FUND REPRESENTATIONS AND WARRANTIES. In connection with the private placement transaction contemplated by Section 22 above, the Fund hereby represents and warrants to the Investor, on and as of March 25, 2013 and as of the Closing Date (as defined in the Underwriting Agreement), that each of the representations and warranties made by the Fund to the Underwriters (as defined in the Underwriting Agreement) in Section 1 of the Underwriting Agreement is true and correct. In addition, the Fund hereby represents and warrants to the Investor on and as of March 25, 2013 and as of the Closing Date, that: (i) The Fund is duly authorized to execute, deliver and perform the Agreement; the Agreement has been duly authorized, executed and delivered by the Fund and, assuming that the party to the Agreement other than the Fund has the power and authority to enter into and perform the Agreement and the Agreement has been duly authorized, executed and delivered by such party and is a valid, legal and binding agreement of such party, enforceable against such party in accordance with its terms, the Agreement is a valid and binding agreement of the Fund, enforceable against the Fund in accordance with its terms except that (i) such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium, or other laws now or hereafter in effect affecting creditors’ rights generally, and (ii) the enforceability thereof is subject to the general principles of equity (whether such enforceability is considered in a proceeding in equity or at law); (ii) The Fund has an authorized capitalization of 500,000,000 shares of capital stock, and all of the issued shares of capital stock of the Fund have been duly authorized and validly issued, are fully paid and non-assessable; there is no subsidiary of the Fund; the holders of outstanding shares of capital stock of the Fund are not entitled to pre-emptive or other rights to acquire the Shares; (iii) All of the Shares to be issued and sold by the Fund to the Investor hereunder have been duly authorized and, when issued and delivered against payment therefor as provided herein and therein, will be validly issued and fully paid and non-assessable; (iv) The compliance by the Fund with all of the provisions of the Agreement will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or give rise to a right of termination under (i) the organizational document of the Fund or any of its subsidiaries, (ii) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Fund or any of its subsidiaries is a party or by which the Fund or any of its subsidiaries is bound or to which any of the properties or assets of the Fund or any of its subsidiaries is subject, or (iii) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Fund or any of its subsidiaries or any of their properties, except, in the case of clause (ii) or (iii), as would not, individually or in the aggregate, have a material adverse effect on the consolidated financial position, shareholders’ equity or results of operations of the Fund and its subsidiaries (taken as a whole) following the Closing, or affect the due authorization and valid issuance of the Shares; (v) No consents, approvals, authorizations, orders, registrations or qualifications of or with any court or governmental agency or body having jurisdiction over the Fund is required for the execution, delivery or performance by the Fund of the Agreement; (vi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Investor under Federal law or the laws of the State of Maryland or New York or any political subdivision or taxing authority thereof or therein in connection with the initial sale and delivery by the Fund of the Shares to or for the account of the Investor; and no registration, documentary, recording, transfer or other similar tax, fee or charge by any government authority is payable in connection with the execution, delivery, filing, registration or performance of the Agreement; (vii) Assuming the accuracy of the representations and warranties of the Investor set forth in the Agreement, the offer, sale and issuance of the Shares to be issued in conformity with the terms of the Agreement constitute transactions exempt from the registration requirements of Section 5 of the Securities Act, and in compliance with all applicable securities laws of the United States and each of the states whose laws govern the offer and sale of the Shares; and (viii) Assuming the Investor has the requisite power and authority to be the lawful owner of the Shares, the Shares will have good and marketable title and be free and clear of any lien or encumbrance when initially issued and delivered at Closing except as imposed by U.S. securities laws and for the transfer restrictions set forth in the Lock-Up Letter Agreement (the form of which is attached as Exhibit A-2 to the Underwriting Agreement) to be executed by the Investor in favor of Barclays Capital Inc., Credit Suisse Securities (USA) LLC and UBS Securities LLC, as representatives of the several Underwriters named in Schedule 1 to the Underwriting Agreement.
Appears in 1 contract
Samples: Subscription Agreement (Five Oaks Investment Corp.)
FUND REPRESENTATIONS AND WARRANTIES. In connection with the private placement transaction contemplated by Section 22 abovepurchase and sale of the Shares, the Fund hereby represents and warrants to the Investor, on and as of March 25, 2013 and as of the Closing Date (as defined in the Underwriting Agreement), that each of the representations and warranties made by the Fund to the Underwriters (as defined in the Underwriting Agreement) in Section 1 of the Underwriting Agreement is true and correct. In addition, the Fund hereby represents and warrants to the Investor on and as of March 25, 2013 and as of the Closing Date, Purchaser that:
(ia) The Fund (i) has been duly formed and has legal existence as a statutory trust and is in good standing under the laws of the State of Delaware; (ii) has full power and authority to own, lease and operate its properties and assets, and conduct its business as described in the Registration Statement (as defined below) and the Prospectus; and (iii) is duly authorized licensed and qualified to executetransact business and is in good standing in each jurisdiction where it owns or leases property or in which the conduct of its business or other activity requires such qualification, deliver except where the failure to so qualify or to be in good standing would not have a material adverse effect on the Fund.
