrees to promptly provide to the Adviser such a violation information as the Adviser may reasonably request in connection therewith.
iii. Sub-Adviser has occurredadopted and implemented written policies and procedures, that appropriate action was taken in response as required by Rule 206(4)-7 under the Advisers Act, which are reasonably designed to such violationprevent violations of the Advisers Act by the Sub-Adviser, its employees, officers and agents. Upon the written request of UBS Global AMreasonable request, the Sub-Adviser shall permit UBS Global AM, its employees or its agents provide the Adviser with access to examine the reports required records relating to be made by such policies and procedures as they relate to the Allocated Assets. The Sub-Adviser pursuant will also provide, at the reasonable request of the Adviser, periodic certifications, in a form reasonably acceptable to Rule 17j-1 the Adviser and all other records relevant to the Sub-Adviser’s code of ethics, attesting to such written policies and procedures.
(c) iv. The Sub-Adviser has provided UBS Global AM the Adviser and the Trust with a copy of its Part 2A of the Sub-Adviser’s Form ADV, ADV as most recently filed with the Securities SEC and Exchange Commission (“SEC”), and promptly hereafter will furnish provide a copy of all amendments its annual amendment to UBS Global AM at least annually.
the Adviser (dor a summary of any material changes) either of which may be provided via an electronic link to the SEC’s Webpage. The Sub-Adviser agrees to maintain the completeness and accuracy in all material respects of its registration on Form ADV in accordance with the Advisers Act. The Sub-Adviser acknowledges that it is an “investment adviser” to the Fund with respect to the Allocated Assets within the meaning of the 1940 Act and the Advisers Act.
v. The Sub-Adviser confirms that neither it nor its general partner is an affiliated person as defined in the 1940 Act of: (a) the Adviser; (b) Foreside, the distributor for the Trust; or (iii) any trustee or officer of the Trust.
B. The Adviser represents, warrants, and agrees on each day during the term of this Agreement as follows:
i. The Adviser 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 and will promptly notify UBS Global AM the Sub-Adviser of the occurrence of any change event that would disqualify the Adviser from serving as an investment adviser of control an investment company pursuant to Section 9(a) of the 1940 Act or otherwise.
ii. The Trust is registered as an investment company under the 1940 Act and shall maintain such registration in good standing throughout the term of this Agreement. The Adviser shall inform the Sub-Adviser as promptly as practicable (but only if permitted by applicable law or regulation) of any regulatory inquiry or action with respect to the Trust, the Fund or the Adviser that could reasonably be expected to have a material impact on the Sub-Adviser’s provision of services hereunder.
iii. The execution and delivery of this Agreement, including the incurrence of the obligations herein set forth and the consummation of the transactions contemplated herein will not constitute a breach of, or default under, any change instrument by which the Adviser is bound or any order, rule, statue or regulation applicable to the Adviser of its general partners any court or 25% shareholders any governmental body or 25% limited partnersadministrative agency having jurisdiction over the Adviser, as applicableincluding, without limitation the 1940 Act or the Advisers Act. Without limiting the generality of the foregoing, the Adviser is authorized and permitted under the Registration Statement, the Declaration of Trust, the Trust’s By-Laws and any changes in other relevant governing document or Board action, to enter into this Agreement (and to effect the key personnel who are either the portfolio manager(s) of the Portfolio or senior management of delegations to the Sub-Adviser by the Adviser contemplated hereby).
iv. This Agreement has been duly and validly authorized, executed and delivered by the Adviser and constitutes a legal, valid and binding agreement of the Adviser enforceable in accordance with its terms.
v. The Adviser is an entity duly organized and validly existing and in good standing under the laws of the jurisdiction of its organization and in good standing in each other jurisdiction in which the nature or conduct of its business requires such qualification and the failure to be duly qualified would materially affect the Adviser’s ability to perform its obligations under this Agreement and, except for matters that would not reasonably be expected to have a material adverse effect on the Adviser’s ability to comply with and perform its obligations contemplated by this Agreement and the Registration Statement, in each case prior all material respects, has all necessary federal and state governmental, regulatory and commodity exchange licenses and approvals required to or promptly after such changeconduct its business as contemplated thereby. The Adviser has full power and authority to perform its obligations under this Agreement and it has the requisite power and authority to own property, perform its obligations and conduct its business.
