Common use of Additional Representations and Warranties Regarding the Enhanced Funds Clause in Contracts

Additional Representations and Warranties Regarding the Enhanced Funds. (a) Since its inception, no Enhanced Fund has (i) been required to register as an investment company under the Investment Company Act or (ii) issued or had outstanding any shares or other equity interests that are registered or required to be registered under the Securities Act, the Exchange Act or any comparable regulatory regimes. No Enhanced Fund is advised by any Person serving in the capacity of primary adviser, sub-adviser or any other advisory role to such Enhanced Fund other than the applicable Enhanced Adviser Entity. (b) There has been in full force and effect an Enhanced Entity Advisory Contract with an Enhanced Adviser Entity at all times that such Enhanced Adviser Entity was performing investment management, advisory or sub-advisory or similar services for an Enhanced Fund. Each Enhanced Entity Advisory Contract pursuant to which the Enhanced Adviser Entity has received compensation respecting its activities in connection with any of the Enhanced Funds was duly approved and performed in all material respects in accordance with the applicable organizational documents and applicable Law. Each Enhanced Adviser Entity has provided to Buyer prior to the date hereof true and complete copies of each Enhanced Entity Advisory Contract and all side letters or similar agreements with any investor in an Enhanced Fund. (c) Each Enhanced Fund has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization and has all requisite corporate, partnership, limited liability company, or similar power and authority. Each Enhanced Fund is duly qualified, licensed or registered to do business in each jurisdiction where it is required to do so under applicable Law, except for any failure to be so qualified, licensed or registered that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. All outstanding shares, units or interests of each Enhanced Fund (i) have been issued, offered and sold in compliance with applicable Law in all material respects and (ii) have been duly authorized and validly issued and are fully paid (other than with respect to any unfunded capital commitments that may be called by the relevant GP Entity of such Enhanced Fund pursuant to the limited partnership agreement or limited liability company agreement (or equivalent) of such Enhanced Fund) and (if applicable) non-assessable. (d) Each Enhanced Fund currently is, and has been since its inception, operated in compliance in all material respects with the terms of its Enhanced Entity Advisory Contracts. To the knowledge of the Companies, each Enhanced Fund is in material compliance with the terms governing each of its underlying investments (including, without limitation, in respect of compliance with any applicable reporting and confidentiality provisions). No Enhanced Fund is in default with respect to any obligations to contribute capital to such underlying investments. Schedule 3.25(d) sets out for each Enhanced Fund a schedule of investments including cost, current value, and remaining commitment for each investment. (e) There are no material consent judgments or judicial orders on or with regard to any of the Enhanced Funds. (f) The Enhanced Entities have provided to Buyer prior to the date hereof true and complete copies of the audited financial statements, prepared in accordance with GAAP or in conformity with the accounting principles established by the SBIC Act, as applicable, of each of the Enhanced Funds, for the three (3) fiscal years ending December 31, 2019, December 31, 2018 and December 31, 2017 (each hereinafter referred to as an “Enhanced Fund Financial Statement”). Each of the Enhanced Fund Financial Statements is consistent with the books and records of the related Enhanced Fund, and presents fairly in all material respects the consolidated financial position of the Enhanced Fund in accordance with GAAP or the accounting principles established by the SBIC Act, as applicable, applied on a consistent basis (except as otherwise noted therein) at the respective date of such Enhanced Fund Financial Statement and the results of operations and cash flows for the respective periods indicated. To the knowledge of the Companies, the Enhanced Fund Financial Statements reflect and disclose all material changes in accounting principles and practices adopted by each of the Enhanced Funds during the periods covered by each Enhanced Fund Financial Statement. (g) Except as described in Schedule 3.25(g), no Enhanced Fund has at any time been terminated, or has had its investment operations (including such Enhanced Fund’s ability to call or recycle capital for investment purposes) suspended or terminated, prior to the end of its stated term or had its management, investment management or investment advisory function transferred away from any Enhanced Entity. (h) No Enhanced Fund, GP Entity, or Enhanced Entity has engaged any intermediary, placement agent, distributor or solicitor that was not a registered broker-dealer to offer interests in any Enhanced Fund or to sell any interest in any Enhanced Fund, and there are no outstanding claims against an Enhanced Entity or any Enhanced Fund with respect to any such offers or sales. (i) Except for such failures which, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect, each Enhanced Fund and GP Entity (and the Enhanced Entities on behalf of each Enhanced Fund and GP Entity) is in compliance with, and has since January 1, 2017 complied with the privacy rules and applicable regulations promulgated under applicable Law, including the Xxxxx-Xxxxx-Xxxxxx Act, including the giving of any required notices to investors in each of the Enhanced Funds, the California Consumer Privacy Act of 2018 and the European Union’s General Data Protection Regulation. (j) All investor presentations, private placement memoranda and offering materials containing Performance Records provided, presented or made available by any Enhanced Entity or GP Entity to any Enhanced Advisory Client or any actual or potential investor in any Enhanced Fund have, to the knowledge of the Companies, (i) complied with applicable Law in all material respects and (ii) did not at the time they were so provided, presented or made available contain any untrue statement of a fact or, solely with respect to any private placement memoranda containing Performance Records, omit to state a fact required to be stated in them or necessary to make the statements in them, in light of the circumstances under which they were made, not misleading. The Companies maintain all documentation necessary to form a basis for, demonstrate or recreate the calculation of the performance or rate of return of all accounts that are included in the Performance Records as required by applicable Law. (k) Enhanced Small Business Company, LP has been granted a license to operate as a “small business investment company” (an “SBIC”) under the provisions of Section 301(c) of the SBIC Act, and is an SBIC in good standing under and in material compliance with the provisions of the SBIC Act.