(b) The Fund has full power and authority to enter into this Agreement and to perform all of the Agreement; the terms and provisions hereof to be carried out by it. This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund. Assuming due authorization, execution and delivery by the other parties thereto, this Agreement constitutes a legal, valid and binding obligation of the Fund and, assuming that the party to the Agreement other than the Fund has the power and authority to enter into and perform the Agreement and the Agreement has been duly authorized, executed and delivered by such party and is a valid, legal and binding agreement of such party, enforceable against such party in accordance with its terms, subject to the Agreement is a valid and binding agreement qualification that the enforceability of the Fund, enforceable against the Fund in accordance with its terms except that (i) such enforcement ’s obligations hereunder may be subject to limited by U.S. bankruptcy, insolvency, reorganization, moratorium, or other fraudulent conveyance and similar laws now or hereafter in effect affecting creditors’ rights generally, whether statutory or decisional, and to general equitable principles (ii) the enforceability thereof regardless of whether enforcement is subject to the general principles of equity (whether such enforceability is considered sought in a proceeding in equity or at law);, and except as enforcement of rights to indemnity or contribution thereunder may be limited by federal or state securities laws.
(iic) The Fund has an authorized capitalization of 500,000,000 shares of capital stock, Shares to be issued and all of delivered to and paid for by the issued shares of capital stock of the Fund Purchasers in accordance with this Agreement against payment therefor as provided by this Agreement have been duly authorized and validly issued, are fully paid and non-assessable; there is no subsidiary of the Fund; the holders of outstanding shares of capital stock of the Fund are not entitled to pre-emptive or other rights to acquire the Shares;
(iii) All of the Shares to be issued and sold by the Fund to the Investor hereunder have been duly authorized and, when issued and delivered against payment therefor as provided herein and therein, to the Purchasers will be have been validly issued and will be fully paid and non-assessable;nonassessable.
(ivd) The compliance offering and sale of the Shares hereunder are being made pursuant to an effective Registration Statement on Form N-2 (File Nos. 333-272426 and 811-22554), initially filed with the Securities and Exchange Commission (the “Commission”) on June 5, 2023, as amended by Pre-Effective Amendments No. 1, 2 and 3 and Post-Effective Amendments No. 1 and 2 (the “Registration Statement”), and the prospectus, dated September 29, 2023, including all documents incorporated by reference therein (the “Base Prospectus”), as supplemented by the prospectus supplement, dated the date hereof (which together with the Base Prospectus is herein referred to as the “Prospectus”), that will be filed with the Commission on or before the Closing Date. No stop order or other order suspending the Registration Statement has been issued and, to the best of the Fund’s knowledge, no proceedings for that purpose have been initiated or threatened by the Fund with all or any other governmental authority.
(e) The Prospectus does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the provisions circumstances under which they were made, not misleading. Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or otherwise), business prospects, management, net assets or results of operations of the Fund, whether or not arising in the ordinary course of business (other than changes resulting from changes in securities markets generally).
(f) The financial statements, including the statement of assets and liabilities, together with any related notes or schedules thereto, included or incorporated by reference in the Registration Statement and the Prospectus present fairly the financial position of the Fund as of the dates and for the periods indicated and said statements were prepared in accordance with generally accepted accounting principles in the United States applied on a consistent basis.
(g) None of (i) the execution and delivery by the Fund of this Agreement, (ii) the issuance and sale by the Fund of the Shares as contemplated by this Agreement, the Registration Statement and the Prospectus and (iii) the performance by the Fund of its obligations under this Agreement will not conflict (A) conflicts with or will conflict with, or results in or will result in a breach or violation of any the declaration of trust, Supplement to the Amended and Restated Declaration of Trust (“Supplement to the Declaration of Trust”), bylaws or similar organizational documents of the terms Fund (each as may be amended and restated from time to time), (B) conflicts with or provisions will conflict with, results in or will result in a breach or violation of, or constitutes or will constitute a default or an event of default under, or give rise to a right results in or will result in the creation or imposition of termination under (i) the organizational document any lien, charge or encumbrance upon any properties or assets of the Fund or under the terms and provisions of any of its subsidiariesagreement, (ii) any indenture, mortgage, deed of trustloan agreement, loan agreement note, insurance or surety agreement, lease or other agreement or instrument to which the Fund or any of its subsidiaries is a party or by which the Fund or any of its subsidiaries is it may be bound or to which any of the properties property or assets of the Fund or any of its subsidiaries is subject, except which breach, violation, default, lien, charge or (iii) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Fund or any of its subsidiaries or any of their properties, except, in the case of clause (ii) or (iii), as encumbrance would not, individually or in the aggregate, not have a material adverse effect on the consolidated financial positionFund, shareholders’ equity or (C) results in or will result in any violation of operations any order, law, rule or regulation of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund and its subsidiaries (taken as a whole) following the Closing, or affect the due authorization and valid issuance of the Shares;
(v) No consents, approvals, authorizations, orders, registrations or qualifications of or with any court or governmental agency or body having jurisdiction over the Fund Fund’s properties, except which violation would not have a material adverse effect on the Fund.