Appears in 1 contract
Sources: Investment Sub Advisory Agreement (Brinker Capital Destinations Trust)
Representations of the Parties. The Sub-Adviser representsparties hereby make the following representations and warranties, warrants, which shall continue during the term of any Loan hereunder;
6.1 Each party hereto represents and agrees as follows:
warrants that (a) The Subit has the power to execute and deliver this Agreement, to enter into the Loans contemplated hereby, and to perform its obligations hereunder; (b) it has taken all necessary action to authorize such execution, delivery, and performance; and (c) this Agreement constitutes a legal, valid, and binding obligation enforceable against it.
6.2 Each party hereto represents and warrants that the execution, delivery and performance by it of this Agreement and each Loan hereunder will at all times comply with all applicable laws and regulations, including those of applicable securities regulatory and self-Adviser regulatory agencies and organizations.
6.3 Borrower represents and warrants for the benefit of Lender's Agent and each Lender that (ia) it is a trust company duly formed organized and validly existing in accordance with under the laws of the State Commonwealth of Delaware; Massachusetts, (iib) 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; (iii) is not prohibited by the 1940 Act or the Advisers Act from performing the services contemplated by this Agreement; (iv) has met, and will seek to continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency, necessary to be met in order to perform the services contemplated by this Agreement; (v) has the capacity and authority to enter into this Agreement (vi) this Agreement has been duly authorized, executed and delivered on its behalf and is a valid and binding agreement enforceable in accordance with its terms;(vii) entry into this Agreement will not breach or cause to be breached any undertaking, agreement, contract, statute, rule or regulation to which it is a party bank within the meaning of Section 3(a)(6)(A)-(C) of the Exchange Act, (c) it has, or by will have at the time of delivery of any Collateral, the right to grant a first security interest therein subject to the terms and conditions hereof, and (d) the purposes for which it is bound which would materially limit or affect borrows securities hereunder shall not violate the performance of its duties thereunder; and (viii) will promptly notify UBS Global AM laws of the occurrence Commonwealth of any event Massachusetts or the federal laws applicable therein.
6.4 Borrower represents that would disqualify the Sub-Adviser from serving as an investment adviser of an investment company statements provided pursuant to Section 9(a) of the 1940 Act or otherwise.
(b) The Sub-Adviser has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act and will provide UBS Global AM and the Board with a copy of such code of ethics7.1 fairly represent its financial condition, together with evidence of its adoption. Within fifteen days of the end of the last calendar quarter of each year that this Agreement is in effect, a duly authorized officer of the Sub-Adviser shall certify to UBS Global AM that the Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous year and that there has been no material violation adverse change in its financial condition or the financial condition of any parent company since that date that has not been disclosed in writing to Lender's Agent. Lender's Agent represents that it has not been informed of any material adverse change in Lender's financial condition. Each Loan effected hereunder shall constitute a present representation by: (i) Borrower that there has been no material adverse change in its financial condition or the financial condition of any parent company that has not been disclosed in writing to Lender's Agent since the date of the Sub-Adviser’s code of ethics or, if such a violation has occurred, that appropriate action was taken in response most recent statement furnished to such violation. Upon the written request of UBS Global AM, the Sub-Adviser shall permit UBS Global AM, its employees or its agents to examine the reports required to be made by the Sub-Adviser Lender's Agent pursuant to Rule 17j-1 Section 7.1; and all other records relevant to (ii) Lender's Agent that it knows of no material adverse change in the Sub-Adviser’s code of ethics.
(c) The Sub-Adviser has provided UBS Global AM with a copy of its Form ADV, as most recently filed with the Securities and Exchange Commission (“SEC”), and promptly will furnish a copy of all amendments to UBS Global AM at least annually.
(d) The Sub-Adviser will notify UBS Global AM financial condition of any change of control of Lender that has the Sub-Adviser, including any change of its general partners or 25% shareholders or 25% limited partners, as applicable, and any changes in the key personnel who are either the portfolio manager(s) of the Portfolio or senior management of the Sub-Adviser, in each case prior to or promptly after such changeBorrower is not aware of.
