- 79 -
authority to act for, represent, bind or obligate * * * [LTD],
any of its affiliates or any account managed or advised by * * *
[LTD]." Paragraph 4 of the Agreement, however, provides detailed
authority for INC to act on LTD’s behalf:
* * * [INC] will invest such cash, securities and other
properties comprising the assets of investment advisory
clients of * * * * [LTD] as * * * [LTD] shall instruct, in
such manner as * * * [LTD] shall instruct. In order to
carry out such instructions, * * * [INC] will have the
authority for and in the name of * * * [LTD]:
(a) to purchase, sell and deal in * * * instruments or
evidences of indebtedness by whomsoever issued * * *;
(b) to purchase, hold, sell, transfer, exchange,
mortgage, pledge and otherwise act to acquire and dispose of
and exercise all rights, powers, privileges, and other
incidents of ownership or possession with respect to
securities held on behalf of * * * [LTD] or its clients,
with the objective of the preservation, protection and
increase in value thereof;
(c) to purchase securities for investment and to make
such representations to the seller of such securities, and
to other persons, that * * * [INC] may deem proper in such
circumstances, including the representation that such
securities are purchased by * * * [LTD] or its clients for
investment and not with a view to their sale or other
disposition;
(d) to lend any of the properties which are from time
to time held by * * * [LTD] on behalf of its clients; and
(e) to open, maintain, conduct and close accounts * * *
with any broker, dealer or investment concern at which
* * * [LTD] maintains an account on behalf of its clients
with respect to the disposition and application of monies or
securities of * * * [LTD] or its clients and from time to
time held by such broker, dealer or investment concern.
Thus, paragraph 8 and paragraph 4 contain seemingly inconsistent
terms.
As we interpret the Agreement, however, the specific vesting
of authority in INC upon the issuance of instructions from LTD,
pursuant to paragraph 4 of the Agreement, overrides the provision
Page: Previous 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 NextLast modified: May 25, 2011