(h) No consent, approval, authorization, notification or order of, or filing with, or the issuance of any license or permit by, any federal, state, local or foreign court or governmental or regulatory agency, commission, board, authority or body or with any self-regulatory organization, other non-governmental regulatory authority, securities exchange or association, whether foreign or domestic, is required by the Fund for the execution, delivery consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the Agreement;
(vi) No stamp or other issuance or transfer taxes or duties terms and no capital gains, income, withholding or other taxes are payable provisions to be performed by or on behalf of it in each case as contemplated in this Agreement, the Investor Registration Statement and the Prospectus, except such as (i) may be required and have been obtained under Federal law the Securities Act, the Securities Exchange Act of 1934, as amended, the Investment Company Act of 1940, as amended (the “Investment Company Act”), or the laws Investment Advisors Act of 1940, as amended, or (ii) which failure to obtain would not have a material adverse effect on the State of Maryland or New York or any political subdivision or taxing authority thereof or therein in connection with the initial sale and delivery by the Fund of the Shares to or for the account of the Investor; and no registration, documentary, recording, transfer or other similar tax, fee or charge by any government authority is payable in connection with the execution, delivery, filing, registration or performance of the Agreement;Fund.
(viii) Assuming the accuracy of the representations and warranties of the Investor Except as otherwise set forth in the AgreementRegistration Statement or the Prospectus, there is no action, suit, claim, inquiry, investigation or proceeding affecting the Fund or to which the Fund is a party before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, whether foreign or domestic, now pending or, to the knowledge of the Fund, threatened against the Fund, except which would not have a material adverse effect on the Fund.
(j) The operations of the Fund are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the offerMoney Laundering Control Act of 1986, sale as amended, the Bank Secrecy Act, as amended, the United and issuance Strengthening of America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2001, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Fund with respect to the Money Laundering Laws is pending or, to the knowledge of the Fund after reasonable inquiry, threatened.
(k) The Fund intends to direct the investment of the proceeds of the offering of the Shares in such a manner as to be issued in conformity comply with the terms requirements of Subchapter M of the Agreement constitute transactions exempt from Internal Revenue Code of 1986, as amended (the registration requirements of Section 5 of the Securities Act“Code”), and has qualified and will continue to operate in compliance with all applicable securities laws the requirements to maintain its qualification as a regulated investment company under Subchapter M of the United States and each Code.
(l) Neither the Fund, nor to the knowledge of the states whose laws govern the offer and sale Fund, after reasonable inquiry, any trustee, officer, agent, employee or affiliate of the SharesFund is (i) currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”) or any other relevant sanctions authority or (ii) located, organized or resident in a country or territory that is subject to sanctions by OFAC or any other relevant sanctions authority; andand the Fund will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC or any other relevant sanctions authority.
(viiim) Assuming The Fund is duly registered with the Investor has Commission under the requisite power and authority to be Investment Company Act as a non-diversified, closed-end management investment company; the lawful owner provisions of the SharesFund’s declaration of trust, Supplement to the Shares will have good Declaration of Trust and marketable title bylaws (each as may be amended and be free and clear restated from time to time) comply in all material respects with the requirements of any lien or encumbrance when initially issued and delivered at Closing except as imposed the Investment Company Act.
(n) The Fund shall, by U.S. securities laws and for 5:30 p.m. Eastern time on the transfer restrictions set forth in second trading day immediately following the Lockdate of this Agreement, file a post-Up Letter Agreement (effective amendment to the Registration Statement including the form of which is attached this Agreement and an opinion of legal counsel as Exhibit A-2 to the Underwriting Agreement) to be executed by the Investor in favor of Barclays Capital Inc., Credit Suisse Securities (USA) LLC and UBS Securities LLC, as representatives validity of the several Underwriters named in Schedule 1 to the Underwriting AgreementShares as exhibits thereto.