Appears in 1 contract
Sources: Securities Lending Authorization Agreement (Bernstein Sanford C Fund Inc)
Representations of the Parties. The Sub-Adviser represents, warrants, and agrees as follows:
(a) The Sub-Adviser Company represents and warrants to Lancer that (i) is duly formed and validly existing in accordance with the laws of the State of Delaware; (ii) 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; (iii) is not prohibited by the 1940 Act or the Advisers Act from performing the services contemplated by this Agreement; (iv) has met, and will seek to continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements of any regulatory or industry self-regulatory agency, necessary to be met in order to perform the services contemplated by this Agreement; (v) has the capacity and authority to enter into this Agreement (vi) this Agreement has been duly authorizedauthorized by all necessary corporate action of the Company, executed and delivered on its behalf and (ii) this Agreement is a valid and binding agreement of the Company, enforceable against it in accordance with its terms;(viiterms, except as enforceability may be limited by bankruptcy laws, other similar laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies, and (iii) contingent upon the execution and delivery of this Agreement by Lancer, the Board has taken all action necessary to grant a limited waiver of Section 203 to the Lancer Entities so as to render inapplicable to the Lancer Entities and the Potential Acquisition the restrictions on “business combinations” set forth in Section 203 solely as a result of the holding of discussions or the entry into this Agreement will not breach agreements, arrangements, and/or understandings between Lancer and the Company or cause to be breached any undertaking, agreement, contract, statute, rule the Company Investors in connection with or regulation to which it is a party or by which it is bound which would materially limit or affect the performance of its duties thereunder; and (viii) will promptly notify UBS Global AM in furtherance of the occurrence of Potential Acquisition, provided that that any event that would disqualify the Sub-Adviser from serving as an investment adviser of an investment company pursuant such discussions, agreements, arrangements or understandings relate solely to Section 9(a) and are in furtherance of the 1940 Act Potential Acquisition, and either (1) are on a confidential basis and such any discussions, agreements, arrangements and understandings are specifically approved in advance by the Board or otherwise(2) occur following the public announcement that the Company and Lancer have entered into a definitive agreement with respect to the Potential Acquisition (the “Waiver”); provided, however, that such Waiver shall be applicable only during the Standstill Period, and shall expire upon the expiration of the Standstill Period unless a definitive agreement for the Potential Acquisition has been entered into prior to or is entered into simultaneously with the expiration of the Standstill Period. The Company acknowledges and agrees that the Board has consented to Lancer holding discussions and entering into agreements, arrangements, and/or understandings with Allianz relating solely to, and in furtherance of, the Potential Acquisition.
(b) The Sub-Adviser Lancer hereby represents and warrants to the Company that (i) this Agreement has adopted been duly authorized by all necessary limited liability company action, of each of Lancer, (ii) the Agreement is a written code valid and binding agreement of ethics complying each Lancer Entity, enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy laws, other similar laws affecting creditors’ rights and general principles of equity affecting the requirements availability of Rule 17j-1 under specific performance and other equitable remedies, and (iii) at all times for the 1940 Act and will provide UBS Global AM and past three (3) years, the Board with a copy of such code of ethicsLancer Entities, together with evidence of its adoption. Within fifteen days in the aggregate, have not owned, directly or indirectly, 15% or more of the end of the last calendar quarter of each year that this Agreement is in effect, a duly authorized officer of the Sub-Adviser shall certify to UBS Global AM that the Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous year and that there has been no material violation of the Sub-Adviser’s code of ethics or, if such a violation has occurred, that appropriate action was taken in response to such violation. Upon the written request of UBS Global AM, the Sub-Adviser shall permit UBS Global AM, its employees or its agents to examine the reports required to be made by the Sub-Adviser pursuant to Rule 17j-1 and all other records relevant to the Sub-Adviser’s code of ethicsCommon Stock.