Appears in 1 contract
FUND REPRESENTATIONS AND WARRANTIES. In connection with the private placement transaction contemplated by Section 22 above, the The Fund hereby represents and warrants to the Investorwarrants, on and as of March 25, 2013 and as of the Closing Date (as defined in the Underwriting Agreement), that each of the which representations and warranties made shall be continuing and shall be deemed to be reaffirmed upon each giving of Oral Instructions or Instructions by the Fund to the Underwriters (as defined in the Underwriting Agreement) in Section 1 of the Underwriting Agreement is true and correct. In addition, the Fund hereby represents and warrants to the Investor on and as of March 25, 2013 and as of the Closing DateFund, that:
(ia) The Fund It is duly authorized organized and existing under the laws of the jurisdiction of its organization, with full power to executecarry on its business as now conducted, deliver to enter into this Agreement and to perform the Agreement; the its obligations hereunder;
(b) This Agreement has been duly authorized, executed and delivered by the Fund andFund, assuming that the party to the Agreement other than the Fund has the power and authority to enter into and perform the Agreement and the Agreement has been duly authorizedapproved by a resolution of its board and constitutes a valid and legally binding obligation of the Fund, executed on behalf of each Series, severally and delivered by such party and is a valid, legal and binding agreement of such partynot jointly, enforceable against such party in accordance with its terms, the Agreement and there is a valid no statute, regulation, rule, order or judgment binding on it, and binding no provision of its charter or by-laws, nor of any mortgage, indenture, credit agreement of the Fund, enforceable against the Fund in accordance with its terms except that (i) such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium, or other laws now contract binding on it or hereafter in effect affecting creditors’ rights generallyits property, and (ii) the enforceability thereof is subject to the general principles which would prohibit its execution or performance of equity (whether such enforceability is considered in a proceeding in equity or at law)this Agreement;
(iic) The Fund has an authorized capitalization of 500,000,000 shares of capital stockIt is conducting its business in material compliance with all applicable laws and requirements, both state and federal, and has obtained all of the issued shares of capital stock of the Fund have been duly authorized regulatory licenses, approvals and validly issued, are fully paid and non-assessable; there is no subsidiary of the Fund; the holders of outstanding shares of capital stock of the Fund are not entitled consents material to pre-emptive or other rights to acquire the Sharescarrying on its business as now conducted;
(iiid) All of It will not use the Shares to be issued and sold services provided by the Fund to the Investor Custodian hereunder have been duly authorized andin any manner that is, when issued and delivered against payment therefor as provided herein and thereinor will result in, will be validly issued and fully paid and non-assessable;
(iv) The compliance by the Fund with all of the provisions of the Agreement will not conflict with or result in a breach or material violation of any of the terms or provisions of, or constitute a default under, or give rise to a right of termination under (i) the organizational document of the Fund or any of its subsidiaries, (ii) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Fund or any of its subsidiaries is a party or by which the Fund or any of its subsidiaries is bound or to which any of the properties or assets of the Fund or any of its subsidiaries is subject, or (iii) any statute or any orderlaw, rule or regulation of any court or governmental agency or body having jurisdiction over applicable to the Fund or any of its subsidiaries or any of their properties, except, in the case of clause (ii) or (iii), as would not, individually or in the aggregate, have a material adverse effect on the consolidated financial position, shareholders’ equity or results of operations of the Fund and its subsidiaries (taken as a whole) following the Closing, or affect the due authorization and valid issuance of the SharesFund;
(ve) No consentsIts board or its foreign custody manager, approvalsas defined in Rule 17f-5 under the Investment Company Act of 1940, authorizationsas amended (the “‘40 Act”), orders, registrations or qualifications has determined that use of or each Subcustodian (including any Replacement Subcustodian) which the Custodian is authorized to utilize in accordance with any court or governmental agency or body having jurisdiction over this Agreement satisfies the Fund is required for the execution, delivery or performance by the Fund applicable requirements of the Agreement‘40 Act and Rule 17f-5 thereunder;
(vif) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf It is fully informed of the Investor under Federal law protections and risks associated with various methods of transmitting Instructions and Oral Instructions to the Custodian, shall safeguard and treat with extreme care any user and authorization codes, passwords and/or authentication keys, understands that there may be more secure methods of transmitting or delivering the laws of same than the State of Maryland or New York or any political subdivision or taxing authority thereof or therein methods selected by it, agrees that the security procedures (if any) to be followed in connection with the initial sale therewith provide a commercially reasonable degree of protection in light of its particular needs and delivery circumstances and acknowledges and agrees that Instructions need not be reviewed by the Fund of Custodian, may conclusively be presumed by the Shares Custodian without inquiry to or for the account of the Investor; have been given by person(s) duly authorized and no registration, documentary, recording, transfer or other similar tax, fee or charge by any government authority is payable in connection with the execution, delivery, filing, registration or performance of the Agreementmay be acted upon as given;
(viig) Assuming the accuracy of the representations and warranties of the Investor set forth It shall manage its borrowings, including, without limitation, any advance or overdraft (including any day-light overdraft) in the AgreementAccounts, so that the offeraggregate of its total borrowings for each Series does not exceed the amount such Series is permitted to borrow under the ‘40 Act;
(h) Its transmission or giving of, sale and issuance of the Shares Custodian acting upon and in reliance on, Instructions or Oral Instructions pursuant to be issued in conformity this Agreement shall at all times comply with the terms of ‘40 Act;
(i) It shall impose and maintain restrictions on the Agreement constitute transactions exempt from the registration requirements of Section 5 of the Securities Act, and in compliance with all applicable securities laws of the United States and destinations to which cash may be disbursed by Instructions to ensure that each of the states whose laws govern the offer and sale of the Sharesdisbursement is for a proper purpose; and
(viiij) Assuming the Investor It has the requisite power right to make the pledge and authority grant the security interest and security entitlement to be the lawful owner of the SharesCustodian contained in Section 5 hereof, the Shares will have good and marketable title and be free and clear of any lien right of redemption or encumbrance when initially issued prior claim of any other person or entity, such pledge and delivered at Closing except such grants shall have a first priority subject to no setoffs, counterclaims or other liens or grants prior to or on a parity therewith, and it shall take such additional steps as imposed by U.S. securities laws and for the transfer restrictions set forth in the Lock-Up Letter Agreement (the form of which is attached as Exhibit A-2 Custodian may require to the Underwriting Agreement) to be executed by the Investor in favor of Barclays Capital Inc., Credit Suisse Securities (USA) LLC and UBS Securities LLC, as representatives of the several Underwriters named in Schedule 1 to the Underwriting Agreementassure such priority.
Appears in 1 contract
FUND REPRESENTATIONS AND WARRANTIES. In connection with the private placement transaction contemplated by Section 22 abovepurchase and sale of the Shares, the Fund hereby represents and warrants to the Investor, on and as of March 25, 2013 and as of the Closing Date (as defined in the Underwriting Agreement), that each of the representations and warranties made by the Fund to the Underwriters (as defined in the Underwriting Agreement) in Section 1 of the Underwriting Agreement is true and correct. In addition, the Fund hereby represents and warrants to the Investor on and as of March 25, 2013 and as of the Closing Date, Purchaser that:
(ia) The Fund (i) has been duly formed and has legal existence as a statutory trust and is in good standing under the laws of the State of Delaware; (ii) has full power and authority to own, lease and operate its properties and assets, and conduct its business as described in the Registration Statement (as defined below) and the Prospectus; (iii) is duly authorized licensed and qualified to executetransact business and is in good standing in each jurisdiction where it owns or leases property or in which the conduct of its business or other activity requires such qualification, deliver except where the failure to so qualify or to be in good standing would not have a material adverse effect on the Fund.
(b) The Fund has full power and authority to enter into this Agreement and to perform all of the Agreement; the terms and provisions hereof to be carried out by it. This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund. Assuming due authorization, execution and delivery by the other parties hereto, this Agreement constitutes a legal, valid and binding obligation of the Fund and, assuming that the party to the Agreement other than the Fund has the power and authority to enter into and perform the Agreement and the Agreement has been duly authorized, executed and delivered by such party and is a valid, legal and binding agreement of such party, enforceable against such party in accordance with its terms, subject to the Agreement is a valid and binding agreement qualification that the enforceability of the Fund, enforceable against the Fund in accordance with its terms except that (i) such enforcement ’s obligations thereunder may be subject to limited by U.S. bankruptcy, insolvency, reorganization, moratorium, or other fraudulent conveyance and similar laws now or hereafter in effect affecting creditors’ rights generally, whether statutory or decisional, and to general equitable principles (ii) the enforceability thereof regardless of whether enforcement is subject to the general principles of equity (whether such enforceability is considered sought in a proceeding in equity or at law);, and except as enforcement of rights to indemnity or contribution thereunder may be limited by federal or state securities laws.
(iic) The Fund has an authorized capitalization of 500,000,000 shares of capital stock, Shares to be issued and all of delivered to and paid for by the issued shares of capital stock of the Fund Purchasers in accordance with this Agreement have been duly authorized and validly issued, are fully paid and non-assessable; there is no subsidiary of the Fund; the holders of outstanding shares of capital stock of the Fund are not entitled to pre-emptive or other rights to acquire the Shares;
(iii) All of the Shares to be issued and sold by the Fund to the Investor hereunder have been duly authorized and, when issued and delivered to the Purchasers against payment therefor as provided herein and therein, by this Agreement will be have been validly issued and will be fully paid and non-assessable;nonassessable.
(ivd) The compliance offering and sale of the Shares hereunder are being made pursuant to an effective Registration Statement on Form N-2 (File No. 333-272426 and 811-22554), initially filed with the Securities and Exchange Commission (the “Commission”) on June 5, 2023 (as amended, the “Registration Statement”), and the Prospectus, dated September 29, 2023, including the statement of additional information and all documents incorporated by reference therein (the “Base Prospectus”), as supplemented by the Prospectus Supplement, dated the date hereof (the “Prospectus Supplement”), that will be filed with the Commission on the date hereof. No stop order or other order suspending the Registration Statement has been issued and, to the best of the Fund’s knowledge, no proceedings for that purpose have been initiated or threatened by the Fund with all or any other governmental authority.
(e) As of the provisions Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Since the date as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (i) there has been no material adverse change in the condition (financial or otherwise), business prospects, management, net assets or results of operations of the Fund, whether or not arising in the ordinary course of business (other than changes resulting from changes in securities markets generally).
(f) The financial statements, including the statement of assets and liabilities, together with any related notes or schedules thereto, included or incorporated by reference in the Registration Statement and the Prospectus present fairly the financial position of the Fund as of the dates and for the periods indicated and said statements were prepared in accordance with generally accepted accounting principles in the United States applied on a consistent basis.