(c) The Sub-Adviser has provided UBS Global AM with a copy of its Form ADV, as most recently filed with the Securities and Exchange Commission (“SEC”), and promptly will furnish a copy of all amendments to UBS Global AM at least annually.
(d) The Sub-Adviser will notify UBS Global AM of any change of control of the Sub-Adviser, including any change of its general partners or 25% shareholders or 25% limited partners, as applicable, and any changes in the key personnel who are either the portfolio manager(s) of the Portfolio or senior management of the Sub-Adviser, in each case prior to or promptly after such change.
Appears in 1 contract
Representations of the Parties. The Sub-Adviser represents, warrants, and agrees as follows:
Each party to this Agreement hereby acknowledges that (a) The Sub-Adviser (i) is duly formed and validly existing in accordance with the laws of the State of Delaware; (ii) it is registered as an investment adviser advisor under the Advisers Act Act, that it will use its reasonable best efforts to maintain such registration, and that it will continue promptly notify the other if it ceases to be so registered registered, if its registration is suspended for so long as this Agreement remains in effectany reason, or if it is notified by any regulatory organization or court of competent jurisdiction that it should show cause why its registration should not be suspended or terminated; (iiib) it has been duly incorporated and is not prohibited by validly existing and in good standing as a corporation under the 1940 Act or laws of its state of incorporation; (c) it has all requisite corporate power and authority under the Advisers Act from performing the services contemplated by laws of its state of incorporation and federal securities laws to execute, deliver and to perform its obligations under this Agreement; (ivd) has metall necessary corporate proceedings have been duly taken by it to authorize the execution, delivery and will seek to continue to meet for so long as this Agreement remains in effect, any other applicable federal or state requirements, or the applicable requirements performance of any regulatory or industry self-regulatory agency, necessary to be met in order to perform the services contemplated by this Agreement; and (ve) has the capacity and authority to enter into this Agreement (vi) this Agreement has shares of the Trust have been duly authorized, executed and delivered on its behalf and is a valid and binding agreement enforceable in accordance with its terms;(vii) entry into this Agreement will not breach or cause to be breached any undertaking, agreement, contract, statute, rule or regulation to which it is a party or by which it is bound which would materially limit or affect the performance of its duties thereunder; and (viii) will promptly notify UBS Global AM of the occurrence of any event that would disqualify the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9(a) of the 1940 Act or otherwise.
(b) The Sub-Adviser has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act and will provide UBS Global AM and the Board with a copy of such code of ethics, together with evidence of its adoption. Within fifteen days of the end of the last calendar quarter of each year that this Agreement is in effect, a duly authorized officer of the Sub-Adviser shall certify to UBS Global AM that the Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous year and that there has been no material violation of the Sub-Adviser’s code of ethics or, if such a violation has occurred, that appropriate action was taken in response to such violation. Upon the written request of UBS Global AM, the Sub-Adviser shall permit UBS Global AM, its employees or its agents to examine the reports required to be made by the Sub-Adviser pursuant to Rule 17j-1 and all other records relevant to the Sub-Adviser’s code of ethics.
(c) The Sub-Adviser has provided UBS Global AM with a copy of its Form ADV, as most recently filed registered with the Securities and Exchange Commission (“SEC”), and promptly will furnish a copy of all amendments to UBS Global AM at least annually.
(d) the extent required by applicable law. The Sub-Adviser Advisor further represents that it has adopted a written Code of Ethics in compliance with Rule 17j-1(b) of the ICA. The Sub-Advisor shall be subject to such Code of Ethics and shall not be subject to any other Code of Ethics, including the Investment Manager's Code of Ethics, unless specifically adopted by the Sub-Advisor. The Investment Manager acknowledges and agrees that the Sub-Advisor makes no representation or warranty, express or implied, that any level of performance or investment results will notify UBS Global AM of be achieved by the Portfolio or that the Portfolio will perform comparably with any change of control standard or index, including other clients of the Sub-AdviserAdvisor, including any change of its general partners whether public or 25% shareholders or 25% limited partners, as applicable, and any changes in the key personnel who are either the portfolio manager(s) of the Portfolio or senior management of the Sub-Adviser, in each case prior to or promptly after such changeprivate.
Appears in 1 contract