(g) None of (i) the execution and delivery by the Fund of this Agreement, (ii) the issuance and sale by the Fund of the Shares as contemplated by this Agreement, the Registration Statement and the Prospectus and (iii) the performance by the Fund of its obligations under this Agreement will not conflict (A) conflicts with or will conflict with, or results in or will result in a breach or violation of any the declaration of trust (as amended and restated from time to time), bylaws or similar organizational documents of the terms Fund, (B) conflicts with or provisions will conflict with, results in or will result in a breach or violation of, or constitutes or will constitute a default or an event of default under, or give rise to a right results in or will result in the creation or imposition of termination under (i) the organizational document any lien, charge or encumbrance upon any properties or assets of the Fund or under the terms and provisions of any of its subsidiariesagreement, (ii) any indenture, mortgage, deed of trustloan agreement, loan agreement note, insurance or surety agreement, lease or other agreement or instrument to which the Fund or any of its subsidiaries is a party or by which the Fund or any of its subsidiaries is it may be bound or to which any of the properties property or assets of the Fund or any of its subsidiaries is subject, except which breach, violation, default, lien, charge or (iii) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Fund or any of its subsidiaries or any of their properties, except, in the case of clause (ii) or (iii), as encumbrance would not, individually or in the aggregate, not have a material adverse effect on the consolidated financial positionFund, shareholders’ equity or (C) results in or will result in any violation of operations any order, law, rule or regulation of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund and its subsidiaries (taken as a whole) following the Closing, or affect the due authorization and valid issuance of the Shares;
(v) No consents, approvals, authorizations, orders, registrations or qualifications of or with any court or governmental agency or body having jurisdiction over the Fund Fund’s properties, except which violation would not have a material adverse effect on the Fund.
(h) No consent, approval, authorization, notification or order of, or filing with, or the issuance of any license or permit by, any federal, state, local or foreign court or governmental or regulatory agency, commission, board, authority or body or with any self-regulatory organization, other non-governmental regulatory authority, securities exchange or association, whether foreign or domestic, is required by the Fund for the execution, delivery consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the Agreement;
(vi) No stamp or other issuance or transfer taxes or duties terms and no capital gains, income, withholding or other taxes are payable provisions to be performed by or on behalf of it in each case as contemplated in this Agreement, the Investor Registration Statement and the Prospectus, except such as (i) may be required and have been obtained under Federal law the Securities Act, the Securities Exchange Act of 1934, as amended, or the laws Investment Company Act of 1940, as amended (the State of Maryland “Investment Company Act”), or New York or any political subdivision or taxing authority thereof or therein in connection with (ii) which failure to obtain would not have a material adverse effect on the initial sale and delivery by the Fund of the Shares to or for the account of the Investor; and no registration, documentary, recording, transfer or other similar tax, fee or charge by any government authority is payable in connection with the execution, delivery, filing, registration or performance of the Agreement;Fund.
(viii) Assuming the accuracy of the representations and warranties of the Investor Except as otherwise set forth in the AgreementRegistration Statement or the Prospectus, there is no action, suit, claim, inquiry, investigation or proceeding affecting the Fund or to which the Fund is a party before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, whether foreign or domestic, now pending or, to the knowledge of the Fund, threatened against the Fund, except which would not have a material adverse effect on the Fund.
(j) The operations of the Fund are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the offerMoney Laundering Control Act of 1986, sale as amended, the Bank Secrecy Act, as amended, the United and issuance Strengthening of America by Providing Appropriate tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2011, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Fund with respect to the Money Laundering Laws is pending or, to the knowledge of the Fund after reasonable inquiry, threatened.
(k) The Fund intends to direct the investment of the proceeds of the offering of the Shares in such a manner as to be issued in conformity comply with the terms requirements of Subchapter M of the Agreement constitute transactions exempt from Internal Revenue Code of 1986, as amended (the registration requirements of Section 5 of the Securities Act“Code”), and has qualified and intends to continue to operate in compliance with all applicable securities laws the requirements to maintain its qualification as a regulated investment company under Subchapter M of the United States and each Code.
(l) Neither the Fund, nor to the knowledge of the states whose laws govern the offer and sale Fund, after reasonable inquiry, any trustee, officer, agent, employee or affiliate of the SharesFund is (i) currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”) or any other relevant sanctions authority or (ii) located, organized or resident in a country or territory that is subject to sanctions by OFAC or any other relevant sanctions authority; andand the Fund will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC or any other relevant sanctions authority.
(viiim) Assuming The Fund is duly registered with the Investor has Commission under the requisite power and authority to be Investment Company Act as a non-diversified, closed-end management investment company; the lawful owner provisions of the SharesFund’s declaration of trust (as amended and restated from time to time) and bylaws comply in all material respects with the requirements of the Investment Company Act.
(n) The Fund shall, by 5:30 p.m. Eastern time on the Shares will have good and marketable title and be free and clear of any lien or encumbrance when initially issued and delivered at Closing except as imposed by U.S. securities laws and for the transfer restrictions set forth in the LockDate issue a Current Report on Form 8-Up Letter Agreement (K, including the form of which is attached this Agreement and an opinion of legal counsel as Exhibit A-2 to the Underwriting Agreement) to be executed by the Investor in favor of Barclays Capital Inc., Credit Suisse Securities (USA) LLC and UBS Securities LLC, as representatives validity of the several Underwriters named in Schedule 1 to the Underwriting AgreementShares as exhibits thereto.
Appears in 1 contract
FUND REPRESENTATIONS AND WARRANTIES. In connection with the private placement transaction contemplated by Section 22 abovepurchase and sale of the Shares, the Fund hereby represents and warrants to the Investor, on and as of March 25, 2013 and as of the Closing Date (as defined in the Underwriting Agreement), that each of the representations and warranties made by the Fund to the Underwriters (as defined in the Underwriting Agreement) in Section 1 of the Underwriting Agreement is true and correct. In addition, the Fund hereby represents and warrants to the Investor on and as of March 25, 2013 and as of the Closing Date, Purchaser that:
(ia) The Fund (i) has been duly formed and has legal existence as a statutory trust and is in good standing under the laws of the State of Delaware; (ii) has full power and authority to own, lease and operate its properties and assets, and conduct its business as currently conducted; (iii) is duly authorized licensed and qualified to executetransact business and is in good standing in each jurisdiction where it owns or leases property or in which the conduct of its business or other activity requires such qualification, deliver except where the failure to so qualify or to be in good standing would not have a material adverse effect on the Fund.
(b) The Fund has full power and authority to enter into this Agreement and to perform all of the Agreement; the terms and provisions hereof to be carried out by it. This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Fund. Assuming due authorization, execution and delivery by the other parties thereto, this Agreement constitutes a legal, valid and binding obligation of the Fund and, assuming that the party to the Agreement other than the Fund has the power and authority to enter into and perform the Agreement and the Agreement has been duly authorized, executed and delivered by such party and is a valid, legal and binding agreement of such party, enforceable against such party in accordance with its terms, subject to the Agreement is a valid and binding agreement qualification that the enforceability of the Fund, enforceable against the Fund in accordance with its terms except that (i) such enforcement ’s obligations thereunder may be subject to limited by U.S. bankruptcy, insolvency, reorganization, moratorium, or other fraudulent conveyance and similar laws now or hereafter in effect affecting creditors’ rights generally, whether statutory or decisional, and to general equitable principles (ii) the enforceability thereof regardless of whether enforcement is subject to the general principles of equity (whether such enforceability is considered sought in a proceeding in equity or at law);, and except as enforcement of rights to indemnity or contribution thereunder may be limited by federal or state securities laws.
(iic) The Fund has an authorized capitalization of 500,000,000 shares of capital stock, Shares to be issued and all of delivered to and paid for by the issued shares of capital stock of the Fund Purchasers in accordance with this Agreement have been duly authorized and validly issued, are fully paid and non-assessable; there is no subsidiary of the Fund; the holders of outstanding shares of capital stock of the Fund are not entitled to pre-emptive or other rights to acquire the Shares;
(iii) All of the Shares to be issued and sold by the Fund to the Investor hereunder have been duly authorized and, when issued and delivered to the Purchasers against payment therefor as provided herein and therein, by this Agreement will be have been validly issued and will be fully paid and non-assessable;nonassessable.
(ivd) The compliance Fund’s Annual Report on Form N-CSR for the fiscal year ended September 30, 2023, as filed with the SEC on November 30, 2023 and as amended on April 3, 2024 and April 18, 2024, and the Fund’s Semi-Annual Report on Form N-CSRS for the period ended March 31, 2024, as filed with the SEC on May 29, 2024 (collectively, the “Disclosure Documents”), do not contain any untrue statement of a material fact, except to the extent updated or corrected in a subsequent filing by the Fund with the SEC. The SEC Reports fairly describe, in all material respects, the general nature of the provisions business and principal properties of the Company and its Subsidiaries. Except as disclosed in the Disclosure Documents, since March 31, 2024, there has been no material adverse change in the condition (financial or otherwise), business prospects, management, net assets or results of operations of the Fund, whether or not arising in the ordinary course of business (other than changes resulting from changes in securities markets generally).
(e) The financial statements, including the statement of assets and liabilities, together with any related notes or schedules thereto, included in the Disclosure Documents present fairly the financial position of the Fund as of the dates and for the periods indicated and such statements were prepared in accordance with generally accepted accounting principles in the United States applied on a consistent basis.
(f) None of (i) the execution and delivery by the Fund of this Agreement, (ii) the issuance and sale by the Fund of the Shares as contemplated by this Agreement will not conflict and (iii) the performance by the Fund of its obligations under this Agreement (A) conflicts with or will conflict with, or results in or will result in a breach or violation of any the declaration of trust (as amended and restated from time to time), the supplement to the amended and restated declaration of trust dated October 24, 2023, bylaws or similar organizational documents of the terms Fund, (B) conflicts with or provisions will conflict with, results in or will result in a breach or violation of, or constitutes or will constitute a default or an event of default under, or give rise to a right results in or will result in the creation or imposition of termination under (i) the organizational document any lien, charge or encumbrance upon any properties or assets of the Fund or under the terms and provisions of any of its subsidiariesagreement, (ii) any indenture, mortgage, deed of trustloan agreement, loan agreement note, insurance or surety agreement, lease or other agreement or instrument to which the Fund or any of its subsidiaries is a party or by which the Fund or any of its subsidiaries is it may be bound or to which any of the properties property or assets of the Fund or any of its subsidiaries is subject, except which breach, violation, default, lien, charge or (iii) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Fund or any of its subsidiaries or any of their properties, except, in the case of clause (ii) or (iii), as encumbrance would not, individually or in the aggregate, not have a material adverse effect on the consolidated financial positionFund, shareholders’ equity or (C) results in or will result in any violation of operations any order, law, rule or regulation of any court, governmental instrumentality, securities exchange or association or arbitrator, whether foreign or domestic, applicable to the Fund and its subsidiaries (taken as a whole) following the Closing, or affect the due authorization and valid issuance of the Shares;
(v) No consents, approvals, authorizations, orders, registrations or qualifications of or with any court or governmental agency or body having jurisdiction over the Fund Fund’s properties, except which violation would not have a material adverse effect on the Fund.
(g) No consent, approval, authorization, notification or order of, or filing with, or the issuance of any license or permit by, any federal, state, local or foreign court or governmental or regulatory agency, commission, board, authority or body or with any self-regulatory organization, other non-governmental regulatory authority, securities exchange or association, whether foreign or domestic, is required by the Fund for the execution, delivery consummation by the Fund of the transactions to be performed by the Fund or the performance by the Fund of all the Agreement;
(vi) No stamp or other issuance or transfer taxes or duties terms and no capital gains, income, withholding or other taxes are payable provisions to be performed by or on behalf of the Investor under Federal law or the laws of the State of Maryland or New York or any political subdivision or taxing authority thereof or therein it in connection with the initial sale and delivery by the Fund of the Shares to or for the account of the Investor; and no registration, documentary, recording, transfer or other similar tax, fee or charge by any government authority is payable each case as contemplated in connection with the execution, delivery, filing, registration or performance of the Agreement;
(vii) Assuming the accuracy of the representations and warranties of the Investor set forth in the this Agreement, the offer, sale except such as (i) may be required and issuance of the Shares to be issued in conformity with the terms of the Agreement constitute transactions exempt from the registration requirements of Section 5 of have been obtained under the Securities Act, the Securities Exchange Act of 1934, as amended, or the Investment Company Act of 1940, as amended (the “Investment Company Act”), or (ii) which failure to obtain would not have a material adverse effect on the Fund.
(h) Except as otherwise disclosed by the Fund to the Purchasers, there is no action, suit, claim, inquiry, investigation or proceeding affecting the Fund or to which the Fund is a party before or by any court, commission, regulatory body, administrative agency or other governmental agency or body, whether foreign or domestic, now pending or, to the knowledge of the Fund, threatened against the Fund, except which would not have a material adverse effect on the Fund.
(i) The operations of the Fund are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the Money Laundering Control Act of 1986, as amended, the Bank Secrecy Act, as amended, the United and Strengthening of America by Providing Appropriate tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of 2011, the money laundering statutes of all applicable securities laws jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Fund with respect to the Money Laundering Laws is pending or, to the knowledge of the United States and each Fund after reasonable inquiry, threatened.
(j) The Fund intends to direct the investment of the states whose laws govern the offer and sale proceeds of the Shares; andoffering of the Shares in such a manner as to comply with the requirements of Subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”), and has qualified and intends to continue to operate in compliance with the requirements to maintain its qualification as a regulated investment company under Subchapter M of the Code.
(viiik) Assuming Neither the Investor has Fund, nor to the requisite power and authority to be the lawful owner knowledge of the SharesFund, after reasonable inquiry, any trustee, officer, agent, employee or affiliate of the Fund is (i) currently subject to any sanctions administered by OFAC, the Shares European Union, the United Kingdom, or the United Nations or any other relevant sanctions authority or (ii) located, organized or resident in a country or territory that is subject to sanctions by OFAC or any other relevant sanctions authority; and the Fund will have good and marketable title and be free and clear not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any lien person currently subject to any U.S. sanctions administered by OFAC or encumbrance when initially issued and delivered at Closing except any other relevant sanctions authority.
(l) The Fund is duly registered with the Commission under the Investment Company Act as imposed by U.S. securities laws and for a non-diversified, closed-end management investment company; the transfer restrictions set forth in the Lock-Up Letter Agreement (the form of which is attached as Exhibit A-2 to the Underwriting Agreement) to be executed by the Investor in favor of Barclays Capital Inc., Credit Suisse Securities (USA) LLC and UBS Securities LLC, as representatives provisions of the several Underwriters named Fund’s declaration of trust (as amended and restated from time to time), the supplement thereto relating to 8.75% Series A Preferred Shares and bylaws comply in Schedule 1 to all material respects with the Underwriting Agreementrequirements of the Investment Company Act.
Appears in 1 